1. Decisions

Until the 1960s, judges had at their disposal a number of techniques for identifying those flawed decisions which were to have legal effects. They distinguished between issues of fact, which were within the decision-making power of officials unless an erroneous conclusion deprived the official of jurisdiction, and issues of law, which engaged the High Court's supervisory jurisdiction. They distinguished between errors of law which deprived an official of jurisdiction and those which did not; the latter were not subject to the High Court's supervisory jurisdiction unless they were apparent on the face of the record of the challenged decision. This allowed them to say that some erroneous or allegedly erroneous decisions were void (i.e. had never had legal effect) while others were voidable (i.e. valid and effective until successfully challenged).Footnote ² Such flexibility lay at the heart of administrative law. To some extent, it has been preserved. Judicial review of alleged errors of law is sometimes considered to be unnecessary or inappropriate.Footnote ³

In some directions, flexibility has expanded. The doctrinal distinction between questions of law, which were judicially reviewable, and questions of fact, which were not (unless the fact in issue is essential to the decision-maker's having power to act, sometimes called a “jurisdictional” or “collateral” fact), has been eroded as courts have started to treat acknowledged errors as to “non-jurisdictional” facts as having equivalent effect to errors of law.Footnote ⁴ This may have a statutory basis, as where a statute imposes on the decision-maker a legal duty to make a correct factual decision. Sometimes, by contrast, officials have a duty only to establish and follow a reasonably reliable system for deciding the facts, accepting that some errors are bound to slip through.Footnote ⁵ The Supreme Court has threatened to undermine the doctrinal distinction between fact and law, by suggesting that some questions are issues of law for the purpose of tribunals with appellate jurisdiction on questions of law but not fact, and issues of fact for the purpose of the High Court when deciding whether it is proper to exercise its supervisory jurisdiction over a decision of the tribunal.Footnote ⁶ This allows tribunals potentially to make errors of law without its leading inescapably to the decision's being subject to judicial review. Litigants can have their disputes determined by an independent and appropriately expert tribunal, without imposing excessive burdens on the judiciary or interfering with the efforts of specialist appellate tribunals to secure a consistent approach among first-tier tribunals. The question, as Lady Hale J.S.C. said in R. (Cart) v Upper Tribunal (Public Law Project and another intervening), is “what level of independent scrutiny … is required by the rule of law”.Footnote ⁷ But it also deprives the law of conceptual and analytical coherence.

In other directions, flexibility has been significantly limited since the judgment of the House of Lords in Ridge v Baldwin.Footnote ⁸ It was established there that a breach of the common-law requirement for a fair hearing would usually make a decision void. After Anisminic, and particularly following the interpretation which the House put on Anisminic in R. v Hull University Visitor, ex parte Page,Footnote ⁹ it became commonplace to treat a breach of any statutory or common-law requirement for administrative action as making it ultra vires, a term which is often confusingly treated as being synonymous with “without jurisdiction”,Footnote ¹⁰ and as making the rule or decision “void” or “a nullity”. But the grounds for review are not all issues of law, except in the trivial sense that anything done in breach of a legal rule involves an error of law. Anisminic was a true, indeed paradigm, “error of law”: misinterpreting the statutory instruments which conferred power to act. By contrast, taking account of irrelevant considerations, acting with an improper purpose, reaching an unreasonable decision, and a fortiori reviewable errors of fact, are acts which courts treat as erroneous, but they are not “errors of law”, any more than a driver who negligently runs down a pedestrian commits an “error of law”.

This deprives administrative lawyers of a useful tool for reaching sensible results, and it further reduces the law's coherence. By expanding the notion of “error of law”, we have deprived it of analytical coherence and usefulness. It debases the notion of “error of law” to say that taking account of an irrelevant consideration, or acting when biased, or failing to allow a person a fair opportunity to put his or her case, is an error of law. They are simply examples of procedural steps which fail to meet legal requirements. At the same time, it has deprived the concept of “jurisdiction” of any useful, analytical function. If any error deprives a body of jurisdiction, the notion of a “jurisdictional error” is redundant. In addition, by undermining the technical distinction between “void” and “voidable” rules and decisions, it has deprived judges of a key tool for achieving sensible results.

Despite saying that all errors of law make decisions invalid, courts usually manage to get sensible results. Orthodox theory misrepresents what judges do, and so fails to offer a reliable guide to what they will decide. In reality, legal rules are designed and applied to allow courts sometimes to give legal effect to a flawed decision. For example, the distinction between “mandatory” requirements, breach of which would deprive a decision-maker of power to act, and “directory” requirements, breach of which does not have that effect, requires judges to consider the importance of the requirement and the harm done by its breach in the context of the objects of the statutory scheme of which it forms part.Footnote ¹¹ Sometimes, substantial rather than full compliance with a requirement will suffice, if the person affected has not been prejudiced significantly.Footnote ¹²

The effect depends on the circumstances of the case. Where a claimant challenges a decision directly determining his or her position as an individual, rather than a rule of general application, and the duty was owed to that claimant personally, the breach will make the decision both unlawful and ineffective. Take, for instance, procedural fairness. In R. v Secretary of State for the Home Department, ex parte Doody, the Home Secretary's refusal to allow a life prisoner to make representations, or know what factors the Home Secretary would consider relevant or what the judicial recommendation was, before deciding on the period to be served before the prisoner could be eligible for release on licence, or to give reasons for departing from the judicial recommendation, was unlawful and ineffective, and the House of Lords set out the Home Secretary's obligations in declarations.Footnote ¹³

2. Rules

Rules are sometimes treated differently from individualised decisions. We need to be able to discover reasonably easily what our legal obligations are, and that is possible only if legislation is reliably published and predictably given effect. Despite the well-known mantra that ignorance of the law is no excuse, we might expect the rule of law to generate a constitutional principle (akin to that established in relation to individualised decisions in Anufrijeva Footnote ¹⁴) that people are not bound by legal rules which they could not have discovered with due diligence. Statute provides such a rule in relation to bye-laws made by a local authority. They do not have effect until confirmed by the responsible “confirming authority” (a central government body). The local authority must give notice of its intention to apply for confirmation in at least one local newspaper, and, for at least a month before applying for confirmation, must deposit a copy of the bye-law at its offices and make it available for public inspection at all reasonable times without payment.Footnote ¹⁵ If these requirements are not fulfilled, the bye-law is not invalid, but is ineffective.

The position regarding statutory instruments is different. The Statutory Instruments Act 1946, s. 2(1), requires each statutory instrument to be numbered by the Queen's Printer and, unless a subsequent statute has provided otherwise, to be printed and sold. The general principle, however, is that printing and sale are not preconditions to the effective operation of a statutory instrument. Where a statute provides for a statutory instrument to take effect when made (subject to the possibility of later disallowance), it is operative despite a subsequent procedural failure (for example, omitting to publish it). The Act offers limited protection against legal uncertainty by providing that a person charged with contravening a statutory instrument has a defence if he or she can prove that the instrument had not been issued when the alleged offence occurred, unless the prosecution proves that reasonable steps had been taken to bring the purport of the statutory instrument to the attention of the public generally, or those people likely to be affected by it, or the defendant personally.Footnote ¹⁶ Otherwise, however, there is no rule that unpublished subordinate legislation is ineffective.

These examples show that the rules of administrative law do not treat all errors as errors of law, or treat them as making a decision or rule invalid. Legal rules are inconsistent with the propositions with which the article opened. It is a matter of law, not discretion at the remedial stage. Can the propositions be saved?

1. The High Court on an application for judicial review

The High Court, with its inherent supervisory jurisdiction over all “inferior courts and tribunals”, always has jurisdiction to decide whether another decision-maker has made an error, unless that has been expressly or by necessary implication excluded by statute.Footnote ²⁷ Statutory jurisdictions require more care. For example, an employment tribunal in a claim for unfair dismissal does not have power to decide whether a public-sector employer succeeded in its attempt to dismiss an employee, but only whether dismissal was unfair. Where the employee challenges the lawfulness of the employer's decision to dismiss the employee, that issue must be resolved in other proceedings, for example by applying for judicial review.Footnote ²⁸ Similarly, the Court of Appeal does not have power to determine the lawfulness of a lower court's decision if no statutory appeal lies to the Court of Appeal in respect of that sort of decision.Footnote ²⁹

If the court or tribunal has power to decide the matter, the next issue is whether it should exercise it. The High Court usually intervenes only if the claimant has exhausted other reasonably available means of seeking redress. As Lord Donaldson M.R. explained in Guinness:

The Supreme Court has underlined the importance of deploying limited judicial resources only where they are really needed to protect the rule of law.Footnote ³¹ The issue was when, if ever, judicial review of unappealable decisions of the Upper Tribunal should be permitted. Rejecting the idea that it should always be available on points of law, Baroness Hale said, “It is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon the factual conclusions of the tribunal.”Footnote ³² She continued, “The real question, as all agree, is what level of independent scrutiny outside the tribunal structure is required by the rule of law. … There must be a principled but proportionate approach.”Footnote ³³ Lord Dyson considered, for several reasons, that the rule of law did not require unrestricted judicial review of the Upper Tribunal: the status of the Upper Tribunal; the multiple checks between the First-tier Tribunal and the Upper Tribunal; and conserving resources.Footnote ³⁴

Tying availability of judicial review to the rule of law generates two rules. First, litigants must exhaust other means of redress. Secondly, use of judicial resources must be proportionate to the significance of the issue. Those rules are subject to a condition based on fairness under the rule of law: overall, the claimant must have had a fair opportunity to have the lawfulness of his or her treatment adjudicated on by an independent and impartial tribunal.

2. Other forums

If the lawfulness of a decision or rule is raised outside the High Court (for example, in the context of an action in the county court for damages for tort, or a criminal prosecution), the tribunal must be satisfied that it is an appropriate body to determine a question of that kind. Here, four principles are in play. The first, effectiveness of judicial protection, applies as in the High Court, although its implications may be different. For example, in criminal proceedings, the court might have to consider whether an application for judicial review, rather than a statutory appeal, was a reasonably available remedy which should have been pursued before contesting the criminal proceedings. Where a defendant seeks to challenge the validity of a bye-law under which the charge is brought, there will usually have been no reason to foresee the risk of prosecution under the bye-law; the defendant might even have been ignorant of it before being charged. It would therefore not be disproportionate to allow the defendant to consume judicial resources by contesting the lawfulness of the bye-law in criminal proceedings.

This is reinforced by the second principle, that of legality, which requires that public bodies have a basis in positive law to justify their actions.Footnote ³⁵ It is unacceptable in principle for a person to suffer coercion or penalty without a lawful justification. If the coercive action is in respect of breach of a rule which is itself unlawful, coercive action will usually be unjustified. This principle may, of course, be overridden by statute.

The third and fourth principles are certainty and finality. Legal certainty requires that people, including both public bodies and those with whom they deal, generally be able to assume that a rule, order or decision which has not been challenged is lawful, and act accordingly. In Secretary of State for the Home Department v Draga,Footnote ³⁶ a Kosovan national, who had been recognised as a refugee and given indefinite leave to remain in the UK, was convicted of various criminal offences. After his release from prison, the Home Office gave notice of intention to make a deportation order against him, on the basis of a 2004 statutory instrument which provided that one of the offences of which Mr Draga had been convicted was sufficiently serious to merit deportation. He appealed, but in 2007 the First-tier Tribunal upheld the notice. The Home Secretary made a deportation order, and Draga was detained pending deportation. In an unrelated case in June 2009, the Court of Appeal held that the 2004 statutory instrument was invalid.Footnote ³⁷ The Home Secretary thereupon made an order ending Mr Draga's refugee status, which meant that he became liable to deportation on a ground independent of the 2004 Order. The First-tier Tribunal and, on appeal, the Court of Appeal decided that this had been a mere device to circumvent the invalidity of the 2004 Order. The deportation order was therefore unlawful, and Mr Draga was entitled to damages for false imprisonment from the point at which the Home Secretary should have revoked the deportation order in the light of the Court of Appeal's 2009 judgment.

As the 2004 statutory instrument had been invalid ab initio, had the Home Secretary been acting tortiously in detaining Mr Draga between 2007 and 2009? The Court of Appeal thought not. Whilst the Home Secretary had made an error of law when relying on the 2004 Order to detain him, and the error was material to the decision to detain him and so could give rise to liability for false imprisonment,Footnote ³⁸ the Home Secretary was not liable for the period until June 2009, when the 2004 Order had been held to be invalid. This was because the Home Secretary had been entitled to rely and act on the First-tier Tribunal's 2007 judgment upholding her notice of intention to make a deportation order. There was a need for finality once the appeal was determined and the time allowed for appealing had passed.

The 2009 Court of Appeal decision gave grounds for applying to the Home Secretary to revoke the deportation order against Mr Draga, “but it would not invalidate either the Tribunal's decision finally determining the appeal, or the deportation order made in reliance on that final determination”.Footnote ⁴⁰ In effect, following the Tribunal's 2007 decision, the matter had been res judicata as between the parties.

The principles of finality and certainty are subject, however, to two conditions based on fairness. First, the person affected must have had a reasonable opportunity to challenge the rule, order or decision. Secondly, it must not be unfair to expect him or her to have done so. As already noted, a person aggrieved by a decision addressed to him or her individually can be expected to test its lawfulness by way of a convenient statutory procedure. If the person does not do so, it will not be unfair to treat the order or decision as lawful in subsequent enforcement proceedings.Footnote ⁴¹ Where no statutory procedure is conveniently available, people should usually apply for judicial review rather than resort to a procedure less well adapted for a public-law challenge.Footnote ⁴² But a person has no particular reason to undertake such a challenge before he or she is personally affected. A bye-law does not affect one person more than another, so there is no reason to expect a particular person to have brought proceedings to challenge it, incurring expense and perhaps requiring travel to the High Court to apply for judicial review.Footnote ⁴³ For this reason, on a prosecution for breaching a bye-law, a magistrates' court has always been regarded as having jurisdiction to decide whether the bye-law is valid, whether the challenge is brought on the basis of patent or latent, or substantive or procedural, errors of law.Footnote ⁴⁴

In intermediate cases, there is a degree of flexibility. For instance, where a local authority imposes a general increase in the rent for its social housing, the general character of the decision brings it closer to a rule or bye-law than an individualised decision. Tenants may not have the knowledge or means to seek judicial review. It would therefore be unfair to prevent them from alleging the unlawfulness of the decision as a defence when the council seeks possession for non-payment of rent.Footnote ⁴⁵ In this area, as Lord Nicholls said in R. v Wicks, convenience is an important consideration – both convenience for the parties and convenience for the courts – when deciding which court should take responsibility for determining an issue and when. It is an aspect of our first principle, the need for effective judicial protection. Lord Nicholls correctly said that rigid rules are therefore out of place; judges should not seek to rely on a sharp boundary between public and private matters, or between different grounds of public-law unlawfulness.Footnote ⁴⁶

A fifth principle is that courts do not act in vain. They do not normally determine moot points, or issues raised by someone who has nothing to lose or gain from the case. Sometimes an issue of constitutional importance arises which affects no person more than anyone else. This is the case, for example, in relation to matters concerning overseas aid or international relations.Footnote ⁴⁷ The importance of the issues might make it appropriate for a court to hear the case. Conversely, if the matter is of limited general importance, a relatively high level of personal interest may be required to justify devoting judicial resources to it.Footnote ⁴⁸ The ultimate question is whether the claimant alleges that something has “gone wrong of a nature and degree which require[s] the intervention of the court and, if so, what form that intervention should take”.Footnote ⁴⁹ This applies to claimants seeking a declaration of incompatibility under section 4 of the Human Rights Act 1998 as it does to those seeking other remedies.Footnote ⁵⁰ It relates back to our first principle, that judicial resources should be used to make judicial protection as effective as possible by using it where it is most needed.

1. Errors when first embarking on an inquiry

A decision made by an unauthorised person (such as one who does not satisfy statutory criteria, or to whom there has been an improper delegation, or who is biased) cannot impose obligations on a person who is the subject of it. Such flaws prevent the decision-maker from lawfully embarking on its deliberation, and logically ought to make any purported decision null and void. Nevertheless, administrative realism sometimes demands that this should be relaxed. For example, courts are increasingly willing to countenance delegation or sharing of administrative functions, particularly if the designated decision-maker retains political and legal responsibility for the decision. Originally established in relation to central government,Footnote ⁵¹ this has spread to some other public bodies in the light of practical reasonableness and organisational necessity.Footnote ⁵² Alternatively, if the unauthorised decision-maker appears to have authority, he or she may be viewed as the agent rather than the delegate of the authorised decision-maker, and so as standing in that person's shoes, at least when the act would have been within the legal competence of the designated person.Footnote ⁵³ If an appropriate person is acting but statutory conditions are not met, judges have again given themselves room for manoeuvre by distinguishing between “mandatory” preconditions, breach of which make a decision-maker's actions unlawful, and “directory” preconditions, which do not, or by assessing the relative importance of the requirement and the harm done by its breach in the context of the objects of the statutory scheme of which it forms part. In this way, we can treat some unlawful acts as not invalidating decisions.Footnote ⁵⁴

2. Errors during the process of inquiring

Flaws which may arise in the course of the proper decision-maker's deliberation include failure to comply with a statutory duty to consult or a legitimate expectation of being consulted, or with the common law's requirements of fairness. The decision-maker might consider itself bound to reach a particular conclusion on account of a policy, or pursue an improper purpose, or act fraudulently, or take account of a consideration which is later thought to be irrelevant. As these flaws might not affect the outcome, judges have been reluctant to say that they must always invalidate decisions. In relation to mixed purposes and irrelevant considerations, much depends on whether there are proper grounds which on their own would justify the decision. The effect of failing to comply with statutory procedural requirements depends on the significance of the requirement. A court has considerable leeway in deciding whether it is appropriate to treat an outcome as unlawful.Footnote ⁵⁵ Requirements to notify and consult people are particularly likely to be treated as central to the decision-making scheme. Nevertheless, people who are not prejudiced by failure to notify or consult, or who were notified or consulted, will not subsequently be able to challenge the decision or rule on the basis that someone else suffered prejudice through not being notified or consulted.Footnote ⁵⁶

Some legal conditions do not stem from the statute establishing the scheme. The common-law principle of fairness applies generally, but its application depends on the context in which decision-making is taking place. There are, however, two qualifications. First, it does not apply to rule-making activities in the absence of statutory provision or an act of the rule-maker which has given rise to a legitimate expectation that a particular procedure will be followed. Secondly, the notion that “justice delayed is justice denied” does not generally apply to the duty of fairness at common law, although where Article 6.1 of the ECHR applies (i.e. to the determination of criminal charges and civil rights or obligations) there is a right to a fair hearing within a reasonable time.

If a decision-maker to whom the duty to act fairly applies adopts an unfair procedure, the resulting decision is usually unlawful and of no effect.Footnote ⁵⁷ But there are five exceptions. First, only the party whose right to or expectation of a particular procedure was infringed may rely on the infringement to challenge the resulting decision. A rule or decision will not be set aside at the request of X solely on the ground that Y suffered a breach of a fairness-related duty to him or her if that breach did not adversely affect X.Footnote ⁵⁸ Secondly, a failure of fairness at one stage in a decision-making process may be cured by a properly protective procedure being employed at a later stage, if the overall effect is that the person who was treated unfairly does not suffer prejudice.Footnote ⁵⁹ Thirdly, a person may consent to what would otherwise be a breach of the duty of fairness, as long as this is done expressly, consciously, and with knowledge of the facts.Footnote ⁶⁰ Fourthly, as the assessment of fairness is made retrospectively after the end of the process, a failure (for example, denying a person the right to make representations) may sometimes not make the proceedings unfair if the person suffered no prejudice as a result, for instance because the matter was too clear to admit of innocent explanation (though judges are rightly cautious about deploying this ground for upholding the lawfulness of decisions flawed by apparent unfairness).Footnote ⁶¹ Finally, when a procedure is required by a legitimate expectation, it may be permissible for the decision-maker to decline to follow that procedure if there is a good, public-interest reason for doing so, as long as the decision-maker has given due weight to the expectation as a relevant consideration in deciding on the procedure to adopt.Footnote ⁶²

3. Errors in the final deliberation and decision

At the end of the process of deliberation, one type of flaw arises when the decision-maker ends up making a decision or rule which lies outside the range of possibilities authorised by the legislation, or is inconsistent with someone's legally enforceable legitimate expectation, or is unreasonable as that term is understood in common law. These kinds of flaws invariably make the decision a nullity. Another type of flaw concerns the reasoning which leads to or supports the decision. The decision-maker may, when actually making the final decision, be swayed by irrelevant considerations, or fail to consider relevant matters, or make a serious error in deciding the relevant facts, or improperly regard its discretion as fettered by a policy, or be actuated by improper purposes, fraud or malice. This type may, but sometimes does not, make the decision a nullity. This type of error includes:

• – taking account of an irrelevant consideration;

• – failing to take account of a relevant consideration;

• – making an error of fact which is sufficiently important to render the decision unlawful;

• – exercising a power for an improper purpose;

• – acting fraudulently;

• – giving insufficient weight or effect to a person's legitimate expectation;

• – making an unreasonable decision;

• – making a decision or taking an action which is not authorised by law (because, for example, one has misunderstood or misinterpreted the relevant law, misapplied it to the relevant facts, or made a mistake as to the application of relevant principles);

• – not making a decision or taking an action which is required by law.

In principle, any of these errors could make the decision unlawful. It is clear that a person who is adversely affected may obtain a quashing order, and that the quashed decision then has no further effect. Beyond that, however, the implications of unlawfulness are varied, and are considered below.

4. Errors after the decision has been made

After the decision or rule has been made, the decision-maker may fail to meet formal or procedural requirements, such as giving notice to people affected by it, laying a statutory instrument before Parliament, or providing reasons. Logically, this ought not to make the decision retroactively void, although it should limit its enforceability. Then people implementing, enforcing or reviewing the decision or rule may fail to comply with requirements as to the action they are allowed to take, and the manner and circumstances in which they may take it. As we shall see, the effect of these flaws on decisions depends on the circumstances of the case.

1. The kinds of remedies being sought

A claimant may seek remedies for different purposes. An unlawful act may give rise to some remedies being available while others are not. Suppose, for example, that police officers, executing a search warrant, are occupying my business premises. I successfully challenge the validity of the warrant. The court will issue a quashing order or a declaration to the effect that the warrant is invalid. I then claim a mandatory injunction requiring the officers to leave the premises, and damages for trespass to land. My clients claim damages for trespass to goods in respect of their papers which the police have removed from the premises. There is little doubt that a court would grant an injunction to end the trespass. It does not necessarily follow, however, that I would succeed in my claim for damages, or that my clients would succeed in theirs. Merely reversing the immediate consequences of an unlawful act would raises different considerations from awarding compensation. In English law, there is no general right to compensation for acts which are unlawful in a public-law sense. Damages are available only if public-law unlawfulness also gives rise to a private-law claim. The relationship between public and private law is therefore crucial.

2. The precise interests of and legal relationships between the parties

Acts and orders, as a matter of law, are not simply either valid or void. They operate in and on an often complex web of legal relationships, and their effects depend crucially on the precise nature of the legal rights, powers and obligations of each actor towards each other or to the world. A person's legal rights and liabilities depend on the rules governing that person's relationships with other people, some of which apply to limited subject-matter, people, times or places. To say that something (such as a decision, or detention) is lawful or unlawful, valid or void, is to use a shorthand expression which expresses in general terms the effect of what may be a complicated network of rules and interests governing complex relationships. For example, requirements to notify and consult people, whether the public generally or particular groups or individuals, are particularly likely to be treated as central to the decision-making scheme. Nevertheless, people who are not prejudiced by failure to notify or consult, or who were notified or consulted, will not subsequently be able to challenge the decision or rule on the basis that someone else suffered prejudice through not being notified or consulted.Footnote ⁶³ To this extent, the effect of such a flaw is directional; courts will protect only those who are prejudiced, and may fashion remedies accordingly, for example by treating the scheme as generally effective except in relation to those who suffered through not being notified or consulted.

Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd Footnote ⁶⁴ illustrates the importance of distinguishing between the effect of a measure on people in respect of whom all necessary procedural steps had been taken and its effect on people who were wrongly omitted from those steps. The Minister for Labour wanted to establish a Training Board for the agricultural, horticultural and forestry industries under the terms of the Industrial Training Act 1964. Under the Act, the expenses of a Training Board were to be paid out of a levy on employers in the industry concerned. Section 1(4) of the Act required the Minister to “consult any organisation or association of organisations appearing to him to be representative of substantial numbers of employers engaging in the activities concerned …”. The Minister prepared a draft Order to establish the Board and circulated it to a number of organisations, including the Mushroom Growers Association. The Association did not receive the invitation to advise, and did not become aware of it until long after the Order had come into effect. When the Mushroom Growers Association became aware of this and found out about the letter, it claimed that the Order had no application to mushroom growers because the Minister had failed to consult them before making the Order. The Board sought a declaration that the Order bound mushroom growers. The parties agreed that the requirement of consultation under section 1(4) of the Act was mandatory, and that people who should have been consulted would not be bound if they had not been consulted. Donaldson J. declared that the Minister had been required to consult the Mushroom Growers Association, having initially identified it as a body which he ought to consult and having written to it. Sending a letter inviting the Association to give advice was merely an attempt to consult; consultation occurs only if the intended consultee receives the invitation. He therefore declared that the Order did not apply to mushroom growers.

Donaldson J. did not disagree with the parties' view that, if the Minister had treated the defendants unlawfully, the Order should still be regarded as valid and effective as against people whose representatives had been consulted. Had the mushroom growers argued that the Order as a whole was void or ineffective, he would probably have felt forced to find a way to uphold the validity of the Order, in order to avoid the collapse of the whole scheme on account of a single letter not having reached its intended recipient. There would have been no sensible justification for treating the Order as wholly void merely because of failure to consult representatives of one part of the industry.Footnote ⁶⁵

D.P.P. v Head offers a more complex example of the importance of identifying the particular legal relationship to which the challenge to a decision is relevant.Footnote ⁶⁶ Mr Head was charged with an offence contrary to section 56(1) of the Mental Deficiency Act 1913, which provided, so far as relevant: “Any person – (a) who unlawfully and carnally knows … any woman or girl under care or treatment in an institution … or whilst placed out on licence therefrom … shall be guilty of a misdemeanour …”. In 1947, the Home Secretary had made an order under the Act for Elfreda's detention as a “moral defective”,Footnote ⁶⁷ on the basis of certificates from two doctors who had not specified that Elfreda met the definition of “moral defective” as someone requiring “care, supervision and control for the protection of others”. Nevertheless, the Home Secretary's order went unchallenged. In 1955 Elfreda was released on licence and had consensual intercourse with Head. The Crown had to prove that Elfreda Henderson, with whom Head had had sexual intercourse, was a “woman … placed out on licence from” an institution “under this Act”.

The Crown argued that Elfreda's having been detained in, and released on licence from, a mental institution gave rise to a strong, factual inference that she was a mental defective, regardless of the validity of the original order for detention. The trial judge ruled that the order was conclusive as to facts stated in it, and Head was convicted. The Court of Criminal Appeal decided that the order, being unlawful, could not found an evidential inference, and quashed the conviction.Footnote ⁶⁸ The Crown's appeal to the House of Lords was dismissed, on two grounds. First, a majority agreed with the Court of Criminal Appeal.

The second ground responded to Lord Denning's dissent, in which he argued that the flaw in the original order had made it voidable, not void, allowing it to generate the evidential inference on which the Crown relied.Footnote ⁷⁰ The majority held that the distinction between void and voidable orders was irrelevant in a criminal case where there was material available which, it had been conceded, would have led to the order being quashed.

Whether the order was void or merely voidable, therefore, Elfreda's detention could not give rise to a presumption that she had been a defective where the order which gave rise to it had been defective.

This is correct. There is no reason to allow the juristic status of the order against Elfreda to determine its effect as evidence in the trial of Head. The interests affected are different, though related, and should be distinguished accordingly. This would not necessarily lead to Head's acquittal; one might argue that Head should not be allowed to take advantage of a defect which had caused Elfreda, but not Head, to be treated unlawfully.Footnote ⁷² Lord Denning's use of the void/voidable distinction was driven by the multiplicity of interests in play: he wanted to protect people who had dealt with Elfreda in good faith against liability in damages; but he allowed their interests to govern the outcome of an entirely different issue. Elfreda could have sought habeas corpus successfully.Footnote ⁷³ She could have claimed damages for false imprisonment from the Home Secretary, and from those who had detained her, unless they had statutory protection.Footnote ⁷⁴ But those matters are irrelevant to the question whether Head was guilty of a criminal offence, which, as the majority of the House of Lords thought, should not depend on the lawfulness of the original order. Different legal relationships and issues affect different legal interests to which different rules and principles are applicable.

For example, in Stellato v Ministry of Justice Footnote ⁷⁵ the claimant had been serving a ten-year prison sentence. After serving three-quarters of his sentence, he was entitled under section 33(3) of the Criminal Justice Act 1991 to be released unconditionally, but the governor purported to release him on a conditional licence. He applied for judicial review arguing that the “licence” was a nullity. Meanwhile he refused to comply with the conditions of his licence. The Home Secretary revoked his “licence” and recalled him to prison. The Court of Appeal declared that his recall to prison and his subsequent detention had been unlawful, but stayed implementation of its judgment to allow the Home Secretary to apply for leave to appeal. In the meantime, it granted conditional bail.Footnote ⁷⁶

The claimant was released but refused to comply with the bail conditions, arguing that he could not be on bail if he had not previously been on licence. Hughes L.J. ordered his arrest for breaching the conditions, revoked the grant of bail, and ordered that the claimant be detained in prison until the House of Lords decided the Home Secretary's application for leave to appeal. The House of Lords gave leave, but unanimously dismissed the Home Secretary's appeal.Footnote ⁷⁷ The claimant was then released unconditionally.

He claimed common-law damages for false imprisonment, and damages under the Human Rights Act 1998 for a violation of his right to liberty under Article 5 of the ECHR. On the common-law claim, the Court of Appeal held that he was entitled to damages for the period between his arrest for breaching the “licence” conditions and his release on bail. His subsequent arrest for breaching bail conditions did not constitute false imprisonment, because Hughes L.J., who ordered it, was a court of unlimited jurisdiction. The order therefore was valid unless revoked or quashed on appeal, and at common law justified Mr Stellato's detention. But under the Human Rights Act 1998 he was entitled to statutory damages for this period, because he had been deprived of liberty contrary to Article 5.1 of the ECHR.Footnote ⁷⁸ The Court of Appeal rejected the Home Secretary's argument that the detention had been justified under Article 5.1(b) to secure compliance with a lawful order of a court. When the Court of Appeal had granted conditional bail, Mr Stellato had been entitled to his liberty even without a grant of bail. It could therefore not give authority to detain him for breach of a condition, because imposing the conditions had not been a lawful order.Footnote ⁷⁹ It could not be said, therefore, that the claimant's detention was to secure compliance with a lawful order of a court.

It underlines the significance of careful analysis of each separate relationship if we ask what the position would have been if Mr Stellato's right to liberty depended entirely on the grant of bail, and, having been released, was arrested by a constable in disregard of the grant of bail. If the claimant sued for false imprisonment, would the constable be allowed to argue that the grant of bail had been unlawful? Not if a High Court judge had granted bail, because of the special status of High Court judges. If, however, bail had been granted by a police officer or a magistrates' court, the question would be whether there is a good reason to allow the constable to disregard an apparently lawful grant of liberty by another official where the constable thinks that it was legally flawed. One might say that the principles of finality and legal certainty and the right to liberty are sufficiently important to require officials to respect apparently regular judicial decisions granting bail. On the other hand, there is no principled reason to impose liability in damages on an official who acts in the correct belief that a person has no legal right to be at large. The question is best analysed as being who should be required to show that a person is lawfully (or unlawfully) at large.

In relation to negligence liability, public interests and the availability of other remedies are significant when courts decide whether someone owes a duty of care to another. In Mohammed v Home Office,Footnote ⁸⁰ the Court of Appeal struck out immigrants' claims against the Home Office for negligently delaying a decision on their applications for leave to remain in the UK. The court held that it would not be fair, just and reasonable to impose a duty of care in the discharge of a statutory function when the applicants could apply to the Parliamentary Commissioner for Administration to investigate allegations of injustice caused by maladministration. But administrative-law unlawfulness may still help a claimant to obtain damages by depriving a public body of a chance to justify its interference with a right. For example, in Mohammed's case the claimants argued that the Home Office's delay had interfered with their right to respect for private and family life under Article 8.1 of the ECHR and was unlawful in an administrative-law sense. That unlawfulness would mean that an interference with the Article 8 right would not be “in accordance with the law”, so the Home Office would be unable to justify the interference under Article 8.2 and making the Home Office's conduct unlawful by virtue of section 6(1) of the Human Rights Act 1998, potentially giving rise to damages under section 7. The Court of Appeal accordingly allowed that claim to proceed to trial. A public-law flaw may thus incidentally assist a claimant for damages by restricting a private-law or public-law defence.

3. The relationship between public and private law

To sound in damages, an unlawful decision must authorise interference with a right, or amount to a private-law wrong. In principle, when the wrong is trespassory, the claimant has in principle a right to damages for trespass, unless the person who enters can point to a legal authorisation. Failing that, the wrong is automatically tortious, although statute may limit liability.Footnote ⁸¹ But the cases show that this principle is qualified, because not all errors in a decision-making process deprive a person implementing the decision of its protection for the purposes of private law. Three techniques may be used to protect a public body against private-law consequences of an unlawful act. One is to alter private law by limiting the scope of, or remedies for, the relevant tort. Another is to distinguish conceptually between unlawfulness in public law and in private law, so that a public-law wrong does not automatically translate into private-law liability. The third technique is to treat public officials as occupying a special position in private law.

The first two techniques were deployed in R. (Lumba) v Secretary of State for the Home Department (JUSTICE and others intervening).Footnote ⁸² A foreign-national prisoner (FNP), having served his sentence, was detained pending deportation by order of the Home Secretary. She had power to do this, but she had published a policy of favouring release on bail when possible. Much later, she disclosed that she had really been applying a secret policy of virtually never releasing a FNP on bail, instead of her published policy. Lumba argued that the decision to detain him breached public-law requirements, and claimed damages for false imprisonment. It was accepted, however, that Lumba's circumstances were such that he would have been detained whichever policy had been followed.

The Supreme Court decided that the Home Secretary had acted unlawfully in public law when deciding to detain Lumba, because her secret policy had improperly fettered her discretion, and because she had a legal duty to apply the published policy, unless there were good reasons for not doing so.Footnote ⁸³ But did this mean that Lumba was entitled to substantial, or indeed any, tortious damages? In tort, it was previously unchallenged orthodoxy that detaining a person without lawful authority amounted to false imprisonment, which was a trespass to the person for which the victim was entitled to damages at large without needing to prove special damage. Yet most of the justices baulked at awarding substantial damages to a violent criminal awaiting lawful deportation when he would have been detained even if the Home Secretary had applied the published policy. Six justices decided that Lumba was entitled to succeed in an action for false imprisonment,Footnote ⁸⁴ but three (Lord Collins, Lord Kerr and Lord Dyson) thought it proper to award only nominal damages of £1. This left the rules governing liability intact, but changed the law of damages.

Lord Brown of Eaton-under-Heywood and Lord Rodger of Earlsferry JJ.S.C., by contrast, preferred to change the rules governing liability. They held that mere misuse of power to detain (i.e. unlawful acts in the course of pursuing a lawful course of action) would lead only to public-law remedies. Only if a decision-maker has no power to make the decision would the public-law unlawfulness make detention into false imprisonment.Footnote ⁸⁵ Lord Dyson rejected this, commenting, “The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires”, and adding that Lord Brown's approach would “would put the clock back to the pre-Anisminic era”.Footnote ⁸⁶ But, as Lord Walker pointed out, Anisminic was not concerned with the relationship between public and private law, and it was not clear that it should apply in the context of tort. He and Lord Hope considered that “where an extant statutory power to detain has been wrongly used there would be a private law claim only if the misuse amounted to an abuse of power”.Footnote ⁸⁷

This implicitly distinguishes the conditions for unlawfulness in public law from those for liability in private law, and allows an order to be unlawful in public law but lawful in private law. Such a bifurcated notion of unlawfulness recognises that different interests and policies are in play in relation to different sorts of remedies. Even Lord Dyson did not think that every legal flaw in the process of authorising detention would lead to liability for false imprisonment. In his view, to have that effect an error would need to bear on and be relevant to the decision to detain (rather than another aspect of the detention such as the status of an official who makes the decision or the conditions of detention), and be capable of affecting the result (which, as Baroness Hale said, “is not the same as saying that the result would have been different had there been no breach”).Footnote ⁸⁸ In addition, the flaw would have to be substantive rather than procedural;Footnote ⁸⁹ having a decision made by an official of too low a grade would not make detention unlawful.Footnote ⁹⁰ Some justices formulated other qualifications.Footnote ⁹¹

It is unnecessary, for present purposes, to decide whether Lumba has a ratio decidendi and, if so, what it is. The significant point is that nobody thought that every public-law error in the course of authorising detention would result in the detention constituting false imprisonment. The ground on which detention is held to be unlawful and the relationship between the flaw and the decision to detain are crucial when deciding how public-law unlawfulness affects private-law liability. The problem is that it is not yet clear which public-law errors suffice to produce private-law liability. In R. (Kambadzi) v Secretary of State for the Home Department (Bail for Immigration Deportees intervening),Footnote ⁹² for example, the claimant had been lawfully detained, but the Home Office failed to comply with its own policy that officials of a specified level of seniority should periodically review a detainee's detention to decide whether it continued to be justified. Had there been a review, Kambadzi would still have remained in detention. Lord Hope considered that, after Lumba, the issue was whether the review was “essential to the legality of the continued detention” in the sense that it “was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out …”.Footnote ⁹³

Lord Brown, by contrast, thought that the majority in Lumba had decided that a public-law flaw would have to be substantive, rather than procedural, to give rise to a private-law right to damages for false imprisonment. Extending liability for false imprisonment to purely procedural matters could produce absurd results. For example, if a policy requires monthly reviews but reviews actually take place every two months, the detainee “alternates yo-yo like between lawful detention and false imprisonment”.Footnote ⁹⁴

Kambadzi illustrates the uncertainty which now exists concerning the relationship between flawed administrative decisions concerning detention and tortious liability for false imprisonment. This is not surprising. We have seen that a range of public interests are in play which do not outweigh a person's claim to liberty but may outweigh a claim to damages for loss of liberty. When well-established principles in private law pull in a different direction from equally well-established principles in public law, judges should decide which set of principles is most appropriately applicable in the case. There is no justification for twisting either public or private law (or both) in an attempt to make them harmonious. They serve different ends and have different, or at least differently weighted, values and principles. Lumba shows that blurring the distinction produces confusion in both fields.

It is possible that the effect of public-law unlawfulness on private-law liability depends also on whether the unlawfulness relates to an individualised act or a general, legislative one. A person will not normally be allowed to rely on an individualised decision which turns out to have a public-law flaw as a justification in tort. In R. v Governor of Brockhill Prison, ex parte Evans (No. 2),Footnote ⁹⁵ for example, the claimant had been sentenced to imprisonment for a criminal offence. The prison governor calculated the claimant's statutory release date in accordance with a recent Divisional Court decision on the effect of the legislation. Subsequently, a differently constituted Divisional Court held that the earlier case had been wrongly decided. On the new basis, the claimant had been detained for 59 days too long. She sought damages for false imprisonment. The prison governor argued that the detention had been justified, either by his obedience to an order of the sentencing court, or because the Divisional Court's decision to depart from its earlier ruling had not changed the law retrospectively. The House of Lords unanimously rejected these arguments. False imprisonment was a tort of strict liability. The sentence of the court did not protect the governor when statute entitled the claimant to release on a specified date. Her detention after the statutory release date constituted false imprisonment. The governor could not rely on his reasonable but mistaken understanding of the law to justify detaining the claimant beyond her statutory release date.

Where a public official acts on subordinate legislation, however, and it turns out to be legally flawed, it may still provide a common-law defence or excuse capable of depriving a claimant of damages. An example is Percy v Hall.Footnote ⁹⁶ The HMS Forest Moor and Menwith Hill Station Bye-laws 1986, SI 1986/481, made it an offence to trespass on those sites. Peace protestors were regularly arrested for that offence. In criminal proceedings under the bye-laws, the Divisional Court held them to be void for uncertainty.Footnote ⁹⁷ Protestors then sued the police for wrongful arrest and false imprisonment. The trial judge, Sir Peter Webster, accepting on authority that the bye-laws were void, none the less held that the constables had a legal justification for arresting the plaintiffs because, relying on the apparently valid bye-laws, they had reasonable grounds to suspect that the protestors were committing an offence. The Court of Appeal upheld his decision. Simon Brown L.J. (with whom Peter Gibson L.J. agreed on this point) started by observing that, although the bye-laws expressly authorised arrest only if a person was actually committing an offence, earlier authority had established that such a provision allowed an arrest to be justified if there was reasonable suspicion that the arrestee had committed an offence.Footnote ⁹⁸ That case had concerned mistakes of fact, not law, but the issue had been whether a constable had a justification at common law in a tort action for false arrest. Simon Brown L.J. said:

Any right to compensation should lie against the Secretary of State who made the impugned bye-laws, not against the police constables who enforced them. This may be seen as exemplifying a common-law defence based on the special status and responsibilities of constables. Like the cases discussed earlier, it depends on a bifurcation of the notion of unlawfulness between public and private law.

4. Statutory defences and relationships between parties

Our sixth principle, requiring separate consideration of different legal relationships and careful analysis of the different ways in which people may be legally affected by the same events, is particularly important where one party enjoys special statutory protection. In R. (M) v Hackney London Borough Council,Footnote ¹⁰⁰ an approved medical health professional (AMHP), acting on the advice of two doctors as required by statute, applied in good faith to have the claimant compulsorily detained in hospital under section 3 of the Mental Health Act 1983. Section 11(1) provided that an AMHP might apply for someone to be admitted for treatment under the Act. On its face, the application appeared to be entirely regular, and the hospital's managers admitted the claimant. But the AMHP ought not to have made the application, as section 11(4) prohibited such an application if “the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made …”. The patient's nearest relative had informed the AMHP that he objected, and, although the AMHP thought that the relative had subsequently withdrawn the objection, he had not in fact done so. Burton J. granted habeas corpus on the ground that an application, unlawful under section 11(4) of the Act, had brought about the patient's detention. He was therefore entitled to be released.Footnote ¹⁰¹

The claimant sought damages for false imprisonment and violation of Article 5 of the ECHR from both the AMHP's employers and the hospital's managers, arguing that the application had been unlawful on two grounds: first, because of section 11(4) of the Act; secondly, because section 12(2) provided that at least one of the two medical recommendations required to support an application “shall, if practicable, be given by a registered medical practitioner who has” previous acquaintance with the patient. Neither practitioner had been acquainted with the patient. Collins J. dismissed the claim, holding that the hospital's managers had been entitled to rely on the application by the AMHP, because section 6(3) of the Act provided:

It followed, he thought, that the local authority could not be liable for bringing about the lawful detention.

On appeal, it was argued that the effect of section 6(3) was to protect the trust from the consequences of acting on an unlawful application, not to make the detention lawful. The Court of Appeal agreed. The AMHP had acted unlawfully in bringing about the claimant's detention. Section 6(3) protected the hospital trust against liability in damages, but not the local authority.Footnote ¹⁰² The hospital's managers were acting lawfully by virtue of section 6(3), but that did not make the AMHP's conduct lawful. It followed that the whole of the claimant's detention had been unlawful vis-à-vis the AMHP.Footnote ¹⁰³ In the common law of false imprisonment, “lawful” or “unlawful” was a description of the conduct which caused loss of liberty.Footnote ¹⁰⁴ The AMHP's conduct was unlawful and led directly to the patient's detention.Footnote ¹⁰⁵ For the same reason, the patient's right to liberty under Article 5.1 of the ECHR had been infringed, so he had a right to compensation under Article 5.5 of the ECHR.

This shows the importance of examining separately each strand of the complex web of legal relationships between the AMHP and the claimant, the AMHP and the hospital's managers, and the hospital's managers and the claimant. If the hospital's managers had statutory authority to detain the patient, one might ask, why was that not a good return to the patient's writ of habeas corpus? Can detention be both lawful and unlawful at the same time? When the legal relationships are correctly analysed, however, this apparent conundrum evaporates. The behaviour of different people towards the claimant was lawful or unlawful, but to speak of “the detention” as if it could be either lawful or unlawful regardless of which inter-personal, legal relationship is being examined is a conceptual error which obscures the various interests and legal relationships.Footnote ¹⁰⁶

1. When the error occurs

Does an error in the middle of a decision-making process relate back to prevent any part of the process from having legal effect? In N v Secretary of State for the Home Department,Footnote ¹⁰⁷ the Home Secretary made a control order under the Prevention of Terrorism Act 2005 imposing requirements on a person. The order was subject to review by the High Court. After the order was made, the House of Lords held that the Home Secretary had to provide the controlee with enough information about allegations against him to allow him to present his case effectively to the court. In N's case, the Home Secretary decided years after first making the order that she could not provide the information which the High Court considered to be needed. The Court of Appeal therefore did not uphold the order. The question was whether the order was valid until the Home Secretary decided not to provide the information required by the court, or whether her refusal rendered the order retrospectively void ab initio. The Court of Appeal decided that the order had been unlawful from the time when it was made. One reason for this was that N faced prosecution for breaching requirements of the (now quashed) order. Invalidating the order ab initio was a convenient way of avoiding the risk of a conviction which the Court of Appeal clearly regarded as unfair. Why would it have been unfair? Perhaps because the Home Secretary's refusal to reveal important information to the subject of the order prevented the reviewing court from assessing whether the order had ever been justified. Yet the Court of Appeal did not need to decide the effect of the Home Secretary's refusal on pending criminal proceedings. The criminal court could have decided (a) whether to allow N to rely on the unlawfulness collaterally in the criminal proceedings, and (b) if N could do so, what the effect on the criminal proceedings should be. It might have decided, for example, that prosecuting N in the circumstances was an abuse of process, or that (as in Director of Public Prosecutions v Head Footnote ¹⁰⁸) it would be wrong to make criminal liability depend on the answer to tricky questions of administrative law. But that should have been a matter for the criminal court, not the Court of Appeal (Civil Division) on a statutory review of the sustainability of the control order.

The position in N is analogous to cases in which a person who has been detained is entitled to periodic reviews of the continuing justification for detaining him, but a review is missed, or held too late, or does not comply with statutory requirements. In Roberts v Chief Constable of the Cheshire Constabulary,Footnote ¹⁰⁹ the claimant was arrested and taken to a police station, where the custody officer authorised his detention at 11.25 p.m. He was then transferred to another police station, where he arrived at 1.45 a.m. By virtue of section 34(1) and (2) of the Police and Criminal Evidence Act 1984 (PACE), his detention was lawful only if authorised at periodic reviews. The first review should have taken place six hours after the authorisation at the first police station, but the review officer wrongly waited until 7.45 a.m., six hours after his arrival at the second police station, when continued detention was authorised. The claimant was ultimately released without charge at 6.55 p.m. He sued for false imprisonment. The Chief Constable accepted that the detention had been unlawful between 5.25 a.m. and 7.45 a.m., but argued that breach of the review requirement did not give rise to a cause of action in tort, because the detention would have continued for the same period had the review been conducted at the appropriate time. He also argued that, as the claimant had been asleep throughout the relevant period and had not known that he was being unlawfully detained, the breach of PACE was merely technical and should not give rise to more than nominal damages.

The judge awarded the claimant £500 damages, and the Court of Appeal affirmed the decision. In the absence of a review at 5.25 a.m., Mr Roberts had been entitled to his liberty. As had previously been said in the context of arrest under PACE, “… where statutory provisions which provide rights to police constables to interfere with the liberty of the subject are concerned those provisions ought to be construed strictly against those purporting to exercise those rights”.Footnote ¹¹⁰ Furthermore, the supreme importance of liberty of the individual required that it should be actionable and offer the possibility of substantial damages without proof of special damage.Footnote ¹¹¹ The claimant was not restricted to nominal damages either because of the technical nature of the breach, or because the claimant had been asleep, or because the claimant would have continued to be detained anyway. It is possible that the Supreme Court's decisions in Lumba and Kambadzi, above,Footnote ¹¹² have in effect overruled the last of these conclusions; but those decisions are, with respect, unconvincing on this point (for reasons already outlined), and the Court of Appeal's conclusion on the other points is, it is submitted, clearly correct.

Nevertheless, it does not seem to have been argued that the failure to carry out a review at 5.25 a.m. made the detention retrospectively unlawful from the time of arrest or first authorisation of detention the previous night. Indeed, there is no reason why it should do so. Despite the view the Court of Appeal took in N, above, not every unlawfulness in the course of decision-making undermines the legality of the whole course of decision-making from its outset. There are particularly pressing public-interest reasons for not allowing unlawfulness to relate back in time where the effect is, or may be, to make a public body liable to compensate for a trespassory tort without proof of special damage.Footnote ¹¹³

Although an unlawful act in the course of executing a valid decision does not normally relate back so as to undermine the lawfulness of the decision itself, statute may create that effect. For example, section 15(1) of the Police and Evidence Act 1984 provides that entry on or search of premises is unlawful unless it complies with that section and section 16. Section 16(5) requires a constable executing a search warrant to provide a copy of it to the occupier. Where a constable provided a copy of only the front page of the warrant, section 15(1) made the entry and search unlawful ab initio, leading to an order for the return of seized materials.Footnote ¹¹⁴ But in the absence of such a statutory provision, the common law position is generally that unlawfulness at one time does not relate back to make earlier action unlawful.

Similarly, in Cullen v Chief Constable of the Royal Ulster Constabulary,Footnote ¹¹⁵ the claimant had been arrested on suspicion of involvement in an act of terrorism. Acting under section 15(8) of the Northern Ireland (Emergency Provisions) Act 1987, a police officer of the appropriate rank, with sufficient grounds, authorised delay in allowing the claimant to consult privately with a solicitor. In breach of requirements imposed by section 15, however, the officer had acted pre-emptively, rather than in response to a request from the claimant, and had not given reasons. It was held that the breaches did not give rise to an action for false imprisonment, because they did not render the detention unlawful.Footnote ¹¹⁶ This is consistent with the approach which Lord Dyson and Baroness Hale later took in Lumba: failing to wait for the detainee to make a request to consult a solicitor, and failing to give him the reasons for delaying access to a solicitor, did not relate to or affect the decision to detain, but only the circumstances of detention. Once again, we see that, where a detainee is seeking damages for a trespassory tort, public-law unlawfulness does not automatically entail private-law unlawfulness.Footnote ¹¹⁷

2. The stage of proceedings at which the issue arises for decision

A different remedial problem arises where a party bringing proceedings to enforce a right or duty seeks an interim injunction to enforce the right or duty pending trial. The usual principle for awarding interim orders is that the court considers the balance of convenience, so it will not grant an interim injunction unless the party who seeks it undertakes to indemnify the other party against loss resulting from it if it transpires that there was no breach of the right or duty.Footnote ¹¹⁸ The matter is more complicated, however, if the defendant will argue at the main hearing that there was no right or duty because (for example) the legislation on which the claimant relies is invalid. At the interim stage, the court must find a way of proceeding without prejudging the issue but also without making it unduly expensive or difficult for enforcement agencies to take action to enforce what appears to be a valid law. The court will consider the role and status of the agency seeking an interim injunction, and make a rebuttable presumption that a facially regular legislative instrument is valid until shown to be invalid. But what is to be done when a public body seeks to enforce by way of injunction a statutory instrument against a person who claims that the statutory instrument was made unlawfully? This was the situation in F. Hoffmann-La Roche & Co. AG v Secretary of State for Trade and Industry.Footnote ¹¹⁹ The Secretary of State had made a statutory instrument, duly approved by each House of Parliament, limiting the price which could be charged for the drugs Librium and Valium. The manufacturers, Hoffmann-La Roche, issued a writ claiming a declaration that the statutory instrument was invalid. The Secretary of State issued a writ seeking an injunction to restrain the company from charging more than the amount permitted under the statutory instrument. The Secretary of State also sought an interlocutory injunction restraining the company from charging more than the permitted amount pending determination of the validity of the statutory instrument. The company refused to submit to an interlocutory injunction unless the Secretary of State gave an undertaking in damages, which he refused to do.

The House of Lords decided that the Secretary of State was entitled to the interlocutory injunction because the Crown was enforcing a legal rule made in accordance with statute. In such circumstances the onus lay on the person challenging the rule to show why the rule should not be enforced up to the time when it was shown to be unlawful. The special role of the Crown in making and enforcing law was different from its role when enforcing its own proprietary or contractual rights. According to Lord Reid, the statutory instrument represented the law unless and until it was shown to be unlawful, and he and Lord Morris considered that the company had not shown sufficient reason for not enforcing it until that time, although the company might suffer significant loss as a result. Lord Diplock spoke in terms of a presumption that the statutory instrument was lawful, and decided that the company had failed to make out a convincing argument that it was ultra vires. He was, however, alone in this, and there is no clear ratio supporting the result. Nevertheless, it does not follow that the result is wrong. It simply shows that the problem which we are addressing cannot be resolved by applying labels such as void and valid (as Lord Diplock himself recognised).

3. Prospective and retrospective remedies

In Percy v Hall,Footnote ¹²⁰ Schiemann L.J. considered the effect of flawed decisions and rules from the perspective of public-law remedies. He regarded the “basic principle that an ultra vires enactment is void ab initio and of no effect” as a “beguilingly simple formulation” which “conceals more than it reveals”:

EU law was (and is) much more flexible in this regard, allowing a court to decide whether a flaw takes effect ex nunc (i.e. prospectively only) or ex tunc (depriving the rule of effect from the moment it was purportedly made).Footnote ¹²² Schiemann L.J. suggested that English law might draw on that tradition to develop its response to this kind of problem.Footnote ¹²³ This offers a way of giving legal effect to flawed decisions and rules (whatever kind of flaw is involved) building on the flexibility of remedies.

The public interest in detecting crime and protecting consumers and other people may also lead a court to delay the implementation of a judgment holding an action to be unlawful for breach of a statutory duty. In R. (Van der Pijl) v Crown Court at Kingston,Footnote ¹²⁴ Wilkie J., with whom Sir John Thomas P. agreed, held that a search warrant issued to the police under section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act 1984 failed to specify with sufficient particularity the items to be searched for. As a result, the warrant was invalid, and the subsequent search of premises and seizure of items were unlawful. Instead of ordering the police to return the items immediately, however, the court gave the police 14 days in which to apply to a court for an order authorising retention of the items under section 59 of the Criminal Justice and Police Act 2001, and allowed the police to retain the items in the meantime.Footnote ¹²⁵

The position is different, however, when a court holds that interfering with a person's right is unlawful because a legislative instrument purporting to authorise the interference, rather than an action implementing legislation, is invalid. In such a case, there is no scope for delaying the effect of the court's judgment.Footnote ¹²⁶ Whilst the Supreme Court justified this result on the basis that all errors of law make a rule or decision affected by one void ab initio, that wide ratio is impossible to reconcile with other cases discussed above. It is submitted that the decision can best be understood as illustrating a distinction between invalidity of the legislative instrument which alone could have justified an interference with a legal interest or right, which makes it impossible to justify continuance of the interference, and unlawfulness of an action taken pursuant to a valid piece of legislation, which would have authorised the interference but for an error affecting the lawfulness of the action.