Admin Law Remedies Void Ab Initio And The Effect Of Invalidity Notes

VALIDITY/ VOID AB INITIO DOCTRINE • • • • Concerned with the issue of the effects or consequences of a finding that a decision is invalid. Normally, this will not be of wide impact and the order will have no major disruptive effects - especially condiersing that many of the administrative law doctrines and principles are qualified by exceptions which protect this from happening e.g. negligence and damages very hard to prove so as to prevent disruption from making decisions, the recovery of charges doctrine is restricted if it causes too much disruption, the three month time limit etc. On some occasions, the impact may be highly disruptive, invalidating countless earlier transactions. As the SC stated in 2018, C v Minister for Social Protection [2018] IESC 57 [29]'a wide-ranging ab ignition declaration of invalidity has the potential to cause disruption to social order' ➢ The issue is caused by the void ab initio principle:that an unlawful official measure is unlawful from the date when it is first committed, not from the date of judgment.It does not arise when the decision is announced, it arises when the contention or idea of it is announced or commencesThe reason it causes so many issues, is because likely many things have happened on the basis of the measure by the time the decision is announced. Thus, rather than only everything after the decision being illegal on foot of the measure, everything in the interim between the measure and the decision of illegality/ invalidity - has been illegal. AT WHAT POINT DOES THE ILLEGALITY BEGIN? 1. When the act is committed 2. When the judgement is pronounced 3. Illegality is postponed until a later date Everything after the decision until the new amended measure is put in place, is lawful - doesn't become unlawful until it is replaced. IRELAND Foras Aiseanna Saothair v The Minister for Social Welfare, Supreme Court, 23 May 1995.Void ab initio is the leading principleInvalid administrative acts are clearly void ab initio and destitute of all legal effect from the date of their inception UK Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147Void ab initio is the leading doctrineDecided in the context of an ouster clause R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41Re-affirmed that void ab initio is the leading principle The rival theoryVoidableWhen courts decide that an act or measure was invalid, the act was conceptually voidable until the date that the courts realised it was unlawful, and it definitively invalid at the date of the decision. CASE LAW R v Paddington Valuation Officer ex P Peachey [1966] 1 QB 380 Unlawful rating order was made in 1962 and set aside in 1965. Tens of thousands of people in the interim had paid money on the basis of the rating order. a pure principle that said they were void from the commencement would mean that all ratings had been illegally levied. Concerned about the catastrophic effects CA:VoidableThe rates that have been demanded and paid cannot be recovered back.For it is a general rule that where a voidable transaction is avoided (declared void), it does not invalidate intermediate transactions which were made on the basis that it was good.All conduct based on the potentially illegal act was completely legal The reason: ouster clausesLegislature have tried since the 1840s to exempt certain areas from Judicial Review. The way that the courts have gotten around this is to say that the ouster clauses apply only to orders and thus don't apply to nullities - they were never legal (on the very basis of the void ab initio doctrine) thus were never 'orders'.If the courts took the stance that measures were only illegal when the decision is announced - it means they are legal up until then - which means that they cannot be classified as always having been nullities and not orders - which would mean they could be classified as orders - which would activate the ouster clauses. THE DE FACTO OFFICER PRINCIPLE • • • • A particularly devastating form of secondary illegality can follow an invalid appointment In legal logicThe effect of the illegal appointment is that all of the acts done by the invalid appointee are also invalidIn other words, the consequential illegalities Historically, there had been a solution for dealing with this problem - the doctrine of the de facto officer. This meant thatWhere an official has been unlawfully appointed, official acts done by them are regarded as lawful despite the consequential illegalities UK Scadding v Lorant (1851) 3 HLC 148 A poor rate had been made by the vestrymen of a London parish The parish officers and poor assumed that the rate was valid, but one of the vestrymen had been illegally appointed.Applied de facto officer doctrinePreserving the settled expectations of those relying upon the official act from a purely technical attack.Prevention of 'uncertainty with respect to the obedience to public officers' Rationale: Fawrdy & Co v Murfitt [2002] EWCA Civ 643 An order appointing a judge to the technology and construction court division of the Eng. HC was improperly made. Argued that since the judge was not lawfully appointed, all orders made by him were consequentially illegal. CA:The acts of an officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at allThe logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so. ^ the court quoted from Wade's administrative law textbook

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