Should Defective Court Orders Be Followed?
The Supreme Court answered with a resounding yes, in R (on the application of Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46.
Facts Of The Case
The case involved an application for judicial review of the Secretary of State’s decisions to refuse to vary the restrictions she imposed on the appellant on 30 July 2015, shortly after he was granted bail by the First-tier Tribunal.
The appellant, who was subject to deportation, was granted bail by the First-tier Tribunal on the condition that he appeared before his offender manager (his supervising officer; he was on licence after he served the custodial part of his criminal sentence). The bail order further required the appellant to comply with the terms of his licence and prohibited him from entering paid employment. The appellant’s licence required him to undertake only such work as was approved by his supervising officer (including voluntary work) and imposed a curfew between 8pm and 7am.
Following the grant of bail and on the same day, an immigration officer gave the appellant a notice, notifying him that the Secretary of State imposed the following restrictions on him under paragraph 2(5) of Schedule 3 to the Immigration Act 1971: that he may not enter employment, paid or unpaid, and the imposition of a curfew between 8pm and 7am. The appellant was then released.
The appellant sought to contest the Secretary of State’s power to impose restrictions beyond those imposed by the judge, given that immigration bail was granted by the Tribunal. He also sought the withdrawal of the prohibition of voluntary work and for the curfew restriction to be altered to 11pm to 6am (the request having been made by his supervising officer, as those hours had been deemed appropriate for the appellant’s licence at the time). These requests were refused on 3 December 2015 and 4 January 2016, respectively, and the two refusals were the subject of judicial review proceedings.
Proceedings In The Upper Tribunal And Court Of Appeal
The appellant applied for judicial review against these decisions on the grounds that they were ultra vires, as the Secretary of State has no power to attach conditions to bail when those had not been ordered by the bail judge, and that they were an irrational and disproportionate restriction of his liberty.
In her grounds of defence, the Secretary of State contended that the bail order was defective, as it failed to impose a condition on the appellant to appear before an immigration officer at a specified time and place, a requirement under paragraph 22(1A) of Schedule 2 to the 1971 Act. A manager offender/supervising officer is not an immigration officer. On that basis, the Secretary of State argued that the purported grant of bail was void and therefore it was open to her to impose restrictions on the appellant. The lack of power to impose a curfew was conceded in view of case law that developed following the original decision.
The Upper Tribunal found that the grant of bail was defective, but that it was not void. The Secretary of State should have sought the variation of the grant by the Tribunal and, in the absence of that, it remained in force. As such, the Upper Tribunal found that the purported restrictions were of no effect, quashed the Secretary of State’s decisions and made a declaration that the appellant remained on bail granted by the First-tier Tribunal on 30 July 2015.
The Secretary of State appealed against that decision to the Court of Appeal insofar as it related to the 3 December 2015 decision. The Court of Appeal concluded that the bail order was a nullity on the basis that it did not comply with the statutory provision of the 1971 Act. In concluding this, the Court of Appeal followed precedent (Anisminic v Foreign Compensation Commission [1969] 2 AC 147, F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365 and Boddington v British Transport Police [1999] 2 AC 143) which held that unlawful administrative acts or orders had no effect in law and that collateral challenges against them can be brought by defendants in legal proceedings. It should be noted that this was only considered in the context of the Secretary of State’s defence to the appellant’s judicial review application. The lawfulness or validity of the bail order was not subject to a judicial review application by the Secretary of State.
The Secretary of State’s appeal was allowed on that basis and the appellant appealed to the Supreme Court.
The Supreme Court’s Decision – The Duty To Obey Court Orders
The Supreme Court unanimously found that the Court of Appeal had erred in allowing the appeal and reversing the Upper Tribunal’s decision on that basis. The Supreme Court distinguished the cases of Hoffmann-La Roche and Boddington as those involved administrative decisions and subordinate legislation, whereas the appeal was concerned with the order of a court or tribunal.
The Supreme Court confirmed the well-established principle of UK constitutional law that a court order must be obeyed unless and until it has been set aside or varied by the court (or overruled by legislation), notwithstanding any legal defects in the order. This principle was stated in Chuck v Cremer (1846) 1 Coop temp Cott 338; 47 ER 884. The Court referred to subsequent authorities which followed this rule and which also distinguished Boddington insofar as court orders were concerned. It was found that the principle applied equally to orders made by courts of limited and unlimited jurisdiction, when acting within their competence.
In view of this, the Supreme Court held that the Secretary of State was obliged to comply with the bail order, given that it had neither been varied nor set aside (prior to the making of the decision under challenge, or at all for that matter). As such, the argument that the order was invalid was not a relevant defence to the judicial review application against the Secretary of State’s decision. The Supreme Court allowed the appellant’s appeal, given that there was no other basis on which the Court of Appeal reversed the Upper Tribunal’s decision and the Secretary of State had not invited the Court to dismiss the appeal on other grounds.
The Supreme Court further criticised the Court of Appeal’s procedure in allowing a collateral challenge to the validity of the bail order, brought in the form of a defence by the Secretary of State to the appellant’s judicial review application. Even if the defence had been relevant, it was found that the Secretary of State had an opportunity to apply for permission to apply for judicial review against the bail order. This was not the case in Boddington, as the defendant in that case had no reason to challenge the validity of the relevant by-law until he was prosecuted for contravening it. In allowing a collateral challenge against the bail order, the Court of Appeal obviated the requirement to obtain permission to apply for judicial review by the Upper Tribunal, which had jurisdiction to grant or refuse permission, as well as to grant or refuse relief in exercise of its discretion, upon considering the relevant implications.
Legal Effect Of Unlawful Acts Or Decisions – Commentary
Having distinguished the principles governing the legal effect of court orders on one hand, and administrative decisions or secondary legislation on the other, the Supreme Court considered the Court of Appeal’s reasoning, which was premised on the characterisation of all unlawful administrative acts and decisions as null and void. Given that the appeal involved a court order, the Supreme Court’s remarks in this matter were obiter.
The Supreme Court acknowledged that the Court of Appeal referred to the situation where there had been a judicial pronouncement of the unlawfulness of the decision. It is established that, if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. Even if the reviewing court finds the decision to be unlawful, it may decline to grant relief (a quashing order or declaration) in the exercise of its discretion, for lack of standing, or due to an ouster clause, by way of examples. An unlawful act or decision cannot be considered void in the absence of a court order to that effect.
The Supreme Court went further to consider that even where a court has decided that an act or decision is legally defective, that does not necessarily imply that it must be held to have had no legal effect. The Supreme Court cited authorities where acts or decisions were held to have had some legal effect, which it found not to be inconsistent with the authorities cited by the Court of Appeal.
The Supreme Court found that the passages from Hoffmann-La Roche and Boddington, relied on by the Court of Appeal to conclude that administrative acts that have been judicially pronounced unlawful are recognised as never having had any legal effect, were obiter and, in the latter case, not agreed by the majority of the appellate committee.
In essence, the Supreme Court seems to eschew the characterisation of unlawful administrative actions or decisions as “null” or “void”, for not being apt to describe the position, and to favour a “relative” view of nullity. The Court considered that borrowing terms from the law of contracts by way of analogy was useful, but that those could not override values underpinning the court’s supervisory jurisdiction in the field of administrative law, such as the public interest in legal certainty, orderly administration, and respect for the rule of law.
The Supreme Court’s comments on this matter should be considered in light of the findings of the Independent Review of Administrative Law in July 2020, as set out in this earlier article. In its report, the panel concluded that Parliament ought to legislate in order to amend the position established by the by the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, namely that an exercise of public power pronounced unlawful by the court was always null and void. Lord Carnwath also expressed his disagreement with that position in paragraphs 128-130 of R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22. It should be noted however that the possibility of issuing a suspended quashing order in a judicial review application was ruled out by the Supreme Court in Ahmed v HM Treasury (No 2) [2010] 2 AC 534.
It appears that the courts are moving away from the principle of absolute nullity. How this will be applied in specific circumstances, remains to be seen, as this was not an issue in Majera. Nonetheless, it is likely that arguments on the extent of validity of an administrative act, prior to it being declared unlawful or quashed by the reviewing court, will need to be made. This is especially in the event that the Judicial Review and Courts Bill, containing a provision for suspended or non-retrospective quashing orders, becomes law.
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