David Feldman on the Effects of Invalid Decisions (the Void/Voidable Distinction): the Utility of Principles in Administrative Law

David Feldman has posted "Error of Law and the Effects of Flawed Administrative Decisions and Rules" on SSRN. Here is the abstract:

Over the last half-century, English administrative law and theory have increasingly paid lip-service to three propositions. (1) All errors in the course of making a decision or rule are to be regarded as errors of law. (2) All errors of law make the decisions to which they relate null and void. (3) If a ‘decision’ is a nullity, it can have no legal effect.

Yet it would be extremely inconvenient if every error which infringed a legal requirement in the making or implementation of a rule or decision were to deprive it of legal effect. The error might be minor, or do no harm to anyone. It might not make the decision (and hereafter, unless the context otherwise requires, ‘decision’ includes ‘rule’) inappropriate or deprive it of social and political legitimacy. The damage caused by refusing all legal effect to it might then be out of all proportion to the seriousness of the error. However, the three propositions make it difficult to provide a principled explanation or justification for those outcomes, and therefore to predict what effect a flawed decision will have. Section I argues that the propositions are based on a misleading interpretation of Anisminic Ltd v. Foreign Compensation Commission which has cloaked the creativity of administrative lawyers for forty years. Section II builds an alternative set of principles from the practice of courts. Section III suggests that these principles provide a basis for a realistic, predictable and principled understanding of administrative law.

I am not sure that propositions (2) and (3) are pervasive amongst people who think seriously about public law but they do surface with astonishing regularity and vigour. In any event, the continuing effect of administrative decisions adjudged invalid -- often known as the distinction between "void" and "voidable" decisions -- is a topic deserving of the lengthy treatment that Feldman has given it.

To quote from his conclusion:

Case-law does not support the view that all legal flaws make a decision void. Sometimes they remain valid unless quashed, reversed, or declared to be unlawful (and occasionally even then they continue to have some legal effects). Judges and legal professionals more generally do not behave as if nullity were always the consequence of an error of law. The leading theories which attempt to rescue the propositions by explaining away or rationalizing inconsistent decisions do not reliably offer guides to future cases. When we look afresh at what is really going on, building on the case-law rather than imposing a theoretical strait-jacket on it, it becomes clear that it is shaped by principles which enable us to understand and predict outcomes reasonably confidently in most cases. In other words, administrative law can justifiably be regarded as ‘law’, rather than an unprincipled lottery. We have identified seven principles.

Feldman's seven principles (access, legality, certainty, finality, courts do not act in vain, difference, morality and efficacy) can be grouped under the more capacious headings of "the rule of law" and "principles of good administration".

These principles -- or values, as I prefer -- have extraordinary explanatory power across the whole field of administrative law. They are especially useful at explaining past cases and justifying outcomes in present cases where there are few hard-and-fast rules: the scope of judicial review; discretion to refuse a remedy; whether an administrative decision can be challenged in a private law action or other non-judicial review forum; and, of course, the effects of decisions later adjudged to be invalid.

You can download the paper here.