Error of Law and the Effects of Flawed Administrative Decisions and Rules

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.

Keywords: administrative law, error, decision, appeal, rule, anisminic

JEL Classification: K1, K4, K40, K49