Invalidity, Remedies, and Disclosure in Legal Contexts

ALBA Summer Conference 2020 INVALIDITY & REMEDIES AND DISCLOSURE & CANDOUR Jonathan Moffett QC 27 July 2020

2 1. INVALIDITY AND REMEDIES 11kbw.com

1. Invalidity & Remedies R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 Prime Minister s decision to advise the Queen to prorogue Parliament was unlawful what were the consequences of that finding? Mrs Miller asks us to make a declaration that the advice given to Her Majesty was unlawful and we can certainly do that. The question is whether we should do more than that, in order to make crystal clear what the legal consequences of that holding are . The essential question is: is Parliament prorogued or is it not? 11kbw.com 18/03/2025

1. Invalidity & Remedies [The Prime Minister s] advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and void . It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. It follows that Parliament has not been prorogued and that this court should make declarations to that effect . 11kbw.com 18/03/2025

1. Invalidity & Remedies If only it were always this straightforward Effect of the invalidity of a prior act on the lawfulness of a subsequent act can be one of the most difficult issues in public law Potential for legal theory to collide with practical reality: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Boddington v British Transport Police [1999] 2 AC 143 Professor Forsyth s second actor theory 11kbw.com 18/03/2025

1. Invalidity & Remedies This issue has recently been considered primarily in two contexts: unlawful detention in the immigration context (e.g. R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245) decisions taken pursuant to a decision-making scheme that is subsequently found to be unlawful 11kbw.com 18/03/2025

1. Invalidity & Remedies R (DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, [2020] 2 WLR 611 decision to deport given and deportation order made under 2004 Order claimant was detained pending deportation, under Immigration Act 1971 appeals against deportation order were unsuccessful claimant brought JR of deportation order and claimed damages for unlawful detention in separate proceedings, 2004 Order was held to be unlawful 11kbw.com 18/03/2025

1. Invalidity & Remedies Lord Kerr: statutory power under which deportation order had been made was invalid detention was for express purpose of facilitating deportation therefore there was no lawful power to detain Without the existence of a deportation order, the occasion for (much less the validity of) detention would simply not arise the detention was inevitably tainted 11kbw.com 18/03/2025

1. Invalidity & Remedies the appeal decisions did not constitute a break in the chain of causation This is not an instance of a series of successive steps, each having, potentially, an independent existence, capable of surviving a break in the chain Lord Carnwath: Secretary of State could not rely upon second actor theory where she was responsible for the acts at each stage See also R (Hemmati) v Secretary of State for the Home Department [2019] UKSC 56, [2019] 3 WLR 1156 11kbw.com 18/03/2025

1. Invalidity & Remedies R (TN (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 2838, [2019] 1 WLR 2647 FTT dismissed appeals against refusals of asylum appeals were determined under the Fast Track Procedure Rules 2005 claimants challenged the Rules and the decisions in their cases the 2005 Rules were held to be ultra vires the enabling Act (the NIAA 2002) because they were systemically unfair 11kbw.com 18/03/2025

1. Invalidity & Remedies Singh LJ: general position is that a statutory instrument that is ultra vires is incapable of having had any legal effect but in certain circumstances it might have factual and legal consequences (see Boddington) normal rule is that an order of a court or tribunal is valid unless and until it is set aside it is appropriate to take a relative , not an absolute , view of voidness 11kbw.com 18/03/2025

1. Invalidity & Remedies What this goes to illustrate is the need for great caution in a context like the present. A simplistic logic would simply be inappropriate. It is not as if a domino theory applies in a context such as this. If it did, it would mean that all sorts of subsequent decisions, including those taken by third parties acting in good faith on the basis of a valid appeal decision, would automatically have to be regarded as a nullity. The true position, in my view, is that the court must engage in a close analysis of the sequence of events in order to determine whether subsequent decisions are indeed to be set aside. 11kbw.com 18/03/2025

1. Invalidity & Remedies On the facts of the case the following factors were significant: conceptual distinction between a finding that the 2005 Rules were systemically unfair and the question of whether the procedure adopted in a particular case was unfair ultimate jurisdiction to determine the appeals was conferred on the FTT by the NIAA 2002, not the 2005 Rules the real question was whether the 2005 Rules influenced or infected the appeal decisions: that required an assessment of whether there had in fact been any procedural unfairness 11kbw.com 18/03/2025

1. Invalidity & Remedies Where does this leave us? the courts (generally) tread with caution outcomes can be acutely-context specific as yet, no universally applicable unifying theory more like Jenga than dominoes? 11kbw.com 18/03/2025

1. Invalidity & Remedies In Miller (No 2), the Supreme Court paid particular attention to the consequences of invalidity granted declarations making clear what the consequences were Important to think about appropriate remedies in this context 11kbw.com 18/03/2025

1. Invalidity & Remedies Quashing orders should be the first resort: Cocks v Thanet District Council [1983] 2 AC 286, 295 but quashing orders are blunt instruments and can cause more problems than they solve, e.g.: Grafton Group (UK) Plc v Secretary of State for Transport [2016] EWCA Civ 561, [2017] 1 WLR 373 see, e.g., the quashing of a consultation exercise in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 11kbw.com 18/03/2025

1. Invalidity & Remedies Declarations are flexible remedies that can be adapted to the circumstances, see e.g.: R (Elmes) v Essex County Council [2018] EWHC 2055 (Admin), [2019] 1 WLR 1686, para 174 per Walker J see, e.g., R (National Council for Civil Liberties) v Secretary of State for the Home Department [2018] EWHC 975 (Admin), [2019] QB 481 an appropriately worded declaration can have the same effect as a quashing order, but can be more nuanced and can specify consequences (see Lewis, Judicial Remedies in Public Law,para 7-012ff) 11kbw.com 18/03/2025

18 2. DISCLOSURE & CANDOUR 11kbw.com

2. Disclosure & Candour CPR 34.12 does not apply in claims for judicial review: R (Jet2.com Ltd) v Civil Aviation Authority [2018] EWHC 3364 (Admin) R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) 11kbw.com 18/03/2025

2. Disclosure & Candour The duty of candour might require disclosure of the fact that the decision was based on misleading legal advice: R (Belhaj) v DPP (No 2) [2018] EWHC 513 (Admin), [2018] 1 WLR 3602 A failure to explain the decision-making process may lead to adverse inferences being drawn: R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57, [2018] 1 WLR 4781 11kbw.com 18/03/2025

2. Disclosure & Candour Courts deprecating failures to comply with the duty of candour by defendants: R (KI) v London Borough of Brent [2018] EWHC 1068 (Admin) R (Citizens UK) v Secretary of State for the Home Department EWCA Civ 1812, [2018] 4 WLR 123 R (Ismail) v Secretary of State for the Home Department [2019] EWHC 3192 (Admin) And by a claimant: R (Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416 11kbw.com 18/03/2025