Dealing with ''the domino effect'

R (Mulvenna and Smith)
v Secretary of State
for Communities and Local Government [2015] EWHC 3494 (Admin) returned to a perennial issue: what are the consequences for a decision which has been made on the back of an unlawful decision? The judgment underlines
the importance of both the statutory framework in which the decisions are taken and judicial pragmatism.

The cases concerned planning appeals 'recovered' by the secretary of state for his own determination. Both related to gypsy and traveller sites in the green belt: planning inspectors had recommended that permission be granted, but the secretary of state had disagreed and dismissed the appeals. Save for recovery, the determinations would have been made by the inspectors under delegated authority.

The claims followed Moore and Coates v SSCLG [2015] EWHC 44 (Admin), in which Mr Justice Gilbart held that the policy of recovering all such appeals was unlawfully discriminatory and in breach of the public sector equality duty. The outcome of that determination was the 'de-recovery' of the appeals. Gilbart J commented that the decision called into question the legality of many other recovered appeals.

Mulvenna and Smith sought judicial review of the recovery decisions in their cases; however, these challenges were out of time. Mr Justice Cranston was not prepared to extend time: 'Anyone objecting to a decision of a public authority by way of judicial review must challenge it without delay; they cannot wait until others show that the way
is clear.'

Void decisions

The argument therefore focused on the consequences of the unlawful recovery on the subsequent determination of the appeals.

Under the statutory scheme, only Smith could raise this argument as only he had applied within the six-week time limit to review the decision. Cranston J set out the established position that unlawful decisions are void, not voidable. However, this creates a 'practical problem' in that 'the result might be administrative chaos or even political crisis if a myriad of subsequent acts are void'.

To avoid the 'domino effect', the judge noted: 'The courts will be guided by the language of the statutory scheme, its history and policy [and] the consequences which would ensue if they concluded that a power could only be exercised on the basis of a valid first act.'

In this case, the statutory framework was held to be relevant: even if the recovery decisions were a nullity, the 'primary statutory locus' for determining appeals was with the secretary of state and the statutory framework 'conferred jurisdiction on him to determine the appeals, whatever the lawfulness of his decisions, to recover them for his own determination'.

Cranston J considered it was therefore unnecessary for the court to go on to consider its discretion as to remedies.

Obvious tensions

From one perspective, the decision seems inadequate: the determination of the appeals by the secretary of state rather than by an inspector flowed directly from potentially void recovery decisions. The court did not ask the question of whether the appeals would have been recovered in any event, nor did
it engage with the substance of the unlawfulness alleged.

However, in light of the statutory framework and the timing of the decisions, the outcome makes logical and pragmatic sense.

The decisions had been made prior to the judgment in Moore and Coates. Had the secretary of state gone on to determine the appeals after that judgment, notwithstanding the doubts raised about the proper exercise of his jurisdiction, the court would likely have taken a tougher stance.

There are obvious tensions here, and these may be seen elsewhere. For example, where
it is alleged that an individual's detention is unlawful if founded upon an unlawful deportation order, the existence of a right of appeal against the deportation order has been held to make a decisive difference - i.e. if no appeal is brought, the secretary of state is entitled to rely upon the order (Secretary of State for the Home Department v Draga [2012] EWCA Civ 842). This contrasts with the general position that an unlawful order renders subsequent detention unlawful (see particularly R (Lumba) v SSHD [2011] UKSC 12).

The court did not discuss
how it would have exercised
its discretion had it found the recovered determinations to
be tainted by unlawfulness,
but that would have been an important alternative basis on which the claimants could have failed, which needs to be borne
in mind.

It is understood that permission to appeal is being sought by the unsuccessful claimants and the Equality and Human Rights Commission.

Ned Westaway is a barrister practising public law from Francis Taylor Building @FTB_law www.ftb.eu.com