A FRESH LOOK AT PUNTON'S CASE
| Date | 01 May 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01593.x |
| Author | PETER CANE |
| Published date | 01 May 1980 |
A
FRESH
LOOK
AT
PUNTON'S
CASE
THE
Rule Committee of the Supreme Court has recently eliminated
many of the procedural differences between the prerogative orders
and the private law remedies of declaration and injunction when
these are used in public law matters. These differences were
irrational in that although they could be explained by reference
to the historical origins and development of the remedies they could
not be justified in terms of the uses to which the remedies were put
in
public law matters. But important substantive discrepancies
arguably still remain, the most notable being the divergent rules
of
locus
standi.a
The very restrictive rule applicable to applications
for
declarations and injunctions, though explicable in terms of their
private law
origins,
is unjustifiable when these remedies are being
used in a public law context, and especially
so
now that
a
separate
procedure is available for obtaining these remedies in public law
matters.
A
less far-reaching substantive anomaly in the law
of
public law
remedies is contained in the rule that whereas
a
declaration may
be awarded in lieu
of
certiorari to quash for jurisdictional error,
it may not be awarded
in
lieu of certiorari
to
quash for error
of
law
on the face
of
the record.s The argument
for
this rule begins by
pointing out that error of law
on
the face of the record renders a
decision
"
voidable
"
(in the sense that when it is quashed it will be
quashed
de
futuro
only and will not be held invalid
ub
initio
9
and
not void. The rest of the argument is well put by Zamir
':
S.I.
1977 No. 1955. noted [19781
P.L.
1 (Harlow); (1978) 94 L.Q.R. 179 (Wade)
and (1978) 41 M.L.R. 437 (Beatson and Matthew).
a
Learned commentators dlsagree as
to
whether rules of standing are
sub-
stantive (Harlow [19781
P.L.
1, 3)
or
procedural (Garner [!978] P.L. 224; Beatson
and Matthews (1978) 41 M.L.R. 437,
440).
Lord Diplock in
Hoffman-Lo Roche
v.
Secretary of State for Trade
[!957] A.C. 295, 366D, favours the latter view. But
see now
R.
v.
Inland Revenue Commfssioners. ex
p.
National Federation
of
Self-
Employed and Small Businesses Lid. Times
27th February 1980.
i.e.
for patent error of law. As to the use
of
declarations
to
review for latent
error
oP
law, see Zamir,
The Declaratory Judgment
(1962), pp. 160-166.
4
The word
''
voidable
"
is a notoriously difecult one in administrative law.
Apart from the sense given in the text there are at least three other ideas which
it could be used,,to convey: (a)
"
presumed valid until quashed by a court.''
The
word
"
quashed in this definition is controversial. In
F. Hoffmann-La Roche
&
Co.
A.C. v.
Secretary of State for Trade and Industry
[1975] A.C. 295 Lord
Reid said that
"
an order made under statutory authority is
as
much the law
of the land as an Act
of
Parliament unless and until it has been found to
be
ultra
vires"
(p. 341). Lord Wilberforce (dissenting), on the other hand, could
not accept the conclusion which this view entails, namely that an administrative
order is
to
be presumed valid in and
for
the purposes
of
the very proceedings
in
which its validity is being tested and
so
is the very point in issue (pp. 357-358).
On this latter view, the presumption
of
validity would last only until proceedings
to challenge the order were instituted by a party with
locus
standi
to challenge
the order in a court of law. These views will be discussed in more detail later.
(b)
"
challengeable only by a person with sumcient interest.
i.e.
locus
standi."
(c)
'I
will cease to be challengeable and will become valid if proceedings are not
266
6
For
footnote,
see
p. 267.
May
19801
A
FRESH
LOOK
AT
PUNTON’S
CASE
267
“.
.
.
In strict logic a voidable decision cannot be declared
invalid. Such a declaration will not state that the decision never
had any effect, but rather that
it
is
ineffective as from the date
of the declaration. It will not, then, proclaim the existence of
a legal situation but create a new one, just as certiorari to quash
does in such cases. In other words, it will be constitutive and not
merely declaratory.”
An
administrative decision affected by error of law on the face
of the record is not unlawful and therefore it is effective to alter the
rights of the parties affected by
it.
Once their rights have been
altered, the parties can be restored to their original legal positions
only by a remedy which itself alters rights and not by one which
only declares existing rights. On the other hand when an admini-
strative decision is affected by a defect which makes it void, then it is
unlawful
ab initio
and ineffective to alter legal rights. Therefore a
declaration of its invalidity will be sufficient to neutralise the effect
of the order. It will be suggested in this article that this argument is
not
so
self-evidently valid as
it
is treated by those who see it as
following logically from the very definitions of the words
“
void
”
and
“
voidable.”
THE
CASES
The two cases from which the rule is usually derived are
Healey
v.
Minister
of
Healthr
and
Punton
v.
Ministry
of
Pensions and
National
In the former case the applicant’s entitlement
to superannuation benefits depended on his being a
“
mental health
officer
”
within the meaning of the relevant statutory regulations.
The Minister had power to determine the issue and decided against
the applicant who then sought a declaration that he was a mental
health officer within the meaning of the regulations. The Court of
Appeal, in dismissing the claim, was moved by two considerations:
first, since the applicant was arguing that the Minister’s decision
was wrong in fact or in law or both, he was asking the court to
rehear the matter and thus to exercise an appellate function, whereas
its only power was to review the Minister’s decision in its super-
visory jurisdiction
’;
and, secondly, the declaration sought, even if
begun
within any statutory time limit.”
In
these three senses all administrative
decisions are voidable whether
or
not they are voidable
in
the sense given in the
text. See generally Wade,
“
Unlawful Administrative Action-Void or Voidable?
”
(1967) 83
L.Q.R.
499; (1968)
84
L.Q.R.
95.
e.g.
Wade,
Administrative
Law
(4th ed..
1977),
p.
508.
6
OR.
cit.
p.
157.
1
[1955]
1Q.B.
221.
8
(No.
1) 119631
1
W.L.R.
186
(striking out motion refused):
(No.
2) 119641
1 W.L.R.
226
(dkclaratlon refusedj.
For-
other cases see
Haisbury’s
iaws
4
England
(4th ed.),
Vol.
1,
p.
59,
note
22.
0
Zamir.
op.
cit.
71
argues that the applicant was invoking the original and
not the appellate jurisdiction of the court. On this view the court was being
asked simply
to
ignore the Minister’s decision. The language
of
Denning L.J. at
p.
228
supports this interpretation. The reference by Sellers L.J. in Punton
(No.
2)
at p.
237
to
Barraclough
v.
Brown
[1897]
A.C.
615
has similar over-
tones. However, an exercise
of
the
court’s
original jurisdiction
to
grant
a
declaration in the terms sought would have been
no
less incompatible with its
supervisory function than an exercise
of
its appellate jurisdiction.
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