The Rock and the Sand: Jurisdiction and Remedial Discretion

Abstract

This article emerges from the tension between two conflicting fundamental propositions in modern administrative law. On the one hand there “are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful: the citizen is entitled … to live under the rule of law, not the rule of discretion.” And on the other hand all the remedies available in the application for judicial review (except damages). Thus an applicant who establishes that a decision is legally flawed may be denied the fruits of that victory by the judge’s refusal to grant an appropriate remedy. But in HM Treasury v Ahmed & Ors.No 2 [2010] UKSC 5 the Supreme Court held once a court had concluded that an act was invalid and so void, it could not thereafter lend that invalid act legal effect de jure or de facto through the exercise of remedial discretion. This crucial conceptual breakthrough significantly restricts the role of remedial discretion has been significantly restricted. The consequences of this are explored including the public interest in avoiding chaos that might otherwise sometimes result if relief is not refused, whether breach of adventitious duties should lead to invalidity and, more radically, whether a class of voidable administrative acts should be recognised.