england-and-wales administrative-law judicial-review separation-of-powers state-power
If a power is given to a public body unlawfully, can the public body use that power?
<p>The premise to the question is:
A Secretary of State introduces a Regulation, granting a power to a public body. The Regulation is ultra vires - the Secretary of State did not have the power to introduce it under English law.</p>
<p>The question is: can the public body lawfully use the power? If the answer is no, what legislation or case law would support this assertion?</p>

<h2>The public body <em>will</em> use that power</h2>
<p>The flaw in the regulation can only be discovered once the power has been used and someone aggrieved by that takes the matter to court. The regulation has to be found unlawful by the court.</p>
<p>At present, the court has <a href="https://www.administrativelawmatters.com/blog/2021/05/24/4936/" rel="nofollow noreferrer">discretion</a> in determining what happens. They may decide it was void ab initio and that all acts under its colour never happened. However, if that will cause administrative chaos or affect the rights of third parties, they may decide that the egg can’t be unscrambled and that the regulation is instead voidable:</p>
<blockquote>
<p>…suggests that values can influence the classification of a bye-law as void or voidable (or, to eschew the language of conceptualism, whether an invalid bye-law can nonetheless have continuing effects): here, good administration (a concern to avoid chaos) and democracy (a concern to give effect to provisions passed by Parliament) are seen to play a role. Lord Browne-Wilkinson certainly argued that good administration could be relevant: “I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity”. As Lord Slynn of Hadley put it, “[t]he unscrambling may produce more serious difficulties than the invalidity”.</p>
</blockquote>
<p><a href="https://web.archive.org/web/20171015041017/http://www.bailii.org/uk/cases/UKHL/1998/13.html" rel="nofollow noreferrer">Boddington v. British Transport Police [1998] UKHL 13; [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639 (2nd April, 1998)</a></p>
