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The legal effect of a defective order (R (Majera) v SSHD)

Published on: 17 November 2021
Published by: LexisPSL
  • The legal effect of a defective order (R (Majera) v SSHD)
  • What are the practical implications of this case?
  • What was the background?
  • Issues
  • What did the court decide?
  • Issue 1
  • Issue 2
  • Issue 3
  • Case details

Article summary

Public Law analysis: This appeal addresses a question of constitutional importance: namely, whether the government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The Supreme Court unanimously holds, for reasons given by Lord Reed, that the Secretary of State acted unlawfully by acting in a manner inconsistent with an order made by a First-tier Tribunal judge. It rejects the argument that the order was void of effect. The court explains that where an order is legally defective nonetheless the rule of law requires that it must be obeyed unless and until it has been set aside or varied (or, conceivably, overruled by legislation). That rule applies whether or not the order is valid or invalid, regular or irregular. The court also offers analysis of the legal effect and consequence of an unlawful administrative act or decision, as distinct from a court order. Written by Philip Rule, barrister at No 5 Chambers. or take a trial to read the full analysis.

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