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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.

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?

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    That would depend on details of the specific regulation and what public body. It would also depend on how popular this regulation was with the party in control of the various branches of government. Sep 16, 2022 at 13:10
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    You will have to specify the jurisdiction in which this is happening. That said, a very common rule is that a regulation issued without legal authority is simply void. In that case, the public body's actions would be analyzed as if the regulation had never been issued. Though if their actions were actually criminal, if they believed in good faith that the regulation was valid, it might give then a defense of lacking intent. Sep 16, 2022 at 13:13
  • @NateEldredge thank you - have added the jurisdiction (England).
    – whispersan
    Sep 16, 2022 at 13:17
  • Thanks. We normally use the jurisdiction as a tag also, so I added england-and-wales. Sep 16, 2022 at 13:18

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The public body will use that power

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.

At present, the court has discretion 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:

…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”.

Boddington v. British Transport Police [1998] UKHL 13; [1999] 2 AC 143; [1998] 2 All ER 203; [1998] 2 WLR 639 (2nd April, 1998)

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