The Theory of the Second Actor Revisited

• Jurisdiction: South Africa
• Published date: 30 August 2019
• Date: 30 August 2019
• Author: Christopher Forsyth
• Pages: 209-229

The Theory of the Second Actor Revisited

CHRISTOPHER FORSYTH*

University of Cambridge

I INTRODUCTION

This paper tells the tale thus far of the development of an approach to the

void/voidable conundrum, shortly to be described, that lies near the heart

of administrative law. I have developed the ‘second actor’ approach to this

conundrum and have written about it before, most prominently in my

essay ‘The Metaphysic of Nullity’.

1

It is placed before this workshop for

two reasons: f‌irst, to test whether the theory of the second actor survives

the critical scrutiny of this distinguished gathering; and, secondly, to give an

account of some of the more recent developments relevant to it.

Sometimes the kind of conceptual reasoning we are about to indulge in is

perceived as a kind of sterile formalism, likely to tempt the administrative

lawyer into error. So, f‌inally, I hope also to demonstrate that conceptual

reasoning is crucial to the rule of law and the just decision of many

administrative law cases. But let us f‌irst turn to the central conundrum.

II THE CENTRAL CONUNDRUM

Ample authority

2

makes it clear that an unlawful administrative act is no

act at all in law. Lord Reid in Ridge v Baldwin

3

said it all:

Time and again in the cases I have cited it has been stated that a decision given

without regard to the principles of natural justice is void, and that was

expressly decided in Woodv Woad....

4

I see no reason to doubt these

authorities.

5

* Professor of Public Law and Private International Law, University of Cambridge;

Extraordinary Professor of Law, University of Stellenbosch. I am very grateful to Professors

Cora Hoexter and Jacques de Ville for their very helpful comments on parts of a draft.

1

Published in C Forsyth and I Hare (eds) The Golden Metwand and the Crooked Cord– Essays

on Public Law in Honour of Sir William Wade (1998) at 141.An account will also be found in

H W R Wade and C Forsyth Administrative Law 9 ed (2004) at 303. For comment by others,

see Elliott in Beatson, Matthews and Elliott,Administrative Law: Text and Materials 3 ed by Mark

Elliott (2005), chapter 3, and Pleming and Robb [1999] Judicial Review 248. Judicial

consideration of the theory is considered separately below.

2

This is crystal clear in the United Kingdom and, I believe, in most of the Common-

wealth. But there are heretical cases in all jurisdictions that toy with voidable administrative

acts. Durayappah v Fernando [1967] 2 AC 337 is the best known of these. The occasional

heretical judicial eschewal of nullity as a concept inappropriate for administrative law is

considered below.

3

[1964] AC 40.

4

(1874) LR 9 Ex 190.

5

In Anisminic Ltd. v The Foreign Compensation Commission and another [1969] 2 AC 147 the

judgment of the House of Lords actually depended upon the fact that the unlawful

administrative decision was a nullity.

209

2006 Acta Juridica 209

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More recent and broader authority is found in Director of Public

Prosecutions v Hutchinson

6

where Lord Lowry said ‘The basic principle is

that an ultra vires enactment, such as a byelaw,is void . . . and of no effect.’

Many other cases to like effect could be cited.

But it is equally clear that an unlawful decision will often appear

lawful. It is reasonable (and inevitable) that others will act on the

assumption that the unlawful decision is lawful. So in the result the

unlawful act is often effective until set aside by a court or other

competent authority. And, if that unlawful decision is not successfully

challenged, it will turn out to be as good as the most proper decision.

7

The position is summed up by the following well-worn dictum from

Lord Radcliffe’s speech in Smith v East Elloe Rural District Council:

8

An order, even if not made in good faith, is still an act capable of legal

consequences. It bears no brand of invalidity on its forehead. Unless the

necessary proceedings are taken at law to establish the cause of invalidity and

to get it quashed or otherwise upset, it will remain as effective for its ostensible

purpose as the most impeccable of orders.

This is a description of an act which is voidable, ie effective until set

aside by a court of competent jurisdiction. So here is the central

conundrum: unlawful administrative acts are theoretically void, yet

functionally voidable. How can the theory of void acts be reconciled

with the practice of voidable ones? This is important since much classical

administrative law, as will be seen in the next section, rests upon the

voidness of invalid acts. Theory must resolve this conundrum if it is to

provide a f‌irm basis for administrative law while practice with uncertain

and insecure foundations must be suspect.

III WHY IT IS SO IMPORTANT THAT INVALID

ADMINISTRATIVEACTS ARE VOID

One apparently easy resolution of the conundrum – deciding that

unlawful administrative acts were voidable and so the cases to the

contrary are simply wrong – must be immediately rejected. There are at

least three inter-related reasons drawn from fundamental and classical

principles of administrative law that require that unlawful acts are void. I

am hesitant to mention the f‌irst reason because it involves the ultra vires

6

[1990] 2 AC 783.

7

An often-expressed fear is that if unlawful administrative acts are void then the acts of all

who have acted in reliance upon that f‌irst act are also void. So everything that happens after the

f‌irst decision comes tumbling down. As we shall see the decisions of those who rely upon the

validity of a void act are not necessarily themselves void. The fear of the ‘domino effect’ is

generally chimerical. Elliott Beatson, Matthews and Elliott,Administrative Law: Text and Materials

3 ed by Mark Elliott (2005) chapter 3 coined the term in this context.

8

[1956] AC 736 at 769.

210 COMPARING ADMINISTRATIVE JUSTICE ACROSS THE COMMONWEALTH

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