Second actor theory is a legal theory that deals with the validity of administrative decisions that are made in reliance on an earlier invalid decision. The theory holds that the validity of the second decision will depend on the proper construction of the act empowering the “second actor,” and not on the validity of the earlier decision.
The theory was first developed by Professor Christopher Forsyth in the early 1990s. Forsyth argued that the traditional approach to this issue, which was to invalidate the second decision if the earlier decision was invalid, was too simplistic. He pointed out that this approach could lead to unfair results, as it could punish the second actor for the mistakes of the first actor.
The second actor theory provides a more nuanced approach to this issue. It recognizes that the validity of the second decision will depend on a number of factors, including the nature of the power exercised by the second actor, the purpose of the power, and the extent to which the second actor was aware of the invalidity of the earlier decision.
The second actor theory has been applied in a number of cases in the United Kingdom and Australia. It has been generally accepted by the courts, and it is now considered to be an established part of administrative law.
Here are some examples of how the second actor theory has been applied in the courts:
- In the case of Boddington v British Railways Board, the British Railways Board made byelaws that prohibited the smoking of cigarettes in railway stations. The byelaws were later found to be invalid, but a stipendiary magistrate convicted Boddington of smoking in a railway station. The magistrate was held to have acted validly, as he was empowered to convict under a different statute that did not refer to the byelaws.
- In the case of R v Governor of Brixton Prison, a prisoner was held in prison beyond his release date. The prison governor was held to have acted validly, as he was empowered to hold the prisoner until the date that he calculated to be the prisoner’s release date. The fact that the prisoner’s release date was calculated on the basis of an invalid decision did not affect the validity of the governor’s decision.
The second actor theory is a complex and nuanced theory, but it provides a principled and practical way of resolving the issue of the validity of administrative decisions that are made in reliance on an earlier invalid decision.