JUDICIAL CONTROL OF DELEGATED LEGISLATION : THE TEST OF REASONABLENESS

I. THE BACKGROUND UNTILthe Victorian period much subordinate legislation was carried out by bodies acting under powers conferred by charter or existing by immemorial user. The doctrine of uttra vires could hardly apply to such legislation,' but the courts controlled it by other methods, and were prepared to invalidate any ordinance if it was unreasonable, uncertain or repugnant to the general law of the land.* Bodies with law-making powers included : borough corporations, which had, at common law, the power to make ordinances and by-laws3 for the better government of the including by-laws to bind strangers visiting the place '; other corporate bodies, such as universities,6 professional bodies,' charitable institutions and trading companie~,~ which had power to make by-laws for their own members ; fraternities, such as guilds, which had legislative powers similar to those of trading companies l o ; courts baron and courts leet, which had power to legislate in respect of matters within their respective manors l l ; and the Stannary Parliaments of

' Except

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9

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in cases where the by-law contravened the terms of an extant charter: v. Breton (1768) 4 Burr. '2204 and 22GO. I t may be noted that the same. tests applied to local customs, some of which were in fact attributed to ancient by-laws, the text of which had been lost: see, e.g. Cocksedge v. Panshawe (1779) 1 D0ug.K.B. 119, and see the ,;writer's article on local customs, " The 1189 Rule: Fact, Fiction or Fraud? (1972) 1 Anglo-Am:,L.R. 269; The term by-law originally meant " town-law." being derived from the Danish place-name ending, as in Tcirkby. Various spellings are in use, the statutory versio? being byelaw "; the editors of the L a w Reports usually prefer " by-law and I have followed the latter throughout. City of London v. Vunacre (1699) 12 Mod. 269, per Holt C.J.; Citq of Lotidoti V. Wood (1701) 12 Mod. 669, per Ward C.B. Caddon V . Eastwick (1704) 1 Salk. 192. Numerous examples of by-laws passed by borough and city corporations are to be found in Sidney and Beatrice Webb's English Local Government; in many cases they were restricted to the internal affairs of the corporation, such a s the election of aldermen, but by-laws and ordinances for the good government of the area were by no means unknown. When the complete text was published in 1769 967 by-laws were extant and in force in the City of London. Dodwell v. Untuersity of Oxford (1680) 2 Vent. 33. R . v. President and College of Physicians (1797) 7 T.R. 282. Sutton's Hosnital Case (16121 10 Co.Ren. 1. Cliild v. Huhson's B a i Company (17i3) 2 P.Wms. 207. per Macclesfield L.C. Butchers' Company v. Morey (1790) 1 H.BI. 370. Mayor of Ezeter v. Smith (1668) Cart. 177 : lengthy extracts from the by-laws of Great Tew, Oxfordshire, passed in the seventeenth and eighteenth centuries, may be found in Sidney and Beatrice Webb, OP. cit. a t PP. 80-87. and many others are extant and m a y be found in books on local-history. . Their soie surviving function appears to be in connect,ion with the management of corne.g. R . V. Cutbtcsh and R .
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Cornwall and Devon, consisting of jurats and burgesses of their respective stannaries, which had the power t o pass orders and laws t o bind the tin-miners of those counties as if they had been enacted by the Parliament of the Realm.12 A by-law might be challenged and invalidated on the following grounds : (i) Uncertainty. For example, in Neversley v. Webster (1755), a by-law of the Company of Cutlers in Hallamshire provided that the sum of 15s. was t o be paid for indentures of apprenticeships, the master and wardens and certain other officers to decide how much was to go t o the clerk, how much to the rest of the company; Ryder C.J. held that the by-law was bad, for the method of apportioning the fee was not sufficiently settled. (ii) Unreasonableness. For example, in The Scriveners' Compan9 v. Brooking l4 (1842) the Court of Queen's Bench rejected a bylaw of the company purporting to require a contribution from the company's officers towards the cost of an annual dinner at which they might not be present.lS (iii) Repugnancy to the law. There is little authority prior t o the Victorian period, but the courts would almost certainly have refused to enforce a by-law which contravened an Act of Parliament or the general law of the land.'"

11. KRUSE . JOHNSON v During the nineteenth century t h e , legislative functions of the borough corporations were standardised and regulated by the Municipal Corporations Acts of 1835 and 1882; the power to make by-laws was conferred on various public bodies by a series of Public Health Acts and ultimately by the Local Government Act 1888 ; some authorities received special powers under local Acts. I n addition, Parliament conferred similar powers on the railway companies and other commercial undertakings. The numerous cases of the second half of the century demonstrate the quandary
mons (see the Report of the Royal Commission on Common Lands, 1958); and see Coote v . Ford and Platt v . Jessett (1900) 17 T . L . R .58 and 105. Viner, Abr., sub-title Stannaraes ; Strode's Act 1512, preamble; W. G. Iloskins, Deuon. Similar by-laws, which were ultimately enacted by statute in 1851-52, were passed by the lead-mining baimotes of Derbyshire; and the text of the Grsssington by-laws of 1642 and 1737 mag be found in A. Haistrick and 13. Jennings, A History of Lead Mining in t h e Pennines. 1 Iieny. 243. 3 Q.B. 9.5. Most of the early c a ~ e s unreasonableness arose out of attempts to iestrain on tiade, the general rule being that any by-law which tended to restrain persons from earning their living was bad (e.g. Company of Horners v. Bnrlow (IS,%) 3 Mod. 159, wheie the company attempted to prohibit the purchase o horn f within twenty-four miles of London except by their agents); but by-laws designed to maintain the standards of a trade or profession conld he upheld (e.g. Butchers' Company v . Morey ( s u p r a ) ; R . v . President and College of Physicians ( s u p r a ) ). 1)nvenant v . Hurdts (1598) Moore K . B . 576; Lentlzley v. Webster (1755) Say. 251.

i2

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in which the courts found themselves: whether they were to uphold any by-law which fell within the powers conferred by Parliament, or whether they could apply the controls which had been traditionally exercised over non-statutory legislation. The cases in this period fall into two distinct groups, relating to railways and local government respectively. The railway cases were comparatively straightforward, and all turned on the question as t o whether a by-law could create the offence of travelling without a ticket unless a fraudulent intention could be proved. The leading case was Dearden v. Townsend (16&5), where Cockburn C.J., after pointing out that the Railways Clauses Consolidation Act 1845 made a fraudulent intention the gist of the offence, went on to say that if a company made a by-law constituting the same offence without the ingredient of intent to defraud, that would amount to altering an enactment and would be repugnant t o the statute. I n Bentham v. Zioyle l 8 (1878)a railway by-law was in fact held invalid on this ground, and the same result was reached in London and Brighton R y . v. W a t s o n l9 (1878): in the latter case the by-law provided that any person found travelling without a ticket should be required to pay the full fare from the station whence the train started to his destination; Coleridge C.J. held the by-law void on the ground of repugnancy following Dearden v. Townsend, and went on to add that i t was unreasonable : " It is manifestly unequal in its operation. A man who has travelled five miles or fifty may be mulcted in the same sum, without any reference either to the benefit he has derived from the company or the injury he has inflicted upon it. It is unjust; because it makes no distinction between a man who has really perpetrated, or attempted to perpetrate, a fraud upon the company, and one who has by mere inadvertence lost his ticket after having paid his full fare; or from whom i t has been stolen; or who has carelessly but innocently neglected to provide himself with one." 2 o A wider range of problems arose for consideration in respect of local government legislation.a' The main difficulties seem to have started with Johnson V. Croydon Corporation 22 (1886) : in this case the corporation had made a by-law under the Municipal Corporations Act 1882 under which " no person shall sound or play upon any musical instrument in any of the streets in the borough on Sunday." This was held unreasonable, since it would include any music, however harmless or free from offence i t might be.

...

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L.R. 1 Q.B. 10. l 8 3 Q.B.D. 289. 3 C.P.D. 429 and (on appeal) 4 C.P.D. 118. For later cases on this topic, see Saunders v. S.E. Ry. (1880) 5 Q.B.D. 456; Huffam v. North Stoffordshire R u . [1894] 2 Q.B. 821; Hanks v. Bridgmnn [1896] 1 Q.B. 253; and Lowe v. Volp 18961 1 Q.B. 256. Early cases included R. v. Rose (18555 24 L.J.M.C. 130; Bennett v. Blackpool Board of Health (1859) 28 L.J.M.C. 203; Young v. Edwards (1864) 53 L.J.M.C. 227; Hall v. Niaon (1675) L.R. 10 Q.B. 152; Shillit0 v. Thompson (1675) 1 22 16 Q.B.D. 708. Q.R.D. 12; m d R. v. Powell (1884) 51 T.L.R. 92.

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Two years later the question was reviewed by the Privy Council in Slattery v. Naylor 23 : this case arose out of a by-law passed by an Australian authority under local legislation to the effect that : No corpse shall be interred in any existing cemetery now open for burials within the distance of one hundred yards from any public building, place of worship, schoolroom, dwellinghouse, public pathway, street, road or place whatsoever within the borough.

Mr. Slattery had interred his wife in a private burial place in a Roman Catholic cemetery in contravention of the by-law and was convicted by a magistrate: the conviction was upheld by the Supreme Court of New South Wales and the Privy Council. Lord Hobhouse stated the law in the following terms 2 : The jurisdiction of testing by-laws by their reasonableness was originally applied in such cases as those of manorial bodies, towns or corporations having inherent powers or general powers conferred by charter of making such laws. As new corporations or local administrative bodies have arisen, the same jurisdiction has been exercised over them. But in determining whether or not a by-law is reasonable, i t is material to consider the relation of its framers to the locality affected by it, and the authority by which it is sanctioned.
His Lordship then pointed out that this case concerned the administration of a colony covering a large area with a rapidly expanding population, and a representative council upon whom the colonial parliament had conferred extensive legislative powers subject to various safeguards, including confirmation by the Governor, publication in the Gazette and laying copies before both houses of parliament: if i t were possible to conceive that such a council could frame and the Governor could confirm a fantastic and capricious by-law such as reasonable men could not make in good faith, i t would be open to the courts to set i t aside; but i t was not to be regarded as unreasonable merely because the contents did not commend themselves to the judges. The by-law was upheld. During the following decade a spate of cases 2 5 came before the courts. It is apparent that by the later 1890s local authorities were faced by serious doubts as to whether their by-laws would
23
25 24 I b i d . a t p. 452. 13 App.Cas. 446. Martin. v . Clarke (1893) 62 L.J.M.,Y. 178 (a weights and measures by-law referring to a weighing instrument was upheld); Strickland V . Hayes [1896] 1 Q.B. 290 ( a by-law forbidding obscene songs or ballads, or the use of profane or obscene language was rejected a s unreasonable); A l t y v. Itarrcll [l8?1 1 Q.B. 636 (a weights and measures by-law requiring coal-merchants to reweigh coal on request was held unreasonable); Burnett v. Berry [l896] 1 Q.B. 641 (a by-law prohibiting bookmaking or betting in any public street or place was upheld). Other cases in 1896 included a Canadian appeal, Toronto Corporation v. Virgo [1896] A.C. 88; Cook v. Hainsworth [1896] 2 Q.B. 85; T e a k v. Harris, 13 T.L.R. 1 5 ; Mantle v. Jordan [1897] 1 Q.B. 248. And in the following year: Collman v. Mills [1897] 1 Q.B. 396; Simmons V. Malling R.D.C. [1897] 2 Q.B. 433 and Gray v . Sylvester (1897) 14 T.1J.R. 10.

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be enforced, and magistrates were equally doubtful as to whether anyone who broke a by-law could properly be convicted. The whole problem came to a head with Kruse v. Johnson.26 Kent County Council had made a by-law, under the Local Government Act 1888, in the following terms: " No person shall sound or play upon any instrument or sing in any public place or highway within fifty yards of any dwellinghouse after being required by any constable, or by an inmate of such house personally, or by his servant or agent, to desist." On October 17, 1897, Mr. Kruse was conducting an open-air service at Leeds (in Kent) and persisted in singing a hymn within fifty yards of a dwelling-house after a constable had requested him to desist; he was prosecuted before the Bearsted Justices and convicted, and appealed to the Divisional Court on the ground that the by-law was invalid."' The court consisted of Lord Russell of Killowen C.J. and Mathew J., who disagreed with each other: accordingly a special court was constituted consisting of Lord Russell of Killowen C.J., Jeune P., Chitty L.J., and Wright, Darling, Channel1 and Mathew

JJ.
The leading judgment was delivered by the Lord Chief Justice; Jeune P. delivered a separate concurring judgment and Mathew J. dissented; the rest of the court concurred with the Lord Chief Justice. His Lordship first considered what a by-law was 28 : " A by-law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the by-law, they wouId be free to do or not to do as they pleased. Further, it involves this consequence-that, if validly made, it has the force of law within the sphere of its legitimate operation." He then went on to consider the contemporary procedurezg for passing a by-law in local government matters. Local authorities could only make by-laws if two-thirds of the council were present a t the meeting; the confirmation of the Local Government Board was
26
27

a 91. &1898J byQ.B.appeal, or an aro8e out of toprosecutionsthe Divisional Court; there ractically all these cases before the magistrate8 followed an application quash, to
was a t that time no further appeal to the House of Lords, and the practice was to constitute a special court of five or more iudges to consider difficult p i n t s end to review and if necessary overrule previous decisions: and see Fortescue v. Vestry of St. Matthew, Betlbnal Green [1891] 2 Q.B. 170. 118981 2 Q.B. a t p. 96; neither Jeune P. nor Matthew J. attempted to define the term. Governed by a combination of the Public Health Act 1875, as. 182-187, the Municipel Corporations Act 1882, 8 . 23, and the Local Government Act 1888. 8 . 16.

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required; a by-law could be disallowed by the Queen in Council within forty days; and there were various other safeguards. By-laws of this type could properly be distinguished from by-laws passed by railway companies which carried on business for their own profits where it was right that the courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable use; on the other hand, where by-laws were passed by representative bodies and subject t o the checks and safeguards described, they ought to be supported if possible and benevolently i n t e r ~ r e t e d . ~Jeune P. applied the same considera~ tions 3 1 : Three considerations appear t o me to apply with especial force to such an authority, dealing with such subject matter. First the case is wholly different from that of manorial authorities, or of trading corporations such as dock or railway companies, who often have a pecuniary interest in their by-laws, or even of such a municipal corporation as might be supposed t o have trade interests involved. Secondly, such an authority as a county council must be credited with adequate knowledge of the locality, its wants and wishes. Thirdly, the opportunity afforded by legislation for a request for reconsideration, and an appeal to higher authorities, by members of the public shows that any by-law which comes into force has received a t least the acquiescence of those whom it affects. Notwithstanding, both Lord Russell C.J. and Jeune P. conceded that situations might arise in which the courts would be entitled to hold by-laws invalid on the ground of unreasonableness if, for instance, they were found to be partial and unequal in their operation as between different classes, or manifestly unjust, or if they disclosed bad faith, or involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men: in such circumstances the court might well say, Parliament never intended to give authority to make such rules; they are unreasonable and u l t r a vires. But a by-law was not unreasonable merely because particular judges might think it went further than was prudent or necessary or convenient, or because it was not accompanied by a qualification or exception which some judges might think ought not to be there. Having stated these principles, Lord Russell C.J. went on to apply them to the by-law in question and held that it was valid. Jeune I?., relying on Slntterg v. Naylor, came to the same conclusion. Mathew J. was in a minority of one to six, but his closely argued dissenting judgment merits consideration. He cast doubt upon the distinction between by-laws passed by popularly elected bodies and those passed by other corporate bodies whether created
30
31

[18988) Q.R.a t p. 39. 2 I b i d . at p. 104.

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by statute or by charter; he pointed out that a statute passed in 1498,32 itself replacing earlier legislation, had required a variety of by-laws to gain approval from the Chancellor, Treasurer and Chief Justice, or from the assize judges, but that i t had been decided33 in early times that the approval of a by-law by these authorities did not give it validity if not otherwise legal, and i t was for the judges to determine if i t was valid. I the distinction f between popularly elected bodies and other bodies was properly drawn, then the judges would be placed in an anomalous position, and they would be bound to uphold in one case what in another they would be right in condemning. H e went on to analyse Slattery v. Naylor and suggested that this case was authority only in respect of colonial law. According to Mathew J.s stricter tests the by-law in question was unreasonable and should have been rejected.s4

1 1 THETWENTIETH 1. CENTURY The decision in Kruse v. Johnson was in general accepted in subsequent cases, although the problem was not entirely resolved. Non-statutory legislation has been of such diminished importance that it has given rise to virtually no litigation,35 but a few cases have arisen out of the by-laws of commercial undertakings. Thus in Gentel v. Rapps36 (1901) a Bristol tramway by-law prohibiting swearing or the use of offensive or obscene language on a tram, made under the Tramways Act 1870, was challenged on the ground that it was repugnant to the law, but was upheld in the Divisional Court; Channel1 J. said:3
A by-law is not repugnant to the general law merely because i t creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law
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19 Hen. 7, c. 7. Ipscoich Taylors Case (1614) 11 Co.Rep. 53; Stationers Company V . Salisbury (1693) Comb. 221. I n the closing paragraph of his judgment he expressed concern that the decision of the court would not be binding, and that there was no mode of finally settling differences of judicial opinion in cases of this nature : he recommended a change of procedure to allow an appeal. I t WQS not until 1960, by the Administration of Justice Act, that his recommendation was carried out. The point was considered briefly in Re the French Protestniit Hospital [lOSl] Ch. 567, where Danckwerts J. held that the by-laws of a charitable trust, incorporated by charter in 1718, were repugnant to the law and invalid. The power of a corporlttion to make by-laws is very similar to the power of a n unincorporated association to make rules for its members: this may be controlled by the courts in a similar manner, particularly, for example, if such rules affect the rights of non-members (Naglc v. FeildeTt [lOGGl 2 Q.D. 633). or jeopardise a mans right to work (Edwards V. S.O.G.A.T. [1971] Ch. 354), or contravene the rules of natural justice (Enderby T o w n P . C . v. The Poolball Association 19711 Ch. 591. [1902] 1 K L . 160; and see L . P . T . B . v. Sumwer (1935) 52 T.L.R. 13 and L.M.S. Ry. v. Greaver [lo371 1 K.B. 367. r19021 1 K.B. a t p. 166 : this passage was adopted by Lord Guest in Mimattis h o p e r t i e s Ltd. v. Chertsey U.D.C. [1965] A.C. 735, 760.

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says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land." In local government, the flood of cases subsided, but several by-laws were contested in the early years of the century, sometimes s u ~ c e s s f u l l y . ~ ~ question was then again considered a t some The length in the following cases : Conservators of illitcham Common v. Cox 39 (1911). The Conservators had power under the Metropolitan Commons Acts 1866 and 1869, to set aside part of the common for organised games and to regulate the games by means of by-laws; one of the by-laws laid down that no person should play golf on either of the two golf courses, which had been formed out of the common, unless he was a member of a golf club which had been formed with the consent of the Conservators, or an inhabitant of Mitcham holding a permit from the Conservators. It was held by the Divisional Court that the by-law was unequal and void :40 " The inequality of these regulations is obvious. They give special advantages to the inhabitants of Mitcham over the rest of the public, they give further advantages to the members of 9, Prince's Golf Club over the inhabitants of Mitcham.

...

The decision of the magistrates, who had refused to convict Mr. Cox of an offence under the by-law, was upheld. Repton School Governors v. Repton R.L).C.4L'(1918). I n this case the school wished to make certain additions to their buildings, and started work upon them; the Council maintained that the additions would infringe a by-law made under the Public Health Acts Amendment Act 1007, to the effect that every person who erected a new domestic building should provide in the rear thereof an open space of a t least 150 square feet; the Council intimated that they proposed to pull down the building, and the School applied for an injunction. Bailhache J. held that the by-law was unreasonable and bad and granted the injunction. The case was of considerable importance, since the by-law was in a standard form in common use throughout the country, and was considered carefully by the Court of Appeal. The decision of Bailhache J. was upheld, on the ground that the by-law was impossible to apply to additions to buildings (the rear of which would in practice consist of the original buildings) and that in any case to apply it as worded would give rise to consequences which were unnecessary for the protection of public health. Sutton ZZarbour Improvement Co. v. Poster 4 2 (1920). By a local Act and the Markets and Fairs Act 1847, the Company were
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Most of the relevant cases are listed in Halsbury's Laws of England, Vol. 24 (3rd ed.), pp. 516519. [1911] 2 K.B. 854; these by-laws were also considered in Harris v. Harrison (1914) 111 T1.T. 534. [I9111 2 K . R . at p. 871; the matter is discussed over several pages. [I9181 2 K.B. 133. 4 2 (1920) 89 L.J.K.B. 829 and 89 L.J.Ch. 540.

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authorised to build a quay and establish a fish market, and to regulate the market by by-laws; in 1912 they issued a by-law which prohibited the gutting and cleansing of fish except with the permission of the Wharf Master and in a place specified by him, and in 1919 they purported to ban the gutting of dog fish altogether on the ground that it was impossible to dispose of the offal from the market. M . Foster contended that the only alternativer gutting the fish a t sea-was impossible, and ignored the ban; he was prosecuted, but the magistrates found that the by-law would, in effect, prevent the landing and sale of dog fish altogether and destroy the industry, and that i t was therefore unreasonable. This decision was upheld by the Divisional Court of the Kings Bench Division. At the same time the Company applied for an injunction to prevent Mr. Foster gutting his fish on the quay: the application was heard by Russell J. in the Chancery Division, and he found that the fish could, without undue inconvenience and certainly without destroying the industry, be gutted on the boats in the harbour; on these facts he found the by-law reasonable and valid, and his decision was upheld by the Court of Appeal. Nicholls v. Tavistock U.L).C.43 (1922). I n 1862 the owner of an ancient market passed a by-law prohibiting the sale of goods by auction without the consent of an officer of the market, and when the Council took over the market in 1912 the by-law was allowed to stand; the result was that two firms were for many years allowed to monopolise the market until Mr. Nicholls sought a declaration that the by-law was void. Romer J. held that by the common law of England any person had the right to sell goods by auction a t a public market (subject only to the prescribed fees) and that a by-law which prohibited sales was repugnant to the law and invalid : a declaration was granted accordingly. Att.-Gen. V. Denby 4 4 (1925). This was another case arising out of the same by-law, passed on this occasion by the Lyme Regis Corporation, which had been considered in R e p t o n School Governors V. Repton R.D.C. The defendant bought a site a t the bottom of a steep hill, and proposed to build a hotel there, and his plans were approved by the Corporation ; however, the AttorneyGeneral applied for an injunction on the ground that the by-law would be broken and that there would be no adequate ventilation a t the rear of the building. Astbury J. heard evidence from an architect who had found over and over again that the by-law could not function in hilly places and was unintelligible when applied to such places; and there was further evidence that there would be adequate ventilation whether the by-law was ignored or not: he held, therefore, that i t was uncertain and unreasonable, and void. A new problem in the present century has arisen out of statutory powers exercised by the central government. The definition of the
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[1925] Ch. 59G.

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term by-law given by Lord Russell C.J. in Kruse v. Johnmn was in such wide terms that it could be said to include what would today be called statutory instruments; but the interpretation of such instruments had caused relatively little trouble up to then, and it is unlikely that he was addressing his mind to this aspect of the problem.4s Even in the cases arising out of the Defence Regulations in and after the 1914-18 War, although there are a few hints of unreasonableness, the issues were always decided on the ultra vires principle In one case only, Spnrlcs v. Edzoard Ash L t d 4 (1942) has a serious attempt been made to challenge a statutory rule on that ground. I n that case the plaintiff claimed damages for injuries sustained on a pedestrian crossing, and alleged a breach of regulations 2 and 4 of the Pedestrian Crossing Places (Traffic) Regulations 1935, made under the Road Traffic Act 1934; the regulations required a driver, when approaching a crossing, unless he could see that there was no pedestrian on it, to proceed a t such a speed as to be able if necessary to stop before reaching such crossing and to allow free and uninterrupted passage to pedestrians on such crossings, and to give precedence to them. The accident had occurred during the blackout, and the defendant, in effect, contended that the regulations were impossible to obey. I n the Court of Appeal, Scott L.J. quoted lengthy passages from Kruse v. Johnson and added that if it was the duty of the courts to recognise and trust the discretion of local authorities, much more must i t be so in the case of a minister responsible to Parliament and entrusted with the function of administering a department of state; in addition, such regulations had to be laid before Parliament and could be annulled in the usual way.48 MacKinnon and Goddard L.JJ. agreed with these views.49 IV. THEPRESENT POSITION Since 1925 by-laws have not given rise to many serious problems : probably by then most of the unlawful ones had been recognised and disposed of. The question has, however, recurred in a different
45

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47
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No serious attempt W ~ Rmade to challenge statutory rules on the ground of unreasonableness in Bailey v. Williamson (1873) L.R. 8 Q.B. 118 o r E r p . Foretnan (1887) 18 Q.B.D. 393 (which appear to have been the earliest cases on the validity of statutory rules); in Institute of Patent<$Agentsv. Lockwood [1894] A.C. 347, 352, Lord Herschel1 L.C. said bluntly: W e cannot question the reasonableness of Ihe rules. It is for the Legislature to do that. These cases were all decided on the uZtm vires principle. In R . v. Hallitlay [1917] A.C. 260, Lord Shaw would have rejected Regulation 14B on the ground that it was, h t e r alia, repugnant to liberty and law. Reference may also be made to Lipton Ltd. v. Ford [1917] 2 K.B. 647, Chester v. Batesoti [l920] I K.B. 821) and Newcnstle Breweries v. R. [1920] 1 K.B. 854. [1943] K.B. 223. I b i d . at pp. 229, 230. Ibid. at p. 240. I n Powell V . MaU [1946] K.U. 330 a by-law designed to restrict betting was held invalid because, although within the scope of its parent Act, it contravened other legislation. Other recent cases include United Billposti~gCo. v. Somerset

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context. Under the Town and Country Planning Act 1947, local planning authorities were empowered to grant planning permission subject to conditions, and such conditions closely resembled by-laws, as Lord Denning has pointed The matter was considered in detail in Mixnam Properties L t d . v. Chertsey U.D.C.52 I n that case, conditions (made on this occasion under the Caravan Sites and Control of Development Act 1960) were imposed that : 28. The site rents, which are to be inclusive of all services, except electricity, shall be agreed with the council. 29. Security of tenure, subject to conditions appertaining to a statutory tenancy of a dwelling-house under the Rent Acts, shall be granted to all caravan occupiers; 80. Site rules shall be restricted to those items normally covered by a tenancy agreement, and necessary for the good administration of the estate.

All these conditions were ultimately held ultra vires by the Court of Appeal and the House of Lords, but some interesting observations on unreasonableness and uncertainty are to be found in the judgments. Willmer L.J. said 63 that conditions must not be unreasonable, that is, such as Parliament clearly cannot have intended should be imposed, and that a condition might be held void for uncertainty if it was ambiguous or uncertain in its application, and he held No. 28 unreasonable and Nos. 29 and 80 impossible to apply. Diplock L. J. said ti4 : " The various grounds upon which subordinate legislation has can, I think, today be sometimes been said to be void properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus the kind of unreasonableness which invalidates a by-law is not the antonym of ' reasonableness ' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say : ' Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. .' If the courts can declare subordinate legislation to be invalid for ' uncertainty,' as distinct from unenforceable this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain.

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.. ...

. . ."

5l

52

53

54

C.C. (1926) 95 L.J.K.B. 899, Ireland v. Wilson [1936] 3 All E.R. 358 and Townsend (Builders) Ltd. v. Cinema News and Property Management Ltd. [1859] 1 Ail E.R. 7. Pawcett Properties Ltd. v. BfLckiwqh,yz G.C. [1961] A.C. 636, 679; in that an induRtry mainly case a condition including t$ phrase employment in . dependent upon agriculture was challenged as too vague, but was upheld. [I9641 1 Q.B. 214; [1965] A.C. 735. [1964] 1 Q.B. a t pp. 226-227. Ibid. at p. 237.

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THE MODERN LAW REVIEW

VOL.

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and the rule against repugnance was merely an application of the general presumption that Parliament does not intend to alter the law in the absence of clear words and does not confer wider powers on a subordinate authority. I n the House, Viscount Radcliffe saidss that if a condition was too uncertain to convey a clear meaning as to what i t required, it was in law no condition a t all, for it could not be enforced and no penalty could be exacted for its breach. Lord Upjohn thought56 that most of the conditions under discussion were unreasonable because they involved such oppressive or gratuitous interference with the rights of the occupier as could find no justification in the minds of reasonable men. The position of statutory instruments was considered again in McEldowney v. Forde 5 7 (1969). This case arose out of an instrument, made by the Minister of Home Affairs of Northern Ireland under the Civil Authorities (Special Powers) Act (N.I.) 1922, which contained a regulation designed to proscribe certain unlawful organisations, including organisations describing themselves as Republican Clubs or any like organisation howsoever described. Most of the debate turned on the ultra vires principle, but forcible arguments were addressed to the court to the effect that the regulation was so vague, arbitrary or ambiguous as to be invalid. The regulation was upheld by a two-one majority in the Court of Appeal of Northern Ireland and a three-two majority in the House of Lords. However, in one dissenting judgment Lord Macdermott C.J. declared s8 that the regulation was too sweeping and too remote on any rational view, and Lord Pearce concluded his speech by saying 5 9 It is too vague and ambiguous to be valid. Lord Hodson posed this question : Is the whole regulation too vague and so arbitrary as to be wholly unreasonable as if, to take an example from one of the cases, a person were to be proscribed because he had red hair; or is the regulation a legitimate and valid exercise of the Ministers powers confirmed [sic] on him by statute?

...

These dicta would support the proposition that even a statutory instrument, otherwise intra vires, can be invalidated (notwithstanding Sparks v. Edward Ash L t d . ) if i t is unreasonable.61 The present position, therefore, appears to be as follows : (i) It is possible that the courts might invalidate a statutory instrument on the grounds of unreasonableness or uncertainty, vagueness or arbitrariness; but the writers view is that for a.ll
55
56

57 58 59
80

(1

[1965] A.C. at p. 752. I b i d . at p. 765. [1969 3 W.L.R. 179. 1969 2 A11 E.R. at p. 1046. 1969 3 W.L.R. at p. 196. b i d . at p. 1%. I t is pertinent to note that everyone approached this case from the point of view of the control of executive discretion by the judiciary: the line of authoritiea discussed in this art.icle was not considered a t all.

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CONTROL OF DELEGATED LEGISLATION

623

practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test. (ii) The courts are prepared to invalidate by-laws, or any other form of legislation, emanating from an elected, representative authority, on the grounds of unreasonableness, uncertainty or repugnance to the ordinary law; but they are reluctant to do SO, and will exercise their power only in clear cases. (iii) The courts may be readier to invalidate by-laws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson, might not now be applied so stringently. (iv) As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from I n re French Protestant Hospitaloa that it would be subject to strict control. With regard to the grounds of control, the reasoning of Diplock L.J. in Mixnam Properties L t d . v. Chertsey U.D.C., to the effect that the tests are simply an aspect of the ultra vires principle, is open to theoretical objections, first because it fails to take into account the independent origin of the grounds, and secondly because it would ultimately result in statutory instruments being subject to the same tests as by-laws. In practical terms, however, Diplock L.J.s statement of the tests may be regarded as a useful summary. A by-law will be regarded as unreasonable if it leads to manifest arbitrariness, injustice or partiality; and, in addition, if it is, either physically or legally, impossible to obey. A by-law will be regarded as uncertain if the persons required to obey it cannot ascertain what is required of them. Finally, a by-law will be invalid if, even though it is intra vires in respect of its own parent statute, it contravenes another statute or purports to make something unlawful which the general law says is lawful. ALAN WHARAM.+

62

* U.A.

Supra at n. 35.
(Cantab.) ; Barrister-&Law ; Senior Lecturer in Law, Leeds Polytechnic.