JUDICIAL CONTROL OF DELEGATED LEGISLATION: THE TEST OF REASONABLENESS

DOIhttp://doi.org/10.1111/j.1468-2230.1973.tb01390.x
AuthorAlan Wharam
Published date01 November 1973
Date01 November 1973
JUDICIAL CONTROL
OF
DELEGATED
LEGISLATION
:
THE TEST
OF
REASONABLENESS
I.
THE
BACKGROUND
UNTIL the 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 cor-
porations, 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
lo;
courts baron and
courts leet, which had power to legislate in respect
of
matters within
their respective manors
ll;
and the Stannary Parliaments of
'
Except in cases where the by-law contravened the terms
of
an extant charter:
e.g.
R.
V.
Cutbtcsh
and
R.
v.
Breton
(1768) 4
Burr.
'2204
and
22GO.
It 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
I'
byelaw
";
the editors of the
Law 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.
5
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 as 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.
6
Dodwell
v.
Untuersity
of
Oxford
(1680) 2
Vent.
33.
R.
v.
President and
College
of
Physicians
(1797) 7
T.R.
282.
8
Sutton's Hosnital
Case
(16121
10
Co.Ren.
1.
9
Cliild
v.
Huhson's Bai Company
(17i3) 2
P.Wms.
207.
per
Macclesfield L.C.
10
Butchers' Company
v.
Morey
(1790) 1
H.BI.
370.
11
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.
at
PP.
80-87.
and many
others are extant and may be found in books on local-history.
.
Their soie
surviving function appears
to
be in connect,ion with the management of
corn-
611

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT