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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
    1. Attorney-General v Aspinall [1835-42] All ER Rep 525
    2. Kruse v Johnson [1898] 1 2 QB 91
    3. Roberts v Hopwood [1925] All ER 24; [1925] AC 578
    4. Secretary of State for Education and Science v Tameside MBC [1976] 3 All ER 665; [1976] 3 WLR 641
    5. Bromley London Borough Council v Greater London Council and another [1982] 1 All ER 129
    6. Wheeler and others v Leicester City Council [1985] 2 All ER 151 (CA)
    7. Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL)
    8. R v Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER 938
    9. Norwich City Council v Secretary of State for the Environment [1982] 1 All ER 737
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Kruse v Johnson [1898] 1 2 QB 91

LORD RUSSELL OF KILLOWEN CJ: The question reserved for this court is whether the by-law is valid. If valid, the conviction is to stand. It is objected that the by-law is ultra vires, on the ground that it is unreasonable, and therefore bad. It is necessary, therefore, to see what is the authority under which the by-law in question has been made, and what are the relations between its framers and those affected by it. But first it seems necessary to consider what is a by-law. 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 would 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-see Edmonds v Watermen's Co. In the present case we are dealing with a by-law made by a local representative body - namely, the County Council of Kent - which is created under the Local Government Act 1888 and is endowed with the powers of making by-laws given to municipal corporate bodies under the Municipal Corporations Act 1882.... We thus find that Parliament has thought fit to delegate to representative public bodies in towns and cities, and also in counties, the power of exercising their own judgment as to what are the by-laws which to them seem proper to be made for good rule and government in their own localities. But that power is accompanied by certain safeguards; there must be antecedent publication of the by-law, with a view, I presume, of eliciting the public opinion of the locality upon it, and such by-laws shall have no force until after they have been forwarded to the Secretary of State. ... I agree that the presence of these safeguards in no way relieves the court of the responsibility of inquiring into the validity of by-laws where they are brought in question, or in any way affects the authority of the court in the determination of their validity or invalidity. It is to be observed, moreover, that the by-laws having come into force they are not like the laws, or what were said to be the laws, of the Medes and Persians-they are not unchangeable. The power is to make by-laws from time to time as to the authority shall seem meet, and if experience shows that in any respect existing by-laws work hardly or inconveniently the local authority, acted upon by the public opinion, as it must necessarily be,-of those concerned, has full power to repeal or alter them. It need hardly be added that should experience warrant that course, the legislature, which has given, may modify or take away the powers it has delegates. 1 have thought it well to deal with these point in some detail, and for this reason-that the great majority of the cases in which the question of by-laws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of railway companies, dock companies, or other like companies which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of case it is right that the courts should jealously watch the exercise of these powers and guard against their unnecessary or unreasonable exercise to the public disadvantage. But when the court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, "benevolently" interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any by-laws so made under such conditions on the ground of supposed unreasonableness. Notwithstanding what Cockburn C.J. said in Bailey v. Williamson - an analogous case - I do not mean to say that there may not be cases in which it would be the duty of the court to condemn by-laws made under such authority as these were made as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, if they 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, the court might well say Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. But it is in this sense, and in this sense only as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that, in matters which directly and mainly concern the people of the county who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.... I now come to the by-law in question. It is admitted that the County Council of Kent were within their authority in making a by-law in relation to the subject matter which is dealt with by the impeached by-law. In other words, it is conceded - and properly so - that the local authority might make a by-law imposing conditions under which musical instruments and singing might be permitted or prevented in public in places. But it is objected that they had no authority to make a by-law on that subsection in the terms of this by-law. Further, it is not contended that the by-law should, in order to be valid, be confined to cases where the playing or singing amounted to a nuisance; but the objections are, as I understand them, that the by-law is bad - first, because it is not confined to cases where the playing or singing is in fact causing annoyance, and the next because it enables a police constable to bring it into operation by a request on his part to the player or singer to desist. As to the first of these objections, if the general principles upon which these by-laws ought to be dealt with are those which I have already stated, it is clear that the absence of this qualification cannot make the by-law invalid. But further' such a qualification, in my judgment, would render the by-law ineffective. What is to be the standard of annoyance? What may be a cause of annoyance to one person may be of no annoyance, and may even be pleasurable, to another person. Again, who is to be the judge in such a case of whether there is or is not an annoyance? Is it to be the resident of the house within fifty yards of the playing or singing, or is it to be the magistrate who hears the charge? It is enough to say that, in my judgment, the absence of the suggested qualification cannot make they by-law invalid, even if it be admitted that its presence would be an improvement. As to the second objection - namely, that the policeman has the power of putting the by-law into operation by requiring the player or singer to desist - I again say that, even if the absence of this power would be an improvement and would make the by-law in the apprehension of some more reasonable, it is not on the principles I have already stated any ground for declaring the by-law to be invalid. In support of this objection pictures have in argument been drawn (more or less highly coloured) of policemen who, without rhyme or reason, would or might gratuitously interfere with what might be a source of enjoyment to many. In answer, I say a policeman is not an irresponsible person without check or control; if he acts capriciously or vexatiously he can be checked by his immediate superiors, or he can be taught a lesson by the magistrates should he prefer vexatious charges. If the policeman persisted in saying that the musician should desist when the people in the neighbourhood desire his music, his gratuitous interference would promptly come to an end. Nor is it correct to say (as has been erroneously stated in some of the cases cited) that the magistrate would be bound in every case to convict where the musician did not desist when called upon. It is clear that, under section 16 of the Summary Jurisdiction Act 1879, the magistrate, if he thinks the case of so trifling a nature that it is inexpedient to inflict any punishment, may without proceeding to conviction dismiss the information. The facts of this case are certainly no illustration of the by-law having been gratuitously or vexatiously put in force. The case states that although it was not proved that the occupier of the house within fifty yards had on the day in question requested the constable to require the appellant to desist, yet it was proved that the singing was an annoyance to the occupier, and that he had on previous occasions complained to the police of such singing.....

... In my opinion, judged by the test of reasonableness, even in its narrower sense, this is a reasonable by-law; but, whether I am right or wrong in this view, I am clearly of opinion that no court of law can properly say that it is invalid. In the result the conviction appealed from must, in my opinion, be affirmed.....