DPP v Hutchinson [1988] UKHL 11

House of Lords

Between

DPPAppellant

HutchinsonRespondent

Before

Lord Bridge of Harwich

It is Ordered and Adjudged , by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's Court of Justice of the 21st day of October 1988 complained of in the said Appeals be, and the same is hereby, Set Aside , save as to legal aid taxation and that the Orders of the Reading Crown Court of the 25th day of February 1988 be, and the same are hereby Restored: And it is further Ordered, That the Costs incurred by the said Appellants in the Divisional Court below and also the Costs incurred by them in respect of the said Appeals to this House be paid from central funds pursuant to the Prosecution of Offences Act 1985, the amounts thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Causes be, and the same are hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Cler: Parliamentor

Judgment: 12.7.90

HOUSE OF LORDS

DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)

HUTCHINSON (APPELLANT)

(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S

BENCH)

DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)

SMITH

(APPELLANT) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S

BENCH) (CONJOINED APPEALS)

Lord Bridge of Harwich Lord Griffiths Lord Oliver of Aylmerton Lord Goff of Chieveley Lord Lowry

LORD BRIDGE OF HARWICH

My Lords,

These two appeals raise important questions as to the tests to be applied in determining whether delegated legislation which on its face exceeds the power conferred upon the legislator may nevertheless be upheld and enforced by the courts in part on the basis that the legislation is divisible into good and bad parts and that the good is independent of, and untainted by, the bad.

Each of the appellants was convicted by the Newbury justices of an offence under byelaw 2(b) of the R.A.F. Greenham Common Byelaws 1985 (S.I. 1985 No. 485) ("the Greenham byelaws") of entering without authority or permission the area enclosed within the perimeter fence and gates which is defined by the byelaws (byelaw 1) and therein referred to as "the protected area."

The Greenham byelaws were made by the Secretary of State for Defence pursuant to section 14(1) of the Military Lands Act 1892 which authorises him to make byelaws regulating the use of land appropriated for military purposes "with power to prohibit all intrusion on the land" subject to the following proviso:

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"Provided that no byelaws promulgated under this section shall authorise the Secretary of State to take away or prejudicially affect any rights of common."

Entries in the register under the Commons Registration Act 1965 show that Greenham and Cookham Commons, over parts of which the protected area as defined in the Greenham byelaws extends, are subject to rights in favour of 62 commoners, which include the right to take gravel, to take wood for fuel and fencing and to graze 90 animals. Neither of the appellants claims at any time to have been entitled to exercise any rights of common.

The appellants appealed to the Crown Court at Reading who quashed their convictions on the ground that byelaw 2(b), inter alia, was ultra vires as contravening the proviso to section 14(1) of the Act of 1892, but stated a case for the opinion of the High Court. The Divisional Court (Mann L.J. and Schiemann J.) [1989] Q.B. 583 allowed the Crown's appeal and restored the convictions. They held that the Greenham byelaws, although ultra vires on their face, could be severed, so that they might be upheld and enforced as against all except persons entitled to exercise rights of common over the protected area. It mattered not that the severance could only be achieved by reading into the byelaws, where necessary, appropriate exceptions and exemptions, provided that the court was satisfied, as Schiemann J. stated, at p. 599, that it was, that the Secretary of State, if he had appreciated the limitation on his powers, would

"nevertheless have gone on to make the byelaws in such a way that the proviso to section 14(1) was given effect but that all the world save commoners would still have been within their ambit."

The court certified that their decision involved the following questions of law of general public importance:

"1. Whether and if so in what circumstances a person can lawfully be convicted of an offence against a byelaw when the byelaw on the face of it is wider in its field of application than is permitted by the empowering Act and yet had the byelaw been drawn only as widely as the empowering Act authorises the person convicted would undoubtedly have been rightly convicted. 2. Whether and if so in what circumstances a person can be convicted of an offence against a byelaw when the byelaw-maker must have failed to take into account a relevant consideration namely that he had no power to make a byelaw of the breadth of application which the relevant byelaw had."

When a legislative instrument made by a law-maker with limited powers is challenged, the only function of the court is to determine whether there has been a valid exercise of that limited legislative power in relation to the matter which is the subject of disputed enforcement. If a law-maker has validly exercised his power, the court may give effect to the law validly made. But if the court sees only an invalid law made in excess of the law- maker's power, it has no jurisdiction to modify or adapt the law to bring it within the scope of the law-maker's power. These, I believe, are the basic principles which have always to be borne in

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mind in deciding whether legislative provisions which on their face exceed the law-maker's power may be severed so as to be upheld and enforced in part.

The application of these principles leads naturally and logically to what has traditionally been regarded as the test of severability. It is often referred to inelegantly as the "blue pencil" test. Taking the simplest case of a single legislative instrument containing a number of separate clauses of which one exceeds the law-maker's power, if the remaining clauses enact free-standing provisions which were intended to operate and are capable of operating independently of the offending clause, there is no reason why those clauses should not be upheld and enforced. The law-maker has validly exercised his power by making the valid clauses. The invalid clause may be disregarded as unrelated to, and having no effect upon, the operation of the valid clauses, which accordingly may be allowed to take effect without the necessity of any modification or adaptation by the court. What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker's power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in its legislative purpose, operation and effect.

The early English authorities take it for granted, I think, that if byelaws are to be upheld as good in part notwithstanding that they are bad in part, they must be both textually and substantially severable. Thus, Lord Kenyon C.J. said in Rex v. Company of Fishermen of Faversham (1799) 8 Term. 352, 356:

"With regard to the form of the byelaw indeed, though a byelaw may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other."

In Reg v. Lundie (1862) 8 Jur. N.S. 640 the byelaw in question provided:

"if any person shall stock or depasture, inter alia, a vicious horse on any part of the common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock and cattle, shall respectively forfeit and pay for every such offence the sum of £5."

The Court of Queen's Bench upheld the validity of the byelaw as against a person responsible for depasturing a vicious horse on the common notwithstanding that it might be unreasonable and therefore ultra vires as against an innocent owner. Cockburn C.J. said, at p. 641:

"It has been contended that this byelaw is unreasonable, because the owner of such an animal might innocently, and without knowledge or intention, be brought within its scope, and become liable to the penalties thereby imposed. But,

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admitting so far the justice of this objection, it seems to me that we may, consistently with the authorities, reject this portion, and act upon the remainder of the byelaw, which is perfectly good and reasonable. I think, therefore, the conviction should stand."

In Strickland v. Hayes

[1896] 1 QB 290

, 292, Lindley L.J, said:

"I have no doubt whatever that those words are bad. But that being so, is the rest of the byelaw bad? There is plenty of authority for saying that if a byelaw can be divided, one part may be rejected as bad while the rest may be held to be good. In the present case there is, I think, no difficulty whatever in severing the byelaw. If the words 'on any land adjacent thereto' are omitted, the rest of the byelaw reads quite grammatically. The byelaw is, therefore, distinctly severable."

The fullest exploration and exposition of the principles governing the severability of legislative instruments is found in the jurisprudence which the United States Supreme Court and the High Court of Australia developed in considering the constitutionality of legislation enacted in exercise of the limited powers of the federal legislature or of orders made in pursuance of such legislation. In Illinois Central Railroad Co. v. McKendree (1906) 203 U.S. 514, the Supreme Court held that an order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that the same line was fixed as to intrastate shipments by legislation of the state through which it passed. Day J., delivering the opinion of the court, said, at pp. 528-529:

"It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. . . . We do not say that the state line might not be adopted in a proper case, in the exercise of federal authority, if limited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary's order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible."

The decision reported as The Employers' Liability Cases (1908) 207 U.S. 463, was another decision of the Supreme Court, disposing of two appeals heard together, which depended on the scope of the federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was a matter of acute

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controversy and the decision holding the statute to be unconstitutional was given by a majority of five to four. But the following statement of the general principles which govern severability, taken from the majority opinion, appears not to have been controversial. White J. said, at p. 501:

"Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and ethers which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where is is plain that Congress would have enacted the legislation with the unconsitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U.S. 514, and authorities cited there."

Turning to the Australian authorities, one finds the same emphasis placed on textual severability, but a slightly different formulation of the test of substantial severability. In Rex v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co. (1910) 11 C.L.R. 1, 26-27, Griffiths C.J. said;

"It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest respect, that the test is this, that if the court, on a consideration of the whole statute, and rejecting the parts held to be ultra vires, is unable to say that the legislature would have adopted the rest without them, the whole statute must be held invalid. With profound deference I venture to doubt the accuracy of this test. What a man would have done in a state of facts which never existed is a matter of mere speculation, which a man cannot certainly answer for himself, much less for another. I venture to think that a safer test is whether the statute with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it."

Isaacs J . said, at p. 54:

"If good and bad provisions are wrapped up in the same word or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad - and this can only be done by condemning the word or phrase which contains it - the good must share the same fate."

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In Owners of S.S. Kalibia v. Wilson (1910) 11 C.L.R. 689, a question fell for decision respecting the constitutional validity of provisions of the Seamen's Compensation Act 1909 relating to "the employment of seamen on ships engaged in the coasting trade." In Australia, as in the United States, the federal legislature was not authorised to legislate with respect to the internal trade of a state, but only with respect to trade between states. Griffiths C.J. said, at p. 699:

"When a legislature assumes jurisdiction over a whole class of ships over some of which it has, and over others of which it has not, jurisdiction, and plainly asserts its intention to put them on the same footing, the court would be in effect making a new law if it gave effect to the statute as a law intended to apply to part only of the class. Whether the legislature would or would not have imposed disabilities upon some only of the class if they had applied their mind to the subject is entirely problematical. It is sufficient to say that the law as sought to be enforced is substantially a different law from that actually enacted."

Barton J. said, at p. 701:

"What does the expression 'coasting trade' mean? In its ordinary sense, and here there is no ambiguity, it means trade between any ports on the coast. It implies no limitation as to the states in which such ports may be. That is a meaning too large to be carried by the terms in which the power of Parliament in this regard is conferred, namely, power to make laws with respect to 'trade and commerce with other countries, and among the states.' Trade among the states does not include trade confined to the coast of a single state. But the term 'coasting trade' does include it. There can be no severance of the valid from the invalid where a collective expression such as 'coasting trade' is used. To recall a suggestion made during the argument, it is not as if Parliament had enacted that certain specified things, say A, B, and so on down to Z, might lawfully be done, the first half-dozen being within its legislative power and the remainder outside it. There the bad can be separated from the good and excised, and if there be left a law not substantially or radically different, dealing effectively with so much of the subject matter as is within the legislative power, the Act will be good, minus the invalid provisions eliminated."

Isaacs J. said, at pp. 714-715:

"The Parliament has dealt with the 'coasting trade' as a trading along the coast of Australia from any one port to any other port as if it were a whole. It has enacted one uniform rule with respect to it, and I must presume it did so for some reason which to it seemed desirable. We cannot then say whether or not Parliament would or would not in its discretion have made a separate provision placing the seamen engaged in interstate, foreign and territorial trade in a better position than those engaged in intrastate trade. It is enough to say Parliament up to the present has not seen fit to do so. It would therefore be exceeding our

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functions as interpreters of the law to change the character of the legislation, and in effect to enact it separately. We cannot say of the enactment as to the coasting trade that part is good and part is bad, because there are not two parts of the enactment, it is one. The coasting trade may be divisible, but the enactment is not, and therefore the doctrine of preserving one part of it, though condemning the other, is impossible of application."

This is a formidable body of judicial opinion in support of the proposition, on which Miss Lang relies, that the court may only treat a legislative instrument as good in part when the test of textual severability as well as that of substantial severability is satisfied. But it is right to notice, in the last case referred to, the dissenting opinion of Higgins J., who said, at pp. 718-719:

"Then the next question arises - is the Act invalid as to seamen on ships engaged in the coasting trade between states because it is invalid as to seamen on ships engaged in the coasting trade within the boundaries of a single state? If we are free to exercise mere common sense, without being fettered by certain legal decisions in the United States, I should say not, without any hesitation. The Act prescribes a duty as to individual seamen A, B, C and D, and a duty as to invididual seamen E, F, G and H. The duty as to each seaman, the interest of each seaman, is separate and distinct. If the legislature is empowered to prescribe a duty as to A, B, C and D, but not empowered to prescribe a duty to E, F, G and H, the order prescribing a duty with regard to A, B, C, D, E, F, G and H ought to be valid as to A, B, C and D, invalid as to E, F, G and H. Prima facie, there is no reason why the Act should not be operative as far as it can be made operative. Of course, if there were any reason to believe, from the nature of the case, that the Act would not have been passed with regard to A, B, C and D unless it were also operative with regard to E, F, G and H, the position would be different."

It is also right to note that in Australia the question is now governed by section 15A of the Acts Interpretation Act 1901-1973 introduced by amendment in 1930. The section provides:

"Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

I have not explored the modern position in the United States.

Our attention has been drawn to a number of more recent English authorities on the severability of provisions contained in various documents of a public law character. I doubt if these throw much light on the specific problem of severance in legislative instruments. The modern authority most directly in point and that on which the Divisional Court relied is Dunkley v. Evans [1981] 1 W.L.R. 1522. The West Coast Herring (Prohibition

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of Fishing) Order 1978 (S.I. 1978 No. 930) prohibited fishing for herring in an area defined in the Schedule to the Order as within a line drawn by reference to co-ordinates and coastlines. I he Order was made by the Minister of Agriculture, Fisheries and Food under the Sea Fish (Conservation) Act 1967. The prohibited area included a stretch of sea adjacent to the coast of Northern Ireland, representing 0.8 per cent. of the total area covered by the Order, to which the enabling power in the Act of 1967 did not extend. The appellant had been convicted of fishing in a part of the prohibited area to which the enabling power did extend. On appeal against conviction it was contended that, by including the area to which the enabling power did not extend, the Minister had acted ultra vires and, since textual severance was not possible, the whole Order was invalid. The Divisional Court rejected this argument. Delivering the judgment of the court, Ormrod L.J. cited, at pp. 1524-1525, the following passage from the judgment of Cussen J. in the Supreme Court of Victoria in Olsen v. City of Camberwell [1926] V.L.R. 58, 68:

'"If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or, in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail."'

It is to be noted that this quotation is from the judgment in a case where textual severance was possible. Following the quotation the judgment of Ormrod L.J. continued:

"We respectfully agree with and adopt this statement of the law. It would be difficult to imagine a clearer example than the present case of a law which the legislative body would have enacted independently of the offending portion and which is so little affected by eliminating the invalid portion. This is clearly, therefore, an order which the court should not strive officiously to kill to any greater extent than it is compelled to do. ... We can see no reason why the powers of the court to sever the invalid portion of a piece of subordinate legislation from the valid should be restricted to cases where the text of the legislation lends itself to judicial surgery, or textual emendation by excision. It would have been competent for the court in an action for a declaration that the provisions of the Order in this case did not apply to the area of the sea off Northern Ireland reserved by section 23(1) of the Act of 1967, as amended, to make the declaration sought, without in any way affecting the validity of the Order in relation to the remaining 99.2 per cent. of the area referred to in the Schedule to the Order. Such an order was made, in effect, by the House of Lords in Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. [1969] 1 W.L.R. 697, and by Donaldson J. in Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd. [1972] 1 W.L.R. 190."

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I do not think any light is thrown on the point at issue by the last two cases referred to by Ormrod L.J. In Hotel and Catering Industry Training Board v. Automobile Proprietary Ltd. the subordinate legislation in question was textually severable. In Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd, the text was not severable but the issue of severance was never canvassed in argument and I cannot help thinking that the outcome might have been different if it had been.

Another case on which the Divisional Court relied was Thames Water Authority v. Elmbridge Borough Council [1983] Q.B. 570. This concerned the validity of a resolution passed by a local authority under section 163 of the Local Government Act 1933 appropriating land for certain purposes. The land to which the resolution, on its face, applied included a small area which the local authority had no power to appropriate. The court held the resolution to be a valid exercise of the power in relation to land which the authority had power to appropriate. What the court was doing in this case was simply construing the local authority's resolution in relation to facts affecting land to which it applied. I do not think the case can be regarded as authoritative as to the severability of legislative instruments. It is one thing to determine the effect of an exercise of statutory power, as in this case an appropriation of land, which is exercised once and for all. It is quite another to decide whether an instrument purporting to make a law to which all will be subject so long as the law operates was a valid exercise of the law-maker's limited power.

The modern English authority to which I attach most significance is Daymond v. South-West Water Authority [1976] A.C. 609, where severability was not in issue, but where it appears to have been taken for granted without question that severance was possible. Section 30(1) of the Water Act 1973 gave power to water authorities:

"to fix, and to demand, take and recover such charges for the services performed, facilities provided or rights made available by them (including separate charges for separate services, facilities or rights or combined charges for a number of services, facilities or rights) as they think fit."

The subsection was silent as to who was liable to pay the charges. The Water Authorities (Collection of Charges) Order 1974 (S.I. 1974 No. 448) embodied provisions which required a rating authority to collect on behalf of a water authority a "general services charge" (article 7(2)) referable to sewerage services "from every person who is liable to pay the general rate in respect of a hereditament. . . ." (article 10(1)). A householder whose property was not connected to a sewer, the nearest sewer being 400 yards away from his house, refused to pay the charge and brought an action for a declaration that the Order could not properly apply to him. This House held, by a majority of three to two, that on the true construction of the enabling legislation there was no power to impose a charge for sewerage services upon occupiers of property not connected to a sewer. As I have said, the question of severability was not raised, but there is no hint in the speeches that the invalidation of the charging provision in relation to properties not connected to sewers would affect their validity in relation to properties which were so connected.

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The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker's power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases, of which Dunkley v. Evans and Daymond v. South-West Water Authority are good examples, have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker's power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision. Thus, in Dunkley v. Evans, the legislative purpose and effect of the prohibition of fishing in the large area of the sea in relation to which the minister was authorised to legislate was unaffected by the obviously inadvertent inclusion of the small area of sea to which his power did not extend. In Daymond v. South-West Water Authority the draftsman of the Order had evidently construed the enabling provision as authorising the imposition of charges for sewerage services upon occupiers of property irrespective of whether or not they were connected to sewers. In this error he was in the good company of two members of your Lordships' House. But this extension of the scope of the charging power, which, as the majority held, exceeded its proper limit, in no way affected the legislative purpose and effect of the charging power as applied to occupiers of properties which were connected to sewers.

To appreciate the full extent of the problem presented by the Greenham byelaws it is necessary to set out the full text of the prohibitions imposed by byelaw 2 which provides:

"No person shall:

enter or leave or attempt to enter or leave the protected area except by way of an authorised entrance or exit.

enter, pass through or over or remain in or over the protected area without authority or permission given by or on behalf of one of the persons mentioned in byelaw 5(1).

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to be or remain in or upon or over the protected area without authority or permission given by or on behalf of one of the persons mentioned in byelaw 5(1).

remain in the protected area after having been directed to leave by any of the persons mentioned in byelaw 4.

make any false statement, either orally or in writing, or employ any other form of misrepresentation in order to obtain entry to any part of the protected area or to any building or premises within the protected area.

obstruct any constable (including a constable under the control of the Defence Council) or any other person acting in the proper exercise or execution of his duty within the protected area.

enter any part of the protected area which is shown by a notice as being prohibited or restricted.

(h) board, attempt to board, or interfere with, or interfere with the movement or passage of, any vehicle, aircraft or other installation in the protected area. (i) distribute or display any handbill, leaflet, sign, advertisement, circular, poster, bill, notice or object within the protected area or affix the same to either side of the permimeter fences without authority or permission given by or on behalf of one of the persons mentioned in byelaw 5(1). (j) interfere with or remove from the protected area any property under the control of the Crown or the service authorities of a visiting force or, in either case, their agents or contractors. (k) wilfully damage, destroy, deface or remove any notice board or sign within the protected area.

(1) wilfully damage, soil, deface or mark any wall, fence, structure, floor, pavement, or other surface within the protected area."

It is at once apparent that paragraphs (a), (b), (c), (d), (g), (j) and (1) are ultra vires as they stand. Paragraphs (e), (f), (i) and (k) appear to be valid and paragraph (h) is probably good in part and bad in part, since the exercise by a commoner of his rights may well interfere with the movement or passage of vehicles. Textual severance can achieve nothing since it is apparent that the valid provisions are merely ancillary to the invalid provisions.

There is exhibited to the case stated by the Crown Court a letter written by an official of the Ministry of Defence to an objector at the time the byelaws were made which concludes with the sentence:

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"Finally I can confirm that in accordance with the enabling Act, the Military Lands Act 1892, the byelaws will not affect rights of common."

Mr. Laws has invited us to infer from this that the Secretary of State for Defence made the byelaws in the belief that the law would imply the necessary exceptions to prevent the byelaws from prejudicially affecting rights of common. I do not think we are entitled to take account of the letter in considering whether the byelaws may be upheld as valid in part. But in any event it is a matter of pure speculation as to what the writer of the letter had in mind. The draftsman of the byelaws cannot possibly have been in ignorance of the terms and effect of the proviso to section 14(1) of the Act of 1892 and the theory of an inadvertent omission appears the less plausible since five sets of byelaws in relation to common lands used for military purposes which were made by the Secretary of State for Defence under section 14 of the Act of 1892 in the years 1976 to 1980 all contain careful express provisions to safeguard rights of common.

I think the proper test to be applied when textual severance is impossible, following in this respect the Australian authorities, is to abjure speculation as to what the maker of the law might have done if he had applied his mind to the relevant limitation on his powers and to ask whether the legislative instrument

"with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it" (Rex v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co., 11 C.L.R. 1, 27).

In applying this test the purpose of the legislation can only be inferred from the text as applied to the factual situation to which its provisions relate. Considering the Greenham byelaws as a whole it is clear that the absolute prohibition which they impose upon all unauthorised access to the protected area is no less than is required to maintain the security of an establishment operated as a military airbase and wholly enclosed by a perimeter fence. Byelaws drawn in such a way as to permit free access to all parts of the base to persons exercising rights of common and their animals would be byelaws of a totally different character. They might serve some different legislative purpose in a different factual situation, as do some other byelaws to which our attention has been drawn relating to areas used as military exercise grounds or as military firing ranges. But they would be quite incapable of serving the legislative purpose which the Greenham byelaws, as drawn, are intended to serve.

For these reasons I conclude that the invalidity of byelaw 2(b) cannot be cured by severance. It follows that the appellants were wrongly convicted and I would allow their appeals, set aside the order of the Divisional Court and restore the order of the Crown Court at Reading. The certified questions are formulated in terms which are too broad to admit of concise answers. The principles by which the answers are to be ascertained are those which I have endeavoured to express in this opinion.

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LORD GRIFFITHS

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and, for the reasons which he has given, I would allow the appeals and set aside the order of the Divisional Court and restore the order of the Crown Court at Reading.

LORD GOFF

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it and, for the reasons which he has given, I would allow the appeals and set aside the order of the Divisional Court and restore the order of the Crown Court at Reading.

LORD OLIVER OF AYLMERTON

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bridge of Harwich. I agree with it and would allow the appeal for the reasons which he has given.

LORD LOWRY

My Lords,

I entirely agree with the conclusion of my noble and learned friend, Lord Bridge of Harwich, whose speech I have had the advantage of reading in draft, that byelaw 2(b) is invalid and that these appeals should therefore be allowed. I have also followed with admiration the history, so clearly traced by my noble and learned friend, of the doctrines of textual and substantial severability under English, American and Australian law as those doctrines affect both subordinate legislation and legislation which is governed by the limitations of a written constitution, and I further agree that, whatever view one may entertain concerning the doctrine of textual severability as applied to the legislation now impugned, byelaw 2(b) cannot, with respect to members of the public generally (as distinct from persons enjoying rights of common), survive the test of substantial severability. For that reason, apart from any other, the appeals must succeed. I am, however, reluctant to leave this case without making some

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reservation in favour of what I understand to be the traditional doctrine of textual severability.

My noble and learned friend Lord Bridge has traced back to 1799 that doctrine, which seems to have gained universal acceptance in the common law world. Clear statements of the doctrine have been cited by my noble and learned friend. I will be content with one extract, part of which he has already cited, from the judgment of Isaacs J. in Rex v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co., 11 C.L.R. 1, 54:

"If good and bad provisions are wrapped up in the same word or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad - and this can be done only by condemning the word or phrase which contains it - the good must share the same fate. But where the two sets of provisions are not, so to speak, physically blended, but are contained in separate words, phrases, sentences, clauses or even parts of an Act, further considerations are necessary to determine whether, though physically separate, they have been made legally inseparable."

The concluding words of this passage, of course, adumbrate the doctrine of substantial severability. The point made, however, is that the part of the legislation which it is desired to uphold must pass the test of textual severability before the test of substantial severability comes to be considered at all. No doubt this strict rule can lead to great inconvenience, particularly in its impact on primary legislation, and, as my noble and learned friend has noted, its effect was mitigated in 1930 by section 15A of the Acts Interpretation Act 1901-1973, which provides:

"Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall never- theless be a valid enactment to the extent to which it is not in excess of that power."

In 1937 a new section 46 was introduced, which was a severance clause with regard to secondary legislation.

In the absence of some such statutory provisions, it would appear that the strict rule of textual severability will apply. Olsen v. City of Camberwell [1926] V.L.R. 58 was decided before section 15A was enacted and, while it has most frequently been cited as an authority on substantial severability, it also adopts the conventional view on textual severability, as appears from the judgment of the Full Court delivered by Cussen J., at p. 67:

"it would apppear that clauses 1 and 2 of Part XIX [of byelaw no. 46 of the City of Camberwell] are too wide, and are therefore invalid, and should be quashed. There is no room for the application of the doctrine of severability. The clauses being expressed in perfectly general language, and applying to all requirements previously mentioned, no

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part of clause 1 or of clause 2, which is merely ancillary to clause l, can be stricken off from the rest, and all must go: Ex parte Whybrow & Co. (1910) 11 C.L.R. 1 and per Irvine C.J. in Bardsley v. The Commonwealth [1926] V.L.R. post."

A helpful modern review of severability is found in Reg, v. Secretary of State for Transport, Ex parte Greater London Council [1986] Q.B. 556 in the judgment of McNeill J. at pp. 578-9:

"At the end of this part of the argument, it is clear to me that in principle and in appropriate proceedings, the court may hold to be unlawful part of an administrative order or decision having effect in public law while holding valid the remainder of the order or decision. The qualifications which limit the application of this principle are as follows. (1) The words "administrative order or decision" include at least delegated legislation and statutory orders: see Dunkley v. Evans [1981] 1 W.L.R. 1522 and Olsen v. City of Camberwell [1926] V.L.R. 58; orders under delegated statutory powers: see Blackpool Corporation v. Locker [1948] 1 K.B. 349; byelaws: see Strickland v. Hayes

[1896] 1 QB 290

; resolutions of local authorities: see Thames Water Authority v. Elmbridge Borough Council [1983] Q.B. 570; planning consents: see Hall & Co. Ltd. v. Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240 and Kingsway Investments (Kent) Ltd. v. Kent County Council [1971] A.C. 72; and statutory demands for information: see Dyson v. Attorney-General

[1912] 1 Ch 158

and Potato Marketing Board v. Merricks [1958] 2 Q.B. 316. I am satisfied that the direction presently under consideration would be such a decision.

"(2) The striking down or striking out of a part only of such an order or decision cannot be done if the order or decision is 'one and indivisible' (Dyson's case [1912] 1 Ch. 158); if the 'excess is so intertwined with the valid as to be separable from it only with difficulty' (Royal Bank of Canada v. Inland Revenue Commissioners [1972] Ch. 665); if the 'good part is so inextricably mixed up with the bad that the whole must go' (Kingsway Investments [1971] A.C. 72); if the 'parts are so interwoven that the rest should fall with the admittedly invalid part' (Olsen's case [1926] V.L.R. 58); if 'the invalid part is inextricably interconnected with the valid' (Halsbury's Laws of England, 4th ed., vol. 1 (1973), para. 26);or unless 'the good and bad parts are clearly identifiable and the bad part can be separated from the good and rejected without affecting the validity of the remaining part' (per Stephenson L.J. in Thames Water Authority v. Elmbridge Borough Council [1983] Q.B. 570, 585).

"(3) The court may not rewrite such an order or decision. This is not open to argument; but, for illustration only, Lord Reid, in Kingsway Investments (Kent) Ltd, v. Kent County Council [1971] A.C. 72, 90, said:

'It is a general rule that the court will not remake a contract and to strike out one term and leave the rest in operation is remaking the contract.'

In Dunkley v. Evans [1981] 1 W.L.R. 1522, 1525,

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Ormrod L.J. said:

'the court will not and cannot rewrite contracts, and so confines itself to deleting part of the text when it is able to do so.'

" (4) Proceedings in which the principle has been applied in public law, so far as the cases cited to me are concerned, have included appeals from decisions of the High Court (Dyson's case [1912] 1 Ch 158 and, after special case stated by an arbitrator, the Thames Water Authority case [1983] Q.B. 570), an appeal from the county court (Blackpool Corporation v. Locker [1948] 1 K.B. 349), cases stated on appeal from justices or quarter sessions (Strickland v. Hayes [1896] 1 QB 290 and Dunkley v. Evans [1981] 1 W.L.R. 1522), on special case stated by a disciplinary board (Potato Marketing Board v. Merricks [1958] 2 Q.B. 316) and applications for declaratory relief (Kingsway Investments [1971] A.C. 72 and Hall & Co. Ltd, v. Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240, both relating to conditions imposed on planning consents)."

My noble and learned friend, Lord Bridge, has in the course of his speech noted some of the cases which might be taken to suggest that the traditional test of textual severability does not strictly apply and it is really unnecessary for me to add to what he has so percipiently said about them. If Dunkley v. Evans [1981] 1 W.L.R. 1522 is correct (and it certainly produces a very sensible result), it may, by reference to an imaginary map, based on the coordinates given in the impugned Order, be justified on "blue pencil" principles. Thames Water Authority v. Elmbridge Borough Council [1983] Q.B. 570 was concerned with the Planning Acts and with a local authority's exercise of its statutory powers. The judgment of Stephenson L.J. is worthy of careful study. I quote the opening paragraphs, at p. 585:

"For some centuries our courts have been applying to the benevolent interpretation of written instruments of all kinds, including statutes, the common sense principle preserved in Latin as 'ut res magis valeat quam pereat': Coke upon Littleton 36a; Broom's Legal Maxims, 10th ed. (1939), p. 361. By applying that principle they have been able, not only to make sense of near nonsense but also to give effect to what is good and enforce what is valid, while refusing to enforce what is bad and giving no effect to what is invalid. This latter exercise can be carried out, and can, of course, be carried out only, where the good and bad parts are clearly identifiable and the bad part can be separated from the good and rejected without affecting the validity of the remaining part. But this ought to be done whenever the good and bad parts can be so identified and separated and what remains is clearly valid in the sense that there is nothing inherently unenforceable about it and all the surrounding circumstances indicate that common sense and the intention of the maker of any document which includes both good and bad parts would give effect to it."

The really important case, however, which my noble and learned friend has mentioned, and to which I shall presently return, is Daymond v. South West Water Authority [1976] A.C. 609 where, as he puts it, "severability was not in issue, but where it appears

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to have been taken for granted without question that severance was possible."

Other cases are noted in Wade, Administrative Law, 6th ed. at p. 875 (1988), but they do not cast a great deal of light on the problem which has concerned me. Transport Ministry v. Alexander [1978] 1 N.Z.L.R. 306 provides a straightforward example of a law which satisfied both severability tests: per Cooke J., at p. 311. Cassidy v. Minister for Industry and Commerce [1978] I.R. 297 gives support to the ability to disregard the unreasonable part of a minister's order, even though the blue pencil test could not be applied. Delivering the principal judgment in the Supreme Court, Henchy J. said, at pp. 312-313:

"My adjudication is that the impugned orders are not invalid, for being ultra vires, in so far as they apply to public bars but that their extended application to lounge bars is not within the scope of the delegated legislative functions. If the orders had been composed in such a way that the provisions applicable to public bars could be severed from the rest, I would rule that such provisions should be severed and declared valid as being intra vires. But the orders do not lend themselves to verbal severance: they simply fix maximum prices without reference to whether they are charged in lounge bars or public bars. However, there is no reason why the orders should not be severed in the range of their application, so that they may be preserved and implemented in so far as they are intra vires, and ruled inoperable only in so far as their application would run into the area of ultra vires: see per Lord Halsbury L.C. in Macleod v. Attorney-General for New South Wales [1891] A.C. 455, per Lord MacDermott L.C.J. at p. 118 of the report of Ulster Transport Authority v. James Brown & Sons Ltd. [1953] N.I. 79 and per Viscount Simonds and Lord Radcliffe at pp. 520 and 525 of the report of Belfast Corporation v. O. D. Cars Ltd. [1960] A.C. 490. By the operation of what Lord MacDermott L.C.J. called 'horizontal severance' in the Ulster Transport case, the layer of application to lounge bars may be detached and ruled inoperable, and the underlying range of application to public bars may be given the effectiveness which its validity warrants. Therefore, I would affirm the ruling in the High Court that the impugned orders are not invalid for being ultra vires, with the qualification that they must be construed as having no application to lounge bars. If the minister wishes to fix maximum prices for drinks sold in lounge bars, he may do so by exercising the powers vested in him by the Prices Acts but, to be valid, any maximum- prices orders so made should not be flawed by unfair and unjustifiable discrimination."

Neither Macleod v. Attorney-General for New South Wales nor Belfast Corporation v. O. D. Cars Ltd, has anything to say about textual severability and any conclusion to be drawn from Ulster Transport Authority v. James Brown & Sons Ltd. on that subject must be qualified by reference to section 5(1) of the Government of Ireland Act 1920, which inter alia provides:

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"Any law made in contravention of the restrictions imposed by this subsection shall, so far as it contravenes those restrictions, be void" (emphasis added).

Burke v. Minister for Labour [1979] I.R. 354 (which contains no reference to Cassidy's case) does not, in my opinion, take the argument further.

My Lords,

the accepted view in the common law jurisdictions has been that, when construing legislation the validity of which is under challenge, the first duty of the court, in obedience to the principle that a law should, whenever possible, be interpreted ut res magis valeat quam pereat, is to see whether the impugned provision can reasonably bear a construction which renders it valid. Failing that, the court's duty, subject always to any relevant statutory provision such as the Australian section 15A, is to decide whether the whole of the challenged legislation or only part of it must be held invalid and ineffective. That problem has traditionally been resolved by applying first the textual, and then the substantial, severability test. If the legislation failed the first test, it was condemned in its entirety. If it passed that test, it had to face the next hurdle. This approach, in my opinion, has a great deal in its favour.

The basic principle is that an ultra vires enactment, such as a byelaw, is void ab initio and of no effect. The so-called blue pencil test is a concession to practicality and ought not to be extended or weakened. In its traditional form it is acceptable because, once the offending words are ignored, no word or phrase needs to be given a meaning different from, or more restrictive than, its original meaning. Therefore the court has not legislated; it merely continues to apply that part of the existing legislation which is good.

It may be argued that a policy split has developed and that it is time to show common sense and bring our thinking up to date by a further application of the ut res magis valeat quam pereat principle. I am, however, chary of yielding to this temptation for a number of reasons.

The blue pencil test already represents a concession to the erring law-maker, the justification for which I have tried to explain.

When applying the blue pencil test (which actually means ignoring the offending words), the court cannot cause the text of the instrument to be altered. It will remain as the ostensible law of the land unless and until it is replaced by something else. It is too late now to think of abandoning the blue pencil method, which has much to commend it, but the disadvantage inherent in the method ought not to be enlarged.

It is up to the law-maker to keep within his powers and it is in the public interest that he should take care, in order that the public may be able to rely on the written word as representing the law. Further enlargement of the court's power to validate what is

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partially invalid will encourage the law-maker to enact what he pleases, or at least to enact what may or may not be valid, without having to fear any worse result than merely being brought back within bounds.

4 . Dunkley v. Evans [1981] 1 W.L.R. 1522 and Thames Water Authority v. Elmbridge Borough Council [1983] Q.B. 570 are very special cases. I recall in that regard what McNeill J . said in Reg, v. Secretary of State for Transport, Ex parte Greater London Council [1986] Q.B. 556, 582 D.

5. To liberalise the test would, in my view, be anarchic, not progressive. It would tend in the wrong direction, unlike some developments in the law of negligence, which have promoted justice for physically or economically injured persons, or the sounder aspects of judicial review, which have promoted freedom and have afforded protection from power.

6. The current of decisions and relevant authority has flowed in favour of the traditional doctrine.

This last observation brings me back to Daymond v. South West Water Authority [1976] A.C. 609, the case in which, as my noble and learned friend has said, it appears to have been taken for granted that severance was possible, and the question is, what significance should be attached to that fact when reviewing the doctrine of textual severability?

One cannot gainsay the authority of the appellate committee or that of the individual members of your Lordships' House of whom the committee was composed. Any indication, even if given obiter, that their Lordships, having considered the point, would have held that the Water Authorities (Collection of Charges) Order 1974 was valid and effective against occupiers of property who benefited directly from the water authority's services, while inoperative against the occupiers who did not so benefit, could significantly erode the received doctrine of textual severability, since the blue pencil test could not have been used. But one must consider the way in which the case proceeded in your Lordships' House and also at first instance.

The remedy which the plaintiff sought was a declaration that the Plymouth City Council were not empowered to demand from him £4.89 or any sum on behalf of the South West Water Authority by way of a charge for sewerage and sewage disposal services. He contended that the water authority had power under section 30 of the Act of 1973 only to demand charges for services performed, facilities provided or rights made available and that, if the Order of 1974 purported to confer power to demand other charges, it was to that extent ultra vires. The words which I have emphasised set the stage for the argument and the decision. Phillips J. made the declaration sought. On appeal direct to this House under section 12(1) of the Administration of Justice Act 1969 it was held, dismissing the appeal, Lord Wilberforce and Lord Diplock dissenting, that the plaintiff was entitled to the declaration made. The sole issue at each stage was whether

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section 30 empowered the water authority to charge occupiers of property who did not receive the benefit of the authority's services directly. No case was cited, and no argument was advanced, on the question whether the invalidity of the authority's demand against such occupiers as the plaintiff would nullify the Order of 1974 in relation to occupiers who were receiving the services, and both the initial judgment and their Lordships' speeches were entirely devoted to the complicated and strenuously contested issue concerning the scope of section 30. The minority took the view that section 30 authorised the proposed demand, and they had nothing to consider except the effect of the section on the plaintiff. And the majority, who reached the opposite conclusion, were concerned with the same point. The textual seyerability doctrine would have been of no help to either side.

It would therefore not be surprising if, having regard to the remedy sought and granted, the residual effect of the Order of 1974 on those who admittedly were liable for the charge was never mentioned.

I am therefore very reluctant to treat the case as an authority which by implication contradicts the established doctrine of textual severability for the purposes of the present appeal. Accordingly, I would allow this appeal on two grounds, (1) that there is no valid part of byelaw 2(b) which can be severed from the invalid part and stand by itself and (2) that the byelaw would not in any event survive the test of substantial severability.

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Cited in 27 later judgments

and 18 more of the most senior