DPP v Hutchinson [1988] UKHL 11
[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 - 19 - 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. - 20 -
Cited in 27 later judgments
and 18 more of the most senior