DPP v Hutchinson [1988] UKHL 11 (12 July 1990)

Director of Public Prosecutions (Respondent) v. Smith
(Appellant) (On Appeal from a Divisional Court of the Queen’s

Bench Division)

Director of Public Prosecutions (Respondent) v. Hutchinson
(Appellant) (On Appeal from a Divisional Court of the Queen’s

Bench Division)

JUDGMENT

Die Jovis 12° Julii 1990

Upon Report from the Appellate Committee to whom was
referred the Causes Director of Public Prosecutions against
Smith and Director of Public Prosecutions against Hutchinson,
That the Committee had heard Counsel and had heard the Second
Appellant in person on Tuesday the 8th, Wednesday the 9th and
Thursday the 10th days of May last, upon the Petitions and
Appeals of Georgina Smith of the Women’s Peace Camp, Greenham
Common, Near Newbury, Berkshire, and Jean Hutchinson c/o 15,
East Street, St. Ives, Huntingdon, Cambridgeshire praying that
the matter of the Order set forth in the Schedule thereto,
namely an 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, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the case
of the Director of Public Prosecutions lodged in answer to the
said Appeals, which said Appeals were conjoined by Order of
the House of the 3rd day of October 1989; and due
consideration had this day of what was offered on either side
in these Causes:

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)

v.

HUTCHINSON
(APPELLANT)

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

BENCH)

DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)

v.

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:

– 1 –

“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

– 2 –

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,

– 3 –

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 Q.B. 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

– 4 

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 Jsaid, 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.”

– 5 –

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

– 6 –

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

– 7 –

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.”

– 8 –

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.

– 9 –

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:

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

      2. 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).

(c) cause or permit any vehicle, animal, aircraft or thing
to enter into or upon or to pass through or over or

– 10 –

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).

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

      2. 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.

      3. 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.

      4. 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:

– 11 –

“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.

– 12 –

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

– 13 –

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

-14 –

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 Q.B. 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,

– 15 –

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 Q.B. 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

– 16 –

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:

– 17 –

“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.

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

      2. 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.

      3. 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

– 18 –

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.

4Dunkley 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 Jsaid 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

– 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 –

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