DPP v Hutchinson
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Griffiths,Lord Goff,Lord Oliver of Aylmerton,Lord Lowry |
| Judgment Date | 12 July 1990 |
| Judgment citation (vLex) | [1990] UKHL J0712-1 |
| Date | 12 July 1990 |
| Court | House of Lords |
[1990] UKHL J0712-1
House of Lords
Lord Bridge of Harwich
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
Lord Lowry
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:
"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 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, 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...
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