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Cite as: [1990] 2 AC 783, [1988] UKHL 11

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/250

    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 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

    - 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 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."

    - 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 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,

    - 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 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


    - 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.

    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

    - 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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