Director of Public Prosecutions v Hutchinson (R v Secretary of State for Defence, Ex parte Hayman, R v Secretary of State for Defence, Ex parte Parker)

Delegated legislation whose text exceeds the enabling power is not necessarily void in every application. Severability has textual and substantial aspects. Textual severability asks whether invalid words can be removed while leaving grammatical and coherent text. Substantial severability asks whether the remaining law is essentially unchanged in purpose, operation and effect.

Textual severance is not an absolute prerequisite. Where modification is required, a court may preserve only an application that makes no substantial change to the legislation. It must assess the instrument objectively from its text and factual setting, without speculating about what the law-maker might have enacted. A byelaw cannot be preserved where the necessary exemption would produce legislation of a fundamentally different character.

The conjoined appeals concerned convictions of two protestors under the R.A.F. Greenham Common Byelaws 1985 for entering the protected area at Greenham Common without authority. The byelaws were made under section 14(1) of the Military Lands Act 1892, which prohibited byelaws prejudicially affecting rights of common. Neither appellant possessed such rights.

The Reading Crown Court quashed the convictions because byelaw 2(b) exceeded the enabling power. The Divisional Court, reported at [1989] Q.B. 583, restored them. It held that the byelaw could operate against everyone except commoners by reading in the necessary exemption.

On the conjoined appeals in Director of Public Prosecutions v Hutchinson and Director of Public Prosecutions v Smith, the central issue was whether facially overbroad delegated legislation could be severed in its application where no verbal excision was possible.

1. The appeals were allowed unanimously. The Divisional Court's order was set aside and the Reading Crown Court orders quashing the convictions were restored.

2. Per Lord Bridge of Harwich, whose speech Lord Griffiths, Lord Goff of Chieveley and Lord Oliver of Aylmerton adopted, a court reviewing legislation made under limited powers must determine whether the law-maker validly exercised those powers. Severance cannot be used to create a substantially different law in place of the invalid instrument.

3. Severability ordinarily has two aspects. Textual severability exists where invalid words can be disregarded and the remaining text remains grammatical and coherent. Substantial severability exists where the remaining legislation is essentially unchanged in purpose, operation and effect.

4. The majority rejected rigid insistence upon textual severability in every case. Where verbal excision is impossible, partial validity may still be recognised if the court is satisfied that the necessary modification changes neither the substantial purpose nor the effect of the provision. Dunkley v Evans and Daymond v South-West Water Authority illustrated circumstances in which an overbroad range of application did not alter the legislation's valid purpose.

5. The court must not speculate about what the law-maker would have enacted after appreciating the limitation upon the power. It must ask objectively whether the instrument, with its invalid application omitted, would be substantially different from the law actually made. Its purpose is inferred from the text applied to the relevant factual setting.

6. Byelaw 2(b) failed that test. Section 14(1) of the Military Lands Act 1892 prevented interference with rights of common, but the byelaws imposed an absolute access prohibition serving the security of a fenced military airbase. Reading in unrestricted access for commoners and their animals would produce byelaws of a wholly different character and incapable of serving that purpose. The invalidity could not therefore be cured by severance.

7. Lord Lowry agreed that the byelaw failed substantial severability and that the appeals must succeed. He nevertheless reserved the traditional view that legislation must first pass textual severability. On that alternative reasoning, byelaw 2(b) was also wholly invalid because no valid textual part could stand independently.

1. House of Lords: In the conjoined appeals reported at [1990] 2 AC 783, the appeals were allowed unanimously. The Divisional Court's order was set aside, the Reading Crown Court orders were restored, and the causes were remitted to the Queen's Bench Division.
2. Divisional Court of the Queen's Bench Division: The Crown's appeal was allowed and the convictions were restored: [1989] Q.B. 583.
3. Reading Crown Court: The appellants' convictions were quashed because byelaw 2(b) was ultra vires.
4. Newbury justices: Each appellant was convicted of entering the protected area without authority, contrary to byelaw 2(b) of the R.A.F. Greenham Common Byelaws 1985.