Director of Public Prosecutions v. Hutchinson and Smith, (1990) 113 N.R. 12 (HL)

• Case Date: July 12, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 113 N.R. 12 (HL)

Dir. of Public Prosecutions v. Hutchinson (1990), 113 N.R. 12 (HL)

MLB headnote and full text

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)

Indexed As: Director of Public Prosecutions v. Hutchinson and Smith

House of Lords

London, England

Lord Bridge of Harwich, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Lowry

July 12, 1990.

Summary:

Section 14(1) of the Military Lands Act 1892 authorized bylaws to prohibit intrusion into certain lands provided the bylaws did not prejudice any rights of common. The Royal Air Force Greenham Common Byelaws 1985 applied to all persons. The bylaws prejudicially affected the rights of common of 62 people. The accused were charged under s. 2(b) of the bylaws with being in a protected area (an airbase) without permission. Neither of the accused was among the 62 entitled to exercise the rights of common. Nevertheless, the accused submitted that the bylaws were ultra vires, because they exceeded the enabling legislation by attempting to restrict those with the rights of common. The Crown claimed that the doctrine of severability should be applied and the legislation be allowed to stand, in that its application would be restricted to those without rights of common. The accused were convicted by the Newbury justices. The accused appealed to the Crown Court at Reading.

In a decision not reported in this series of reports, the Crown Court at Reading quashed the convictions. The court also stated a case for the opinion of the High Court.

A Divisional Court of the Queen's Bench Division of the High Court, in a decision not reported in this series of reports, allowed the Crown's appeal and restored the convictions. The accused appealed.

The House of Lords allowed the appeal and restored the order of the Crown Court at Reading, which quashed the convictions.

Statutes - Topic 4548

Operation and effect - Validity - Severability - The accused were charged with entering a protected area contrary to s. 2(b) of the R.A.F. Greenham Common Byelaws 1985 - Under the enabling legislation, the bylaws could not prejudicially affect any rights of common - The accused submitted that the bylaws were ultra vires because they affected the rights of 62 commoners - The Crown claimed that the substantial severability test should be applied and that the bylaw be allowed to operate against those with no rights to the common - The House of Lords ruled that the bylaws were ultra vires and could not be cured by severance - See paragraphs 20-25.

Statutes - Topic 4548

Operation and effect - Validity - Severability or blue pencil test - The House of Lords reviewed the traditional severability test as developed at common law and employed to save the intra vires portion of a legislative instrument by severing the ultra vires portion - See paragraphs 7-12 - This involved a double test, "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 lawmakers 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 the severance is essentially unchanged in its legislative purpose, operation and effect." - See paragraph 7.

Statutes - Topic 4548

Operation and effect - Validity - Severability - Substantially severable - Requirement of - The House of Lords considered the modern application of the severability or "blue pencil" test as employed to save portions of otherwise ultra vires legislative instruments - Their Lordships observed (Lord Lowry dissenting, para. 36) that while the textual severability test had the great merit of simplicity and certainty, it should not be applied in cases where it would have an unreasonable consequence - However, their Lordships reiterated the requirement for applying the second component, the substantial severability test, in all cases - See paragraphs 17.

Cases Noticed:

R. v. Company of Fishermen of Faversham (1799), 8 Term. 352, refd to. [para. 8].

R. v. Lundie (1862), 8 Jur. N.S. 640, refd to. [para. 8].

Strickland v. Hayes, [1896] 1 Q.B. 290, refd to. [para. 9].

The Employers' Liability Cases, Re (1908), 207 U.S. 463, refd to. [para. 10].

R. v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co. (1910), 11 C.L.R. 1, refd to. [para. 11].

Owners of S.S. Kalibia v. Wilson (1910), 11 C.L.R. 689, refd to. [para. 11].

Dunkley v. Evans, [1981] 1 W.L.R. 1522, appld. [para. 13].

Olsen v. City of Camberwell, [1926] V.L.R. 58, refd to. [para. 13].

Thames Water Authority v. Elmbridge Borough Council, [1983] Q.B. 570, refd to. [para. 15].

Daymond v. South-West Water Authority, [1976] A.C. 609, folld. [para. 16].

R. v. Secretary of State for Transport, Ex parte Greater London Council, [1986] Q.B. 556, refd to. [para. 30].

Transport Ministry v. Alexander, [1978] 1 N.Z.L.R. 306, refd to. [para. 33].

Cassidy v. Minister for Industry and Commerce, [1978] I.R. 297, consd. [para. 33].

Burke v. Minister for Labour, [1979] I.R. 354, refd to. [para. 35].

Statutes Noticed:

Acts Interpretation Act (1901-1973)(Aust.), sect. 15-A [paras. 12, 27]; sect. 46 [para. 28].

Commons Registration Act 1965, generally [para. 3].

Government of Ireland Act 1920, sect. 5(1) [para. 34].

Local Government Act 1933 (Eng.), sect. 163 [para. 15].

Military Lands Act 1892 (Eng.), sect. 14(1) [paras. 3, 19].

R.A.F. Greenham Common Byelaws 1985, S.I. 1985 No. 485, sect. 2 [para. 18]; sect. 2(b) [paras. 1, 18].

Sea Fish (Conservation) Act 1967 (Eng.), generally [para. 13].

Water Authorities (Collection of Charges) Order 1974 (S.I. 1974 No. 448), sect. 7(2) [paras. 16, 39]; sect. 10(1) [para. 16].

West Coast Herring (Prohibition of Fishing) Order 1978 (S.I. 1978 No. 930), generally [para. 13].

Authors and Works Noticed:

Wade, Administrative Law (6th Ed. 1988), p. 875 [para. 33].

Counsel:

Beverley Lang and Heather Williams, for the appellant Smith;

The appellant Jean Hutchinson, appeared in person;

John Laws and David Pannick, for the Director of Public Prosecutions.

This appeal was heard by Lord Bridge of Harwich, Lord Griffiths, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Lowry, of the House of Lords, London, England. The decision of the House of Lords was delivered on July 12, 1990, when the following speeches were delivered:

Lord Bridge of Harwich - see paragraphs 1 to 22;

Lord Griffiths - see paragraph 22;

Lord Goff of Chieveley - see paragraph 23;

Lord Oliver of Aylmerton - see paragraph 24;

Lord Lowry (concurring in the appeal but dissenting in part on the reasons) - see paragraphs 25 to 42.