The Weekly Law Reports, December 11, 1981

J 522
[1981]

[QUEEN'S BENCH D I V I S I O N ] A

* DUNKLEY v. E V A N S AND A N O T H E R

1981 March 24; Ormrod L.J. and Webster J.

April 15
Statutory Instrument—Validity—Severability—Power under statute B
to make orders prohibiting fishing in designated areas—Order
defining area to include parts of sea over which no ministerial
power to make order—Whether invalid part of defined area
severable — Validity of order — Sea Fish (Conservation) Act
1967 (c. 84), ss. 5 (2), 23 (1) (as amended by Fishery Limits
Act 1976 (c. 86), s. 9 (1), Sch. 2, para. 16)—West Coast Her-
ring (Prohibition of Fishing) Order 1978 (S.I. 1978 No. 930),
art. 2, Sch. C
The defendants fished for herring in a prohibited area
within British fishing limits, contrary to the West Coast Herring
(Prohibition of Fishing) Order 1978. On the hearing of informa-
tions preferred against them, the defendants admitted that they
had fished in an area over which ministers had power to make
an order under section 5 (2) of the Sea Fish (Conservation)
Act 1967 1 but contended that the Order of 1978 was invalid D
because the prohibited area included Northern Irish waters
over which the ministerial power to make orders was excluded
by section 23 (1) of the Act. The justices accepted the sub-
mission and dismissed the informations.
On appeal by the prosecutor: —
Held, allowing the appeal, that, although the text of the
Order of 1978 did not lend itself to judicial deletion of words
that rendered part of the Order ultra vires, the omission of
the invalid parts would hardly affect the remainder and, since
the legislature would have enacted the valid provisions inde-
pendently of the invalid parts, the Order was valid except in
so far as it affected the area of sea reserved by section 23 (1)
of the Act; and that, accordingly, the defendants had com-
mitted offences in fishing for herring in an area where such
fishing was validly prohibited by the Order (post, pp. 1525A-B,
F-G, H—1526A).
Dictum of Cussen J. in Olsen v. City of Camberwell [1926]
V.L.R. 58, 68 applied.

The following cases are referred to in the judgment:

Agricultural, Horticultural and Forestry Industry Training Board v.
Aylesbury Mushrooms Ltd. [1972] 1 W.L.R. 190; [1972] 1 All E.R.
280. G
Carltona Ltd. v. Works Commissioners [1943] 2 All E.R. 560, C.A.
Hotel and Catering Industry Training Board v. Automobile Proprietary
Ltd. [1969] 1 W.L.R. 697; [1969] 2 All E.R. 582, H.L.(E.).
Olsen v. City of Camberwell [1926] V.L.R. 58.
Point of Ayr Collieries Ltd. v. Lloyd-George [1943] 2 All E.R. 546, C.A.
Potato Marketing Board v. Merricks [1958] 2 Q.B. 316; [1958] 3 W.L.R.
135; [1958] 2 All E.R. 538. H
Strickland v. Hayes [1896] 1 Q.B. 290, D.C.
1
Sea Fish (Conservation) Act 1967, s. 5, as amended: "(2) The power [to
prohibit fishing by order] shall, in relation to the imposition of any prohibition . . .
(b) on fishing for [herring] in any waters adjacent to Great Britain and within
[British fishery limits], be exercisable wherever it appears to the ministers to be
necessary or expedient . . . "
S. 23, as amended: " (1) Section 5 (2) of this Act shall not apply to the imposi-
tion of any prohibition or restriction on fishing within waters within British fishery
limits which are adjacent to Northern Ireland and [within certain defined limits]...."
 The Weekly Law Reports, December 11, 1981
1523
1 W.L.R. Dunkley v. Evans (D.C.)
^ The following additional case was cited in argument:
Hoffmann-La Roche (F.) & Co. A.G. v. Secretary of State for Trade and
Industry [1975] A.C. 295; [1974] 3 W.L.R. 104; [1974] 2 All E.R.
1128,H.L.(E.).
CASE STATED by Humberside justices sitting at Great Grimsby.
On November, 12, 1979, informations were preferred by the prosecutor,
B David John Dunkley, against the defendants, Raymond Evans and Sandy
Fishing Co. Ltd., that they did, on or about October 14, 1979, within
British fishery limits, and within the area specified in the Schedule to the
West Coast Herring (Prohibition of Fishing) Order 1978 as being an area
in which such fishing is prohibited, being the master/owners of the
British fishing vessel Grimsby Lady, fish for herring contrary to article 2
Q of the Order, and section 5 (1) of the Sea Fish (Conservation) Act 1967.
The justices heard the informations on December 16, 1980, and found
the following facts which had been formally admitted on behalf of the
defendants. Raymond Evans was, from October 3, 1979, the master of
the British fishing vessel Grimsby Lady. Sandy Fishing Co. Ltd. was,'at
all material times, the owner of the vessel. On or about October 14, 1979,
Raymond Evans did fish for herring from the vessel within British fishery
D
limits at position 56°30' north, 10°00' west.
It was contended by the prosecutor that, although the Order was
invalid as to part of the area included in the Schedule to the Order,
i.e. an area adjacent to Northern Ireland, any offence committed in the
remainder of the area should result in a conviction. The Northern Irish
waters were clearly defined and severable. The Grimsby Lady was fishing
E in that area for which the minister had power to make the Order. The
part of the area which was invalid could be separated without altering
the character of the rest of the Order.
It was contended by the defendants that where the good law was
inextricably inseparable from the bad law in the Order whereby the Order
needed rewriting, then the Order would be invalid. The wording of the
F Schedule to the Order and section 23 (1) of the Act of 1967 needed amend-
ment, it could not be made valid by striking out words in the Schedule.
The justices were of the opinion that the area described in the
Schedule to the Order was unambiguous, but that it included Northern
Ireland waters which the minister had no power to include in the Order
and that the Order was ultra vires. The justices preferred the conten-
tion of the defendants that severance of the invalid area from the area
G described in the Schedule could not be supported by case law. The
justices accordingly dismissed the informations. •
The prosecutor appealed. The question for the opinion of the High
Court was whether the justices were right in holding that the West Coast
Herring (Prohibition of Fishing) Order 1978 was invalid.

JJ L. /. Davies Q.C. and P. G. Langdon-Davies for the prosecutor.

N. A. Phillips Q.C. and M. D. G. Cran for the defendants.

Cur. adv. vult.

April 15. ORMROD L.J. read the following judgment of the court. This
is an appeal by case stated, by the prosecutor from the dismissal on
December 16, 1980, by Humberside justices sitting at Great Grimsby, of
 The Weekly Law Reports, December 11, 1981
1524
Dunkley v. Evans (D.C.) [1981]
informations alleging that the defendants on October 14, 1979, had fished A
for herring in a prohibited area, contrary to article 2 of the West Coast
Herring (Prohibition of Fishing) Order 1978.
It was admitted by the defendants that they had been fishing for herring
at a position 56°30' north, 10°00' west, which is within the area referred
to in the Order, contrary to article 2. The defence was that this Order
was ultra vires the minister who purported to make it under the terms of
the Sea Fish (Conservation) Act 1967. The justices accepted this sub-
mission and dismissed the informations. They now ask if they were right
to do so.
The point arises in this way. Under section 5 (2) of the Sea Fish
(Conservation) Act 1967, the ministers concerned may make orders pro-
hibiting fishing within the area of the British fishery limits as defined in
the Act, as amended by section 9 (1) of and paragraph 16 of Schedule 2 C
to the Fishery Limits Act 1976.
The Order of 1978 prohibited fishing for herring within the area of
the sea defined in the Schedule, that is, the area lying within British
fishery limits and bounded by a line defined by a series of co-ordinates
set out in the Schedule. It was conceded that the defendants were fishing
for herring at a point which was within British fishery limits and within p
the area defined by the co-ordinates. However, section 23 (1) of the Act
of 1967, as amended by section 9 (1) of and paragraph 16 (7) of Sched-
ule 2 to the Fishery Limits Act 1976, provides that the minister's powers
under the Act of 1967 shall not extend over a defined area of the sea
adjacent to the coast of Northern Ireland, 40 miles long by nine miles
wide. The prosecution conceded that the minister's power to make regula-
tions did not extend over this relatively small area of the sea, notwith- E
standing that the Secretary of State for Northern Ireland was one of the
ministers who made the Order. Powers over this area were reserved to the
government of Northern Ireland. We understand that at present the power
to make prohibition orders in respect of this area of the sea is vested in
the Department of Agriculture (Northern Ireland), a statutory corporation
which can make the necessary orders itself. The Secretary of State for p
Northern Ireland has no power personally to make such orders.
The prosecutor submits that the fact that this Order is ultra vires in
so far as this area off the coast of Northern Ireland is concerned, does not
render the whole Order ultra vires. For the defence Mr. Phillips contended
that the whole Order is rendered invalid by including this area of the sea.
The offending area represents 0-8 per cent, of the area covered by the
Order. The only question, therefore, is whether it is possible to sever the "
invalid part from the valid part of the Order, or whether the whole Order
is invalidated by the inclusion of this small area.
The general principle is stated in Halsbury's Laws of England, 4th ed.,
vol. 1 (1973), para. 26:
" Unless the invalid part is inextricably interconnected with the valid,
a court is entitled to set aside or disregard the invalid part, leaving the H
rest intact."
The principle is more fully formulated in the judgment of Cussen J. sitting
in the Supreme Court of Victoria in Olsen v. City of Camberwell [1926]
V.L.R. 58, 68, where he said:
" If the enactment, with the invalid portion omitted, is so radically
or substantially different a law as to the subject-matter dealt with by
 The Weekly Law Reports, December 18, 1981
1525
1 W.L.R. Dunkley v. Evans (D.C.)
A what remains from what it would be with the omitted portions form-
ing 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."
We respectfully agree with and adopt this statement of the law. It would
B 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.
Mr. Phillips, for the defendants, submitted that the court must confine
Q the ministers " within the four corners of the powers given by the legisla-
ture," and referred us to two judgments by Lord Greene M.R. in Point of
Ayr Collieries Ltd. v. Lloyd-George [1943] 2 All E.R. 546 and Carltona
Ltd. v. Works Commissioners [1943] 2 All E.R. 560. That will be the
precise effect of eliminating the invalid portion of the Order in question.
He also submitted that the ministers did not apply their minds to the
right question. With respect, the question was the prohibition of herring
^ fishing in an area off the west coast to which they clearly applied their
minds. Someone, however, overlooked the powers of the Department of
Agriculture (Northern Ireland) and probably failed to appreciate the
niceties of the present constitutional position of the Secretary of State for
Northern Ireland.
His main point, however, was that the court could not sever the invalid
E portion of this Order from the remainder because it was not possible to
excise from the text of the Order the words which rendered part of it
invalid. This is the so-called " blue pencil test." This test has been elab-
orated mainly in connection with covenants in restraint of trade. No
doubt 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. The same
P policy has been followed in relation to bye-laws where the text permitted
(Strickland v. Hayes [1896] 1 Q.B. 290), and to a demand for a return,
part of which could be struck out from a form (Potato Marketing Board v.
Merricks [1958] 2 Q.B. 316).
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
G surgery, or textual emendation by excision. It would have been com-
petent 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
j l 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. Auto-
mobile Proprietary Ltd. [1969] 1 W.L.R. 697, and by Donaldson J. in
Agricultural, Horticultural and Forestry Industry Training Board v. Ayles-
bury Mushrooms Ltd. [1972] 1 W.L.R. 190.
Accordingly we hold that the West Coast Herring (Prohibition of
Fishing) Order 1978 is not ultra vires the ministers who made the order,
save in so far as it affects the area of the sea reserved by section 23 (1) of
VOL. 1 68
 The Weekly Law Reports, December 18, 1981
1526
Dunkley v. Evans (D.C.) [1981]
the Sea Fish (Conservation) Act 1967, as amended, and answer the question ^
put at the end of the case in the negative.
The appeal is, therefore, allowed. The case will be remitted to the
justices to convict the defendants and impose the appropriate penalty or
penalties.
Appeal allowed with costs.
Certificate that points of law of general B
public importance involved namely:
" (1) Whether where a statutory
instrument (upon the true construc-
tion of which criminal liability de-
pends) has been made partly ultra
vires, the court can construe it and _,
give effect to it in so far as it would
probably have applied had it been
made intra vires. (2) // so, in what
circumstances and upon what prin-
ciples should the court act in decid-
ing whether so to construe and give
effect to it? In particular, is the D
doctrine of severance applicable?
If so, should the court apply the
' blue pencil test' or some other,
and if so what, test? "
Leave to appeal refused.
E
Solicitors: Solicitor, Ministry of Agriculture, Fisheries and Food;
Sinclair, Roche & Temperley.
H.J.

[COURT OF APPEAL]

* PRACTICE DIRECTION
(TAPE RECORDERS)

1981 Nov. 19 Lord Lane C.J., Taylor and McCullough JJ. G

Contempt of Court — Tape recorder — Use in court — Discretion

to grant or withhold leave — Contempt of Court Act 1981
(c. 49), J. 9
County Court—Tape recorder—Use in court—Discretion to grant
or withhold leave—Contempt of Court Act 1981, s. 9
H
LORD LANE C.J. at the sitting of the court handed down the following
practice direction by the heads of divisions:
1. Section 9 of the Contempt of Court Act 1981 contains provisions
governing the unofficial use of tape recorders in court. Among other things
it provides that it is a contempt of court to use in court, or bring into
court for use, any tape recorder or other instrument for recording sound,
except with the leave of the court; and it is also a contempt of court to