Select Committee on Liaison First Report


APPENDIX P

JOINT COMMITTEE ON STATUTORY INSTRUMENTS

Memorandum to the Liaison Committee

from the committee appointed to join with a committee appointed by the Lords to form the Joint Committee on Statutory Instruments

Introduction

1.  The Joint Committee on Statutory Instruments is not one of those which the Liaison Committee has requested submit to it an Annual Report on its work over the past year. Nevertheless we are fully in support of the process, and would like to take the opportunity of drawing the attention of the Liaison Committee, and thereby also of other Members, to a number of matters relating to our work over the past year.

2.  The number of statutory instruments coming before Parliament - and thus the number which it falls to us to consider - continues to rise. By way of example, in Session 1999-2000, we considered some 1650 instruments; whereas in the last, short, Session, we considered around 1195, which would translate into a total of over 2000 if maintained over the course of a normal Session.

Improving the JCSI's service to both Houses

3.  JCSI has this year introduced a number of changes to its working practices, designed to improve the service which it is able to give to Members of both Houses. These have included internal changes such as the format of papers coming before the Committee and more substantive changes such as extending the matters which the Committee will consider as part of its duties under the Standing Order.

4.  Most importantly, the Committee now aims to publish its Reports much more quickly following meetings at which instruments are considered. In the past, Committee reports have sometimes been published far too late to be of any practical use to either House in its consideration of statutory instruments. In future we expect our Reports to be published not later than the end of the week following that in which we completed our consideration of the instruments concerned.

5.  Sometimes, of course, even speedier publication of Reports is necessary. Notwithstanding the situation described in para 6 below, we have in the past always endeavoured to complete our consideration of an instrument before proceedings are taken in Committee or on the floor of the House of Commons, and to ensure that, where relevant, our Reports are available to that House in time for debate. A recent example was the Railway Administration Order Rules, our Report on which we made available through the Vote Office in advance of publication, and we note proved of considerable use to Members of the Commons during the debate on a motion to annul the instrument.

6.  We intend to continue the practice of trying to ensure, wherever possible, that any Report we might make on an instrument is available to Members before it is debated. In the House of Lords, we note that the Standing Orders prevent consideration by that House of an affirmative instrument before the JCSI has reported on that instrument. As recommended by successive Procedure Committees in their Reports on Delegated Legislation,[153] and as argued by our Chairman in evidence to the most recent of these,[154] we regard it as essential that a Standing Order should be passed in the Commons making equivalent provision for this House. We are very disappointed that the Government has not yet seen fit to respond to that recommendation.

7.  Within the constraints imposed by the Standing Order, we have also been attempting to extend our scrutiny of statutory instruments into areas which may not previously have been considered by our predecessors. We have, for example, drawn the special attention of both Houses to a number of instruments which have made, in our opinion, an unexpectedly limited use of the enabling powers, because their effects have appeared to us to be odd. We have also drawn the special attention of both Houses to a set of related instruments from one department whose drafting appeared to us to fall below the standard which may reasonably be expected in legislation.[155]

8.  Additionally, we have, on one occasion, examined and reported on the consultation process which preceded the making of an instrument (the Financial Services and Markets Tribunal Rules 2001)[156], and we intend to do so again in future. We have also been paying more attention to the general comprehensibility of instruments which come before us, and, as resources permit, intend to examine further the experiences of those who have to work with such legislation, with a view to assessing whether improvements could be made which would assist the user.

Relations with Government Departments

9.  We are still regularly obliged to report instruments on the grounds of failures to comply with proper Parliamentary procedures. However, for the most part we receive promptly both copies of the instruments we scrutinise and replies to requests for memoranda, and difficulties in individual cases are resolved quickly.

10.  We have been concerned for some time about the standard of documents which are sent to us for scrutiny, and provided for Parliament. In previous years the processes for ensuring timely provision to Parliament of statutory instruments have resulted in the routine production of documents the appearance of which we believe is no longer appropriate in an age of widespread computerisation. We therefore intend shortly to suggest to Government departments arrangements which we hope will result in a much improved standard of documents presented not only to us, but to Parliament as a whole, and we look forward to seeing these arrangements put in place.

Replies by the Government to Reports from the Committee

11.  We do not receive replies to our Reports in the same manner as other select Committees. It has thus in the past proved difficult to follow up our recommendations about individual instruments. More recently, therefore, we have instituted a system of "departmental annual returns", whereby Departments report back to us the action they have taken in respect of outstanding recommendations over the course of the year.[157] This has shown that Departments do take our reports and recommendations seriously, and that many improvements have been made in the standard of secondary legislation as a result. In order to try to improve that standard still further, we intend to start taking a more proactive approach to instances where our recommendations have not been implemented; and to examine other ways in which Departments can be encouraged to make secondary legislation more accessible to those who have to use it.

Conclusion

12.  We would be pleased to receive from any Member any suggestions as to how we might further improve our service to both Houses, within the constraints imposed by the Standing Order.

January 2002


153   HC 152, 1995­96, para 20; HC 48, 1999-2000, para 53. Back

154   op cit, ev p.1 Back

155   Fifteenth Report, HC 135-xv, paras 13-15 Back

156   Tenth Report, HC 135-x, paras 21-27 Back

157   First Special Report from the Joint Committee on Statutory Instruments, Session 1999-2000, Departmental Returns, 1999, HL 103/HC 819 Back


 
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