Joint Committee on Statutory Instruments Seventh Report




  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

  2. A memorandum by the Office for National Statistics in connection with the Registration of Births, Deaths and Marriages (Fees) Order 1998 (S.I. 1998/3171) is printed in Appendix I to this Report.


  3. The Committee draws the special attention of both Houses to these Rules on the ground that they make an unexpected use of a power.

  4. These Rules are made under section 18(1A) of the Supreme Court Act 1981 (as amended), which provides that "in any such class of cases as may be prescribed by Rules of the Supreme Court, an appeal shall lie to the Court of Appeal only with the leave of the Court of Appeal [or lower court]". Rule 3(1) exercises this power of prescription by substituting for the previous rule 1B (of Order 59, S.I. 1993/2133) a provision in the form: "every appeal shall be subject to leave except an appeal [in three specified cases]". The Committee asked the Lord Chancellor's Department to explain, given the terms of section 18(1A) of the 1981 Act, what authorises the making of the requirement for leave to appeal general, with specified exceptions. The Department reply in the memorandum printed in Appendix II that "every appeal except (a), (b) and (c)" is a class of case and therefore falls within section 18(1A). In the Committee's view, however, this argument ignores the context of the power in section 18(1A) of the 1981 Act and what it is that the power contemplates will be prescribed. Sections 15 and 16 read with 18 in effect confer a general right of appeal with restrictions. The power now being exercised was inserted instead of the restriction constituted by the requirement for leave in specified cases formerly in section 18(1)(e), (f) and (h). That power contemplates the like specification of exceptions where leave is required, as was done in SI 1993/2133. The exercise of the power in the form it takes in these Rules comes near, in the Committee's view, to overturning the premise behind sections 15, 16 and 18 and is such an exercise as would not have been expected by Parliament in amending section 18 as it did. The Committee therefore reports this instrument on the ground that the new rule 1B in Order 59 (inserted by rule 3(1)) is an unexpected use of a power.


  5. The Committee draws the special attention of both Houses to this Order on the ground that it requires the elucidation provided.

  6. Article 5(d) authorises the Education Action Forum to appoint either one or two additional members from persons who are members of Southwark Council. The Committee asked the Department for Education and Employment whether it is intended that such a member should cease to hold office as a member of the Forum if he ceases to be a member of the Council; and, if so, to explain why no express provision is made to that effect as it is in other similar Orders (for example, article 5(2) of S.I. No's 1998/3061, 3062 and 3066). In the memorandum printed in Appendix III the Department confirm that it is intended that a member appointed under article 5(d) will cease to be a member of the Forum if he ceases to be a member of the Council. They consider that this is implicit in article 5(d) which permits people who are members of the Council to be appointed to the Forum, but accept that it would have been preferable to make this point explicitly as was done in the instruments referred to by the Committee. The Committee reports article 5(d) as requiring the elucidation provided by the Department.

1  The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back

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