Joint Committee on Statutory Instruments First Special Report


FIRST SPECIAL REPORT

The Joint Committee on Statutory Instruments has agreed to the following Special Report:—

  DEPARTMENTAL RETURNS 1998

1. The role of the Joint Committee on Statutory Instruments is to examine almost every general (ie not local) statutory instrument.[1] We deal with more than 1500 such instruments every year. The Joint Committee may draw the special attention of each House to an instrument on one or more of the following grounds:

  • that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payment;

  • that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a specific period;

  • that it purports to have retrospective effect where the parent statute confers no express authority so to provide;

  • that there appears to have been unjustifiable delay in the publication or in the laying of it before Parliament;

  • that there appears to have been unjustifiable delay in sending a notification under the proviso to section 4(1) of the Statutory Instruments Act 1946, where an instrument has come into operation before it has been laid before Parliament;

  • that there appears to be a doubt whether it is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made;

  • that for any special reason its form or purport calls for elucidation;

  • that its drafting appears to be defective; or

  • on any other ground which does not impinge on its merits or on the policy behind it; and to report its decision with the reasons thereof in any particular case.

The most common reasons for reporting instruments are set out in Tables 1 and 2 below (see paragraph 4).

2. Last year we asked Departments to set out the action they had taken in respect of instruments reported by the Committee in 1997. We decided to repeat the exercise this year in respect of instruments reported by the Committee in 1998. We also requested information from Departments on the action taken in respect of instruments reported in 1997 on which action was outstanding in last year's return. We intend to make this exercise an annual one, which will enable both us and government Departments to identify progress in updating delegated legislation in line with our recommendations.

3. We asked each Department to submit a return in graphic form as described in the instructions set out in the first Annex to this report. The returns from Departments are all published in the Appendix. We are grateful to Departments for their help in preparing the information in this report.

4. We have prepared four tables which provide a digest of the information received from Departments:

  • Table 1 shows the number of points reported by the Committee in 1998 on different grounds, and the number of points which had not been dealt with by Departments by the end of that year. In addition, the number of cases where Departments disagree with the Committee is shown;

  • Table 2 shows the number of points reported on in 1997 which were outstanding at the end of 1997, and the number of these which were still outstanding at the end of 1998;

  • Table 3 provides, for instruments reported in 1998, the number of instruments registered by each Department, the number of points reported and outstanding by Department, and the number of cases of disagreement;

  • Table 4 shows, by Department, the number of points reported on in 1997 which were outstanding at the end of 1997 and the number of these which were still outstanding at the end of 1998;

5. It should be noted that the number of instruments made by each Department varies considerably, as does their length and complexity, so the number of points reported cannot necessarily be taken as an indication of the Department's performance in this field. Similarly, the number of points outstanding takes no account of the fact that certain types of instrument tend to be replaced and revoked regularly, which will affect the speed at which corrections can be made.

6. The second Annex to the Report lists those instruments which were reported in 1998, and those instruments considered but not reported but in respect of which memoranda were published.

Table 1: Analysis of returns for instruments reported in 1998

Grounds for reporting

Points reported on in 1998

Points outstanding at the end of 1998 (points in addition on which departments disagree with the Committee in brackets)

Defective drafting

97

67
(7)

Dubious vires

5

3
(2)

Elucidation required

29

5
(1)

Unusual or unexpected use of powers

7

3
(1)

Failure to comply with proper drafting practice

3

1
(1)

Incomplete explanatory note

1

0
(0)

Other

12

2
(2)

TOTAL

154

81
(14)
Departments included:
Ministry of Agriculture, Fisheries and Food Lord Chancellor's Department
Department for Education and Employment Northern Ireland Office
Department of the Environment, Transport and the Regions Scottish Office
Departments of Health and Social Security Department of Trade and Industry
Home OfficeHM Treasury





Table 2: Analysis of returns for outstanding points on instruments reported in 1997

Grounds for reporting

Points outstanding at the end of 1997

Points still outstanding at the end of 1998

Defective drafting

119

93

Dubious vires

5

4

Elucidation required

1

1

Failure to comply with proper drafting practice

2

2

Incomplete explanatory note

3

2

Unusual or unexpected use of powers

4

2

Other

3

1

TOTAL

137

105
Departments included:
Ministry of Agriculture, Fisheries and Food Northern Ireland Office
Ministry of Defence Office of National Statistics
Department for Education and Employment Privy Council Office
Department of the Environment, Transport and the Regions Scottish Office
Foreign and Commonwealth Office Department of Trade and Industry
Departments of Health and Social Security HM Treasury
Home Office





Table 3: Analysis of returns for instruments reported in 1998 by department[2]

Department

No. of general instruments registered in 1998

Points reported on in 1998

Points outstanding at the end of 1998 (number of points in addition on which departments disagree with the Committee in brackets)

Ministry of Agriculture, Fisheries and Food
11520 10
(0)

Department for Education and Employment
1463 2
(0)

Department of the Environment, Transport and the Regions
25054 36
(4)

Departments of Health and Social Security
234
(175+59)
141
(0)

Home Office
115 2015
(0)

Lord Chancellor's Department
633 0
(1)

Northern Ireland Office
221 1
(0)

Scottish Office
17215 8
(0)

Department of Trade and Industry
13222 8
(9)

HM Treasury
60 20
(0)

TOTAL
1309154 81
(14)





  Table 4: Analysis by department of returns for outstanding points on instruments reported in 1997

Department

Points outstanding at the end of 1997

Points still outstanding at the end of 1998

Ministry of Agriculture, Fisheries and Food

29

23

Ministry of Defence

3

1

Department for Education and Employment

4

2

Department of the Environment, Transport and the Regions

37

29

Foreign and Commonwealth Office

3

1

Departments of Health and Social Security

11

10

Home Office

4

4

Northern Ireland Office

18

16

Office of National Statistics

1

1

Privy Council Office

2

2

Scottish Office

20

14

Department of Trade and Industry

4

1

HM Treasury

1

1

TOTAL

137

105



1   The Instruments are set out in House of Lords Standing Order 70A and House of Commons Standing Order No. 151 (A) and (B). The exceptions are Orders in Council or draft Orders in Council made or proposed to be made under paragraph 1 of Schedule 1 to the Northern Ireland Act 1974, any draft order proposed to be made under section 1 of the Deregulation and Contracting Out Act 1994, and measures under the Church of England Assembly (Powers) Act 1919 and instruments made under such measures. Back

2   Some Departments had no instruments reported in 1998, so the total in the second column of Table 3 does not represent the total number of instruments registered in 1998, which was 1565. Back


 
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Prepared 13 May 1999