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 1999

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 1998. We decided to repeat the exercise this year in respect of instruments reported by the Committee in 1999. We also requested information from Departments on the action taken in respect of instruments reported in 1998 on which action was outstanding in last year's return. We intend to continue this exercise on an annual basis, 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 1999 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 1998 which were outstanding at the end of 1998, and the number of these which were still outstanding at the end of 1999;

  • Table 3 provides, for instruments reported in 1999, 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 1998 which were outstanding at the end of 1998 and the number of these which were still outstanding at the end of 1999;

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 1999, and those instruments considered but not reported but in respect of which memoranda were published.

Table 1: Analysis of returns for instruments reported in 1999

Grounds for reporting
Points reported on in 1999
Points outstandingat the end of 1999 (points in addition on which departments disagree with the Committee in brackets)
Defective drafting
75
57(5)
Dubious vires
3
0(2)
Elucidation required
9
1
Unusual or unexpected use of powers
8
2(3)
Failure to comply with proper drafting practice
6
0
Incomplete explanatory note
2
0
Other
4
0
TOTAL
107
60 (10)


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  Department of Trade and Industry
Departments of Health and Social Security  HM Treasury
Home Office

Table 2: Analysis of returns for outstanding points on instruments reported in 1998

Grounds for reporting
Points outstanding at the end of 1998
Points still outstanding at the end of 1999
Defective drafting
89
78
Dubious vires
3
2
Elucidation required
5
3
Failure to comply with proper drafting practice
1
1
Incomplete explanatory note
0
0
Unusual or unexpected use of powers
3
2
Other
2
0
TOTAL
103
86

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  Department of Trade and Industry
Foreign and Commonwealth Office  HM Treasury
Departments of Health and Social Security  
Home Office

Table 3: Analysis of returns for instruments reported in 1999 by department

Department
Points reported on in 1999
Points outstandingat the end of 1999 (number of points in addition on which departments disagree with the Committee in brackets)
Ministry of Agriculture, Fisheries and Food
9
8
Ministry of Defence
1
0
Department for Education and Employment
12
8
Department of the Environment, Transport and the Regions
46
38
Foreign and Commonwealth Office
2
2
Departments of Health and Social Security
11
3
Home Office
9
2
Inland Revenue
2
0
Lord Chancellor's Department
6
3
Privy Council Office
1
1
Department of Trade and Industry
8
5
TOTAL
107
70


Table 4: Analysis by department of returns for outstanding points on instruments reported in 1998

Department
Points outstanding at the end of 1998
Points still outstanding at the end of 1999
Ministry of Agriculture, Fisheries and Food
10
10
Ministry of Defence
1
1
Department for Education and Employment
2
1
Department of the Environment, Transport and the Regions
36
30
Foreign and Commonwealth Office
1
1
Departments of Health and Social Security
2
2
Home Office
15
15
Office of National Statistics
1
0
Northern Ireland Office
20
19
Privy Council Office
2
2
Department of Trade and Industry
12
4
HM Treasury
1
1
TOTAL
103
86




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


 
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