Joint Committee on Statutory Instruments Eighteenth Report


2 S.I. 2003/652: defective drafting, unexpected use of power, and failure to comply with proper legislative practice

Immigration and Asylum Appeals (Procedure) Rules 2003 (S.I 2003/652)

2.1  The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in several respects, that in two respects they make an unexpected use of the enabling power, and that in another respect they fail to comply with proper legislative practice.

2.2  Rules 12(b), 23(c), 37, 38(2) and 40(1) contain a general saving for any other enactment. The Committee asked the Lord Chancellor's Department to explain what enactments are contemplated by the italicised words, and why the saving is necessary. In a memorandum (printed in Appendix 2), the Department explains that at the time these Rules were drafted it was contemplated that further Rules might be made to prescribe different procedures in certain cases. The inclusion of the savings was considered desirable to reduce the likelihood of the Rules requiring amendment if they were modified or made subject to exceptions by subsequent Rules.

2.3  In the Committee's view, this general saving for other enactments is unnecessary and should not have been included. The words italicised above may refer to primary as well as secondary legislation. In so far as "enactment" refers to the provisions of an Act of Parliament, it is unnecessary to include the italicised words because secondary legislation must give way to primary legislation, and it is misleading in suggesting that, without such express words, the legal position might be otherwise. In so far as "enactment" refers to provisions of later secondary legislation , the italicised words are also unnecessary, since earlier instruments are subject to later ones. The Committee accordingly reports rules 12(b), 23(c), 37, 38(2) and 40(1) for defective drafting.

2.4  Rule 37 allows the appellate authority (defined in rule 2 to include the adjudicator's or the Tribunal's staff) to decide the procedure to be followed in relation to any appeal or application. In response to the Committee's request for an explanation as to the scope of this provision, the Department explains that the rule refers to "the appellate authority" rather than "an adjudicator or the Tribunal" because it is contemplated that decisions about the procedure to be followed may include matters of an administrative nature (such as, administrative listing of cases) which may properly be taken by members of staff, as well as matters requiring judicial consideration by an adjudicator or the Tribunal. The Department adds that the Chief Adjudicator and the President of the Tribunal have confirmed that it is not their intention that rule 37 should lead to staff members making decisions of a judicial rather than an administrative nature. However, the Committee notes that the rule is not circumscribed so as to have this effect: in the light of the definition of "appellate authority" in rule 2, rule 37 purports to authorise staff members to make decisions which are not merely administrative in nature. In the Committee's view, Parliament is not to be taken, in the absence of specific words, to intend the rule-making powers to be exercised so as to be capable of having the effect that decisions of a judicial nature may be taken by members of staff. The Committee accordingly reports rule 37 for an unexpected use of the power conferred by the primary legislation.

2.5  Paragraph (1) of rule 38 authorises the appellate authority to give directions to the parties relating to the conduct of any appeal or application, and paragraph (5) lists specific matters on which directions may be given. These include directions for: varying any time limit, providing for a particular matter to be dealt with as a preliminary issue, a pre-hearing review to be held, witnesses to be heard, limiting the time allowed for examination and cross-examination of witnesses and the issues to be addressed at the hearing. The Department explains that it is intended that members of staff (both legally and non-legally qualified, who are included in the definition of "appellate authority" in rule 2) should be able to follow, as a matter of administrative practice, standard directions approved by the Chief Adjudicator or the President of the Tribunal in respect of appeals of a particular description; in such cases, the issuing of directions in an individual case will be an administrative act which may properly be carried out by a member of staff, subject to the supervision and directions of the Chief Adjudicator or the President. The Department also states that the Chief Adjudicator and the President of the Tribunal have confirmed that it is not their intention that a member of staff should be able to give any directions about the specific matters referred to above, except insofar as such matters are the subject of standard directions approved by the Chief Adjudicator or President; and that such directions would not include matters such as varying a time limit which would require a judicial decision by an adjudicator or the Tribunal. However, as drafted, rule 38 (in the light of the definition of "appellate authority") purports to authorise a member of staff to give directions which go beyond the administrative acts contemplated in pursuance of the standard directions approved by the Chief Adjudicator or the President of the Tribunal. In the Committee's view, Parliament cannot be taken (in the absence of specific words) to have intended the rule-making power to be exercised so as to be capable of producing such a result. The Committee accordingly reports rule 38 on the ground that it makes an unexpected use of the enabling power.

2.6  Rule 61(1) contains transitional provisions providing for the Rules to apply in certain specified cases with the modification in paragraph (2) and such other modifications as are appropriate. The Department, in its memorandum, identifies the particular modifications contemplated by the italicised words. In the Committee's view, these particular modifications should, in the interests of certainty and clarity, have been specified. The Committee accordingly reports rule 61 for failure to comply with proper legislative practice.

Instruments not reported

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.

3.  A memorandum from the Lord Chancellor's Department in connection with the Family Proceedings Fees (Amendment) Order 2003 (S.I. 2003/645), the Supreme Court Fees (Amendment) Order 2003 (S.I. 2003/646) and the County Court Fees (Amendment) Order 2003 (S.I. 2003/648) is printed in Appendix 3.

4.  A memorandum from the Lord Chancellor's Department in connection with the Public Trustee Fees (Amendment) Order 2003(S.I. 2003/690) is printed in Appendix 4.


 
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