Joint Committee on Statutory Instruments First Special Report


Departmental Returns, 2000-2002


1. The role of the Joint Committee on Statutory Instruments is to examine almost every general (i.e. not local) statutory instrument. 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.

2. The most common reasons for reporting instruments are set out in the tables below. They include defects in the drafting of an instrument; doubts as to the delegated powers or vires it purports to exercise; evidence of an unusual or unexpected use of those powers; a lack of clarity in its drafting sufficient to require elucidation; or a failure to provide an explanatory note which is sufficiently complete or clear to explain the instrument. Of the other defaults which are reported, a common one is a failure to observe the 21-day rule (which provides that an instrument subject to Parliamentary procedure shall in normal circumstances not come into force until 21 days after it has been laid before Parliament), or to provide sufficient justification for its breach.

3. In 2001, 2002 and 2003 Departments were asked to prepare returns setting out, in tabular form, the action taken on instruments which the Committee had drawn to the special attention of both Houses in the previous calendar year. They were also asked to provide updating information on the action outstanding on instruments reported in 1999 and earlier. An extract from the instructions supplied to Departments in 2003 is printed at Annex 1.

4. The returns for 2000 and 2001 were not published as annual volumes. Instead, the information provided for all three years has been collated into tables covering departmental returns for 2000, 2001 and 2002, together with information on action outstanding on instruments reported in previous years. These amalgamated tables are published in the Appendix. Two tables have been prepared in respect of each Department: table A gives details of action outstanding on instruments reported in 2001 and earlier, while table B gives details of action taken on instruments reported in 2000, 2001 and 2002. Where action on an instrument reported in 2000 or 2001 remains outstanding, the entry for that instrument appears in Table A and table B.

5. The information in the appendices was submitted to Departments for checking before publication in this form. We are most grateful to Departments for their cooperation in providing the initial information and for their assistance in checking the accuracy of the appendices.

6. Four sets of tables have been prepared, which provide a digest of the information received from Departments. These are included at Annex 2.

—  Tables 1A, 1B and 1C shows the number of points reported by the Committee in 2000, 2001 and 2002 on different grounds, and the number of points which had not been dealt with by Departments by the end of that year and by the end of 2002. In addition, the number of cases where Departments disagree with the Committee is shown;

—  Table 2 shows the number of points reported on in 1999 and previous years which were outstanding at the end of 1999, and the number of these which were still outstanding at the end of 2002;

—  Tables 3A, 3B and 3C provides, for instruments reported in 2000, 2001 and 2002, 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 1999 which were outstanding at the end of 1999 and the number of these which were still outstanding at the end of 2002.

7. The machinery of government changes in 2001 and 2002 have in some cases led to a transfer of Departmental responsibility for secondary legislation. Such cases are indicated in the tables.

8. 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. It should also be noted that more than one point may be taken on an instrument: several points may be taken on one ground, and points may be taken on a number of grounds.


 
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Prepared 17 March 2004