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.
2) 1998 (S.I. 1998/3049)
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
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
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
1998 (S.I. 1998/3057)
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