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:
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
that it purports to have retrospective
effect where the parent statute confers no express authority so
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
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.
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.