S.I. 2008/1957: extract from the explanatory memorandum
prepared by the Ministry of Justice
Social Security and Child Support (Decisions
and Appeals) (Amendment) Regulations 2008 (S.I. 2008/1957)
3 Matters of special interest to the Joint
Committee on Statutory Instruments
3.1 The power to make the Social Security Regulations
requires the Secretary of State to make regulations with the concurrence
of the Lord Chancellor (section 6(3) read in the light of section
79 of the Social Security Act 1998). The policy responsibility
for exercising the power has been transferred to the Secretary
of State for Justice.
3.2 We are aware that the JCSI reported a statutory
instrument for doubtful vires in the Twenty-eighth Report of Session
3.3 In brief, the statutory instrument concerned
was made by the Criminal Procedure Rule Committee but an essential
part of the procedure was that the instrument had to be allowed
by the Lord Chancellor with the concurrence of the Secretary of
State. Jack Straw MP signed in his capacity as Lord Chancellor
and also provided concurrence as Secretary of State. The Committee
felt that concurrence required agreement of a separate legal person
and reported the instrument on the grounds that there appeared
to be a doubt as to whether there was vires to make it.
3.4 A significant part of the thinking of the
Committee in reaching the decision in the above report appears
to have been that the Secretary of State for Justice was not a
"corporation sole" and not a separate legal entity.
Paragraph 6.5 of the Report states, "If each separate office
that person held had been a "corporation sole" (i.e.
recognised in law as a separate legal entity), legal separation
would have been achieved; but that process had not been completed
at the time the Rules were allowed".
3.5 The Ministry of Justice considers that legal
separation for the purposes of the present statutory instruments
has been achieved regarding the offices of Lord Chancellor and
the Secretary of State for Justice.
3.6 The Secretary of State for Justice is now
a corporation sole by virtue of the Secretary of State for Justice
Order 2007 (S.I. No 2128). That office had not been designated
as a corporation sole at the time of making the amendment to the
Criminal Procedure Rules reported by the JCSI in the report referred
to in the preceding paragraphs.
3.7 The Lord Chancellor is a quasi corporation
sole. See Grant, Law of Corporation 661, which is cited with approval
in Halsbury's Laws of England, volume 9(2), paragraph 1102.
3.8 The invariable practice of the Ministry of
Justice, and the Departments preceding it, has been to treat the
Lord Chancellor's office as a separate legal entity with the characteristics
of a corporation sole.
3.9 The Lord Chancellor has entered into long-term
contracts in his capacity as Lord Chancellor. This is reflected
in Her Majesty's Courts Service Estate Management Notice 12/2006
(available on the MoJ website). This records that documents which
deal with a legal estate in land will as a general rule be in
the name of First Secretary of State(FSS) in accordance with a
general rule that the FSS holds land on behalf of Ministers and
Departments. The Notice, however, goes on to provide that "other
contracts connected with HMCS Estate will, as a general rule,
be in the name of the Lord Chancellor. These documents are to
be signed on behalf of the Lord Chancellor in his official capacity.
The office of the Lord Chancellor subsists not withstanding the
change in the name of the department to the Department for Constitutional
Affairs and the creation as a separate legal person of its Secretary
of State." (page 3). Examples of contracts signed by the
Lord Chancellor under this Notice are occupational licences and
public finance initiatives.
3.10 The Notice referred to in the preceding
paragraph also notes that in relation to all the documents relating
to HMCS estates that "the FSS and Lord Chancellor should
be considered as jointly liable on any particular issue".
(page 3). (It should be noted that in fact the current practice
is for the Secretary of State for Justice to enter into contracts.)