Joint Committee on Statutory Instruments Twenty-Seventh Report


Appendix 3


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 2006-2007: http://www.publications.parliament.uk/

pa/jt200607/jtselect/jtstatin/191/19109.htm.

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.)


 
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