Fortieth Report of Session 2017–19 Contents

Appendix 7

S.I. 2018/1137

Non-Contentious Probate (Amendment) Rules 2018

1.On 21 November 2018, the Committee requested that the Ministry of Justice submit a memorandum relating to the above instrument (the “Amending Rules”) relating to the following points:

Explain why the statement of authority to sign on behalf of the Lord Chancellor that appears in S.I.s 2016/972, 2009/1083 and 2004/2985 does not appear in this instrument.

Confirm that the references to “alternative online applications for personal applications” in rule 5, “online procedure for personal applications” in rule 6(1), and “Online” in rule 6(2) are wrong, and explain what the Department will do to correct these errors and ensure that references to the heading of rule 5A are consistent throughout the amended instrument.

2.The Department is grateful for the Committee’s consideration of the Amending Rules and sets out its response to the matters raised below.

Statement of Authority to Sign

3.The Committee is correct to note that, historically, where a statutory instrument was signed by a junior Minister, it was the practice of the Ministry of Justice to specify that the instrument was signed under the authority of the Lord Chancellor (or the Secretary of State for Justice as the case may be). It is the Department’s view that this wording is superfluous as a junior Minister has clear authority under the Carltona principle14 to sign statutory instruments falling within his or her area of responsibility. Statutory Instrument Practice (SIP)15 clearly envisages that instruments may be signed by junior Ministers, stating that:

“In most Departments any instrument which comes before the JCSI is signed by a Minister. This will usually be the junior Minister responsible for the instrument’s subject matter.”

4.The relevant paragraph of SIP16 does not recommend any alteration to the form of the signature block of text where a junior Minister signs an instrument, in contrast to the guidance concerning instruments which are signed by officials,17 which states that:

“Where an instrument is local and not laid before Parliament so that it does not come before the JCSI it is often signed by an official. If an official is signing the preferred formula is title of post followed by “for and on behalf of the Secretary of State for […]”

5.In March 2017, the Ministry of Justice updated its internal drafting guidance, recommending that Departmental practice be altered to better align with the practice of other Government Departments and with SIP. Following this change of practice, a statement of authority is no longer included as a matter of course in instruments signed by a junior Minister of the Ministry of Justice.

References to “alternative online applications for personal applications” in rule 5, “online procedure for personal applications” in rule 6(1) and “Online” in rule 6(2).

6.The Committee is correct to note that there is an error in rule 6 of the Amending Rules. The existing heading of rule 5A of the 1987 Rules is “alternative procedure for personal applications”. Rule 6(2) of the Amending Rules should read “In the heading, for “alternative”, substitute “alternative online”” in order that the new heading would read “Alternative online procedure for personal applications”. The new provisions inserted by rules 2 and 5 of the Amending Rules refer to rule 5A of the 1987 Rules as amended, with the amended heading. The Department is grateful to the Committee for alerting the Department to this error and will make the correction at the earliest available opportunity

Ministry of Justice

27 November 2018

14 Carltona v Commissioner of Works [1943] 2 All ER 560 (CA)

15 Statutory Instrument Practice (5th Edition), paragraph 3.7.1

16 paragraph 3.7.4

17 paragraph 3.7.5

Published: 7 December 2018