This is a Joint Committee report.
Joint Committee on Statutory Instruments
Date Published: Friday 13 December 2024
At its meeting on 11 December 2024 the Committee scrutinised a number of instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to two of those considered. The instruments and the grounds for reporting are given below. The relevant departmental memoranda are published as appendices to this report.
Procedure: Made negative
1.1 The Committee draws the special attention of both Houses to these Regulations on the grounds that there was an unjustifiable delay in laying them before Parliament.
1.2 These Regulations make provision for the Armed Forces training return of service commitment (which requires a person to return to service for a specified period after completion of a training course funded by the Armed Forces) to be imposed regardless of the length of training course to be undertaken. The Regulations were made on 15 October 2024 and laid before Parliament on 28 October 2024. The Committee asked the Ministry of Defence to explain the delay.
In a memorandum printed at Appendix 1, the Department explains that the delay was due to a misunderstanding within the Department. As set out in the Committee’s First Special Report of Session 2017-19, Transparency and Accountability in Subordinate Legislation at paragraphs 2.2 to 2.14, laying before Parliament is the formal measure by which publicity is assured and there is no reasonable excuse for delay in such a simple administrative step. Once a statutory instrument has been made, it is law from that point. Even if the instrument comes into force some months after being made, Parliament and the public are entitled to as much notice of the prospective law as the Government has itself. The Committee considers that, as a general rule, a delay of 10 calendar days or more will amount to an unjustifiable delay. The Committee accordingly reports these Regulations for unjustifiable delay in laying before Parliament, acknowledged by the Department.
Procedure: Made negative
2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect.
2.2 These Regulations set out procedures to determine the amounts to be paid where the Court Martial Appeals Court directs the Secretary of State to pay the costs of a person who has successfully appealed against their sentence. The preamble cites section 31(4) of the Court Martial Appeals Act 1968 as an enabling power but that subsection contains no power to make regulations. The Committee asked the Ministry of Defence to explain this apparent error.
2.3 In a memorandum printed at Appendix 2, the Department acknowledges that section 31(4) was cited in error and that section 31(5)(b) which refers to procedures being specified in regulations made by the Lord Chancellor should have been cited instead. Given that failure to cite an enabling provision can go to vires (Vibixa Ltd and another v Komori UK Ltd and others [2006] EWCA Civ 536), care should be taken when drafting preambles. However, in this instance, the Committee is content to report the preamble for failure to comply with proper legislative practice, acknowledged by the Department.
At its meeting on 11 December 2024 the Committee considered the instruments set out in the Annex to this Report, none of which were required to be reported to both Houses.
S.I. Numbers |
S.I. Title |
Draft |
Devon and Torbay Combined County Authority Regulations 2024 |
Draft |
Lancashire Combined County Authority Regulations 2024 |
Draft |
Heat Networks (Market Framework) (Great Britain) Regulations 2025 |
S.I. Numbers |
S.I. Title |
S.I.2024/1095 |
The Whole of Government Accounts (Designation of Bodies) Order 2024 |
S.I.2024/1101 |
The Feed Additives (Authorisations) and Uses of Feed Intended for Particular Nutritional Purposes (Amendment of Commission Regulation (EU) 2020/354) (England) Regulations 2024 |
S.I.2024/1110 |
The Medicines (Gonadotrophin-Releasing Hormone Analogues) (Emergency Prohibition) (Extension) (No. 2) Order 2024 |
S.I.2024/1127 |
The Proceeds of Crime Act 2002 (External Investigations and External Orders and Requests) (Amendment) Order 2024 |
S.I.2024/1131 |
The Crown Court (Amendment No. 2) Rules 2024 |
S.I.2024/1133 |
The General Medical Council (Miscellaneous Amendments) Order of Council 2024 |
S.I.2024/1135 |
The Bus Lane Contraventions (Approved Local Authorities) (England) (Amendment) and Civil Enforcement of Moving Traffic Contraventions Designation Order 2024 |
S.I.2024/1158 |
Financial Services (Gibraltar) (Amendment) (EU Exit) Regulations 2024 |
S.I.2024/1163 |
The Criminal Legal Aid (Remuneration) (Amendment) Regulations 2024 |
S.I.2024/1205 |
The Health and Care Act 2022 (Further Consequential Amendments) Regulations 2024 |
S.I.2024/1221 |
The Rural Development and Farming Advice Service (Amendment) (England) Regulations 2024 |
S.I. Numbers |
S.I. Title |
S.I. 2024/1128 |
The Turks and Caicos Islands Constitution (Amendment) Order 2024 |
S.I. Numbers |
S.I. Title |
S.I. 2024/1104 |
The Free Zone (Customs Site No. 1 Humber) Designation Order 2024 |
S.I. 2024/1105 |
The Free Zone (Customs Site No. 1 Inverness & Cromarty Firth Green) Designation Order 2024 |
S.I. 2024/1106 |
The Free Zone (Customs Site No. 1 Thames) Designation (Amendment) Order 2024 |
S.I. 2024/1166 |
The Electricity and Gas (Standards of Performance) (Suppliers) (Amendment) (No. 2) Regulations 2024 |
1. The Committee has asked the Ministry of Defence for a memorandum on the following points:
Explain the delay between the making of this instrument and laying it before Parliament.
2. The Ministry of Defence sincerely apologises for the delay between the making of this instrument and laying it before Parliament.
3. The signatories were instructed to sign, and therefore make this instrument, shortly before laying. However, due to a misunderstanding, the signatories signed the instrument early. The Ministry of Defence took all steps to ensure that the instrument was laid as quickly as parliamentary scheduling allowed once this was discovered.
4. The Ministry of Defence will make sure going forward that all signatories are comprehensively briefed on the need to sign, and therefore make, statutory instruments shortly before laying so as to avoid any future delay between the making of instruments and their laying before Parliament.
Ministry of Defence
3 December 2024
1. The Committee has asked the Ministry of Defence for a memorandum on the following points:
Explain whether section 31(4) of the Court Martial Appeals Act 1968 has been cited in the preamble in error and, if so, whether the intention was to cite another provision in section 31.
2. The Department acknowledges that section 31(4)has been cited in error. The provision that should have been cited is section 31(5)(b), which refers to procedures being specified in regulations made by the Lord Chancellor.
3. Noting that preambles are generally not amended, the Department will not amend the existing drafting, however it does commit to take care to avoid such errors in the future.
Ministry of Defence
4 December 2024
Sir Bernard Jenkin, in the Chair
Lewis Atkinson
Lord Chartres
Mark Ferguson
Lord Meston
Baroness Sater
Draft Report (Ninth Report), proposed by the Chair, brought up and read.
Ordered, That the draft Report be read a second time, paragraph by paragraph.
Paragraphs 1.1 to 2.3 read and agreed to.
Annex agreed to.
Papers were appended to the Report as Appendices 1 to 2.
Resolved, That the Report be the Ninth Report of the Committee to both Houses.
Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.
Adjourned till Wednesday 18 December at 3.40 p.m.