Joint Committee on Statutory Instruments
31.32The Joint Committee on Statutory Instruments is constituted by House of Commons Standing Order No 151 and by Lords Standing Order No 74.1 The Committee consists of seven Members of each House, of whom two are a quorum. The Chairman is normally a Commons Member from the Opposition side of that House.
The Joint Committee considers instruments laid before each House and upon which proceedings may be, or might have been, taken;2 other instruments where, pursuant to statute, the proceedings are by way of an affirmative resolution; and special procedure orders (para 42.18 ).3 General statutory instruments (except certain Scottish and Welsh ones) are also considered by the Committee, even though not subject to parliamentary proceedings.
The Committee does not consider draft orders under Part 1 of the Legislative and Regulatory Reform Act 2006, under s 5E of the Fire and Rescue Services Act 2004 or under ss 7 or 19 of the Localism Act 2011, subordinate provisions orders under the Regulatory Reform Act 2001 (c 6), proposals for remedial orders and draft remedial orders under the Human Rights Act 1998, and Church of England Measures and instruments made under them (see paras 31.36 –31.38, 31.39 –31.41, and 31.48 –31.49 ).4
The Committee may draw the attention of Parliament to an instrument on any of a series of specified grounds, or on any other ground not impinging on the merits of or policy behind the instrument. The particular grounds on which the Committee may act are:
- that an instrument imposes or prescribes a charge on the public revenues or requires payments to be made for any licence or consent or other service from a public body;
- is made under an enactment excluding it from challenge in the courts;
- purports to have retrospective effect where the parent statute does not so provide;
- has been unjustifiably delayed in publication or being laid before Parliament;
- has not been notified in proper time to the Lord Speaker and the Speaker of the House of Commons where it comes into effect before being presented to Parliament;
- gives rise to doubts whether it is intra vires, or appears to make an unusual or unexpected use of the powers conferred by the parent statute;
- requires elucidation as to its form or purport; or
- is defective in drafting.
Before drawing the special attention of Parliament to an instrument, the committee must give to the department concerned an opportunity of making explanations orally or in writing; at times departments have chosen to waive that opportunity for timing reasons (see para 31.16 ). The Committee is also empowered to take evidence from Her Majesty's Stationery Office concerning the printing and publication of an instrument. It is not expressly permitted to take evidence from any other person.5
The Committee publishes a report of each meeting showing the instruments that it has considered and setting out its reports and the explanations of government departments in relation to instruments to which it has drawn the attention of both Houses. Up to the end of 2009, the Committee made an annual report listing the observations it had made on statutory instruments and responses received from government departments. The Committee also issues themed special reports from time to time.6
- 1. The Committee was initially appointed by sessional order (LJ (1972–73) 161; CJ (1972–73) 141). The Commons Standing Order was first made in 1983, and the Lords Standing Order first made in 1997 and supplemented by a Resolution of the House (LJ (1997–98) 411–12).
- 2. Statutory instruments and draft statutory instruments, as well schemes (including amendments of schemes and draft schemes) requiring approval by statutory instrument.
- 3. This includes statutory instruments laid under the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020, although these are also scrutinised in the Commons by the European Statutory Instruments Committee. The European Statutory Instruments Committee may recommend that an instrument made under these statutes which the Government proposes be subject to negative resolution is upgraded to affirmative resolution procedure.
- 4. LJ (1976–77) 586; CJ (1976–77) 355; LJ (1994–95) 78; ibid (2001–02) 1108; CJ (2001–02) 556.
- 5. The House of Commons has conferred on the Commons Members the power to send for persons, papers and records at a particular meeting and to report the minutes of evidence taken at that meeting (CJ (1977–78) 372). The House of Lords now confers on the Lords Members a similar power to send for persons, papers and records at the start of each session (for example, LJ (2009–10) 28).
- 6. The final annual report is the First Special Report of Session 2010–12, Scrutinising Statutory Instruments: Departmental Returns 2009, HL 24, HC 402; the first themed Special Report (Excluding the inert from secondary legislation ) is HL 6, HC 167 (2013–14).