R (Stellato) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOFFMANN,LORD BINGHAM OF CORNHILL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD,LORD CARSWELL |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] UKHL 5 |
| Court | House of Lords |
| Date | 14 March 2007 |
[2007] UKHL 5
Appellate Committee
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
David Pannick QC
Parishil Patel
(Instructed by Treasury Solicitor)
Respondents:
Keir Starmer QC
Phillippa Kaufmann
(Instructed by Bhatt Murphy)
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I am in full agreement with it, and for that reason agree that the Secretary of State's appeal should be dismissed and the respondent discharged.
My Lords,
I have had the benefit of reading in draft the opinion prepared by my noble and learned friend Lord Brown of Eaton-under-Heywood, and for the reasons which he has given I too would dismiss the appeal. I also agree with the observations of my noble and learned friend Lord Hope of Craighead on the significance of the procedure by which the 2005 Order was made.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brown of Eaton-under-Heywood. For the reasons he gives I too agree that the appeal should be dismissed and the respondent discharged.
As Lord Brown has explained, the answer to the question raised by this case depends on the proper construction of certain provisions in the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 ( SI 2005/950 (C42)) ("the 2005 Order"). It is a remarkable feature of this case that, if their effect had been that the respondent was entitled only to release on licence despite having reached the three-quarter point of the ten year sentence which he received under the regime that was in force when he committed the offences for which he was sentenced, this would have been achieved by a method of legislating that exposed the measure to the minimum of Parliamentary scrutiny. This raises a point of practice on which I wish to add these brief comments.
The preamble to the 2005 Order states that it was made in the exercise of powers conferred on the Secretary of State by sections 330(4)(b) and 336(3) and (4) of the Criminal Justice Act 2003. Section 330(2), read with section 330(1)(a), states that any power which the Act confers on the Secretary of State to make orders and rules is exercisable by statutory instrument. Section 330(4) provides:
"The power includes power to make -
(a) any supplementary, incidental or consequential provision, and
(b) any transitory, transitional or saving provision,
which the Minister making the instrument considers necessary or expedient."
Section 336 deals with commencement. Subsections (3) and (4) of that section state that the provisions of the Act, other than those mentioned in the two preceding subsections, come into force in accordance with provision made by the Secretary of State by order, and that different provision may be made for different purposes and different areas. In note (a) to the 2005 Order attention is drawn to the fact that section 333(3) is relevant to the scope of the powers in section 330(4)(b). Section 333 deals with supplementary and consequential provisions. Section 333(3) provides:
"Nothing in this section limits the power by virtue of section 330(4)(b) to include transitional or saving provision in an order under section 336."
The explanatory note to the 2005 Order confirms that the powers which the Secretary of State was exercising were those dealing with commencement and the making of transitional or saving provisions. It states (a) that the Order brings into force the provisions of the 2003 Act set out in Schedule 1 on 4 April 2005, those referred to in article 3 on 18 April 2005 and those referred to in article 2(2) and article 4 on 4 April 2007, and (b) that commencement in the case of provisions falling under article 4 and Schedule 1 is subject to the saving and transitional provisions contained in Schedule 2. Paragraphs 19 and 23 of Schedule 2 are the provisions that are under scrutiny in this appeal.
The 2003 Act reserved some measure of control over the exercise of these powers to Parliament. The systems which it selected must be seen in the light of those which Parliament itself has put in place for delegated legislation to be subjected to scrutiny. All statutory instruments made in the exercise of powers granted by an Act of Parliament are considered by the Joint Committee on Statutory Instruments. Its role is to assess the technical qualities of each instrument that falls within its remit and to decide whether to draw the special attention of the House to any instruments on any one or more of a number of specified grounds which are of a technical character: House of Commons Standing Order No 151; House of Lords Standing Order No 74. These grounds include that the drafting appears to be defective. Defects of that kind may include simple misprints such as those in paragraph 23 of the 2005 Order which Lord Brown mentions in paragraph 36. Where technical defects are discovered, they are drawn to the attention of the Department which was responsible for the instrument for its comments before the instrument is drawn to the special attention of both Houses. It is not surprising, in view of the huge volume of delegated legislation that has to be scrutinised by this Committee, that the misprints in paragraph 23 were not detected by it so that arrangements could be made for them to be corrected by the Home Office at the earliest opportunity.
Then, so far as the House of Lords is concerned, there is the Merits of Statutory Instruments Committee. Its terms of reference include the consideration of every draft of an instrument laid before each House of Parliament upon which proceedings may be taken in either House under an Act of Parliament. This is with a view to determining whether or not the special attention of the House should be drawn to it on grounds of a more general character. These are (a) that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House, (b) that it may be inappropriate in view of changed circumstances since the enactment of the parent Act, (c) that it may inappropriately implement European Union legislation and (d) that it may imperfectly achieve its policy objectives. Matters within the orders of reference of the Joint Committee on Statutory Instruments are excluded from those that it may consider.
Here again the volume of the material that passes through the committee's hands affects the number of instruments that can be singled out for detailed scrutiny. It is rare for instruments made in the exercise of commencement powers to feature on the list of those which are singled out for detailed scrutiny by the Merits Committee. Exceptionally, this Committee did draw attention to the draft Criminal Justice Act 2003 (Commencement No 12 and Transitory Provisions) Order 2005 on the ground that it gave rise to issues of public policy likely to be of interest to the House and was legally important: (Thirteenth Report, 10 November 2005, Session 2005-2006). But the purpose of this Order, which was made under sections 333(1) and (2)(a) and 336(3) of the 2003 Act, was to commence the provisions of section 43 of that Act which deals with applications by the prosecution for certain serious and complex fraud cases to be conducted without a jury. Section 330(5)(b) provides that an order bringing section 43 into force is subject to the affirmative resolution procedure. The Order was approved in the House of Commons, but it was withdrawn by the government shortly before it was due to be debated in the House of Lords.
The opportunity for wider and more detailed debate and scrutiny of delegated legislation in both Houses is determined by the provisions in the enabling Act. Four procedures are available: affirmative resolution procedure; negative resolution procedure; simply laying; and no parliamentary stage at all: Butterworths Legal Research Guide, 2nd edition (2001), para 4.74. Which of these procedures is prescribed in the enabling legislation will determine whether there are likely to be any debates. It is important in the context of this appeal to see what the 2003 Act laid down.
The relevant provisions in the 2003 Act are set out in section 330(5) and (6). Section 330(5) provides that a statutory instrument containing (a) an order made under various provisions which are listed in that paragraph, (b) an order under section 336(3) bringing into force section 43, (c) an order making provision by virtue of section 333(2)(b) which adds to, replaces or omits any part of the text of an Act, or (d) rules made under section 240(4)(a) (which enables the Secretary of State, in certain cases, to make rules to the effect that the number of days for which the offender was remanded in custody in connection with the offence or a related offence are not to count as time served by him as part of the sentence) "may only be made if a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament." This is a reference to the affirmative resolution procedure. Section 330(6) provides that any other statutory instrument made in the exercise of a power to which the section applies is subject to annulment in pursuance of a resolution of either House of Parliament. This is a reference to the negative resolution procedure.
The affirmative resolution procedure requires that a resolution must be passed by both Houses before the order or rules can be made. This provides an opportunity for...
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