CO885-(13-15) — Page 401

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PUBLIC RECORD OFFICE

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Reference :-

ITC.O.885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

SIR,

No. 78A.

(GENERAL.)

LAW OFFICERS to COUNCIL OFFICE.

Royal Courts of Justice, February 26, 1895. We were favoured with your letter of the 18th October last, stating that you were directed by the Lord President of the Council to transmit to us a copy of Regulations made by the Treasury, with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, in pursuance of the Rules Publication Act,

1893.

That difficulties having arisen in the administration of the Act, the Lord President directed a letter to be addressed to the Treasury on the subject.

That you were to transmit to us a copy of the letter from your office to the Treasury together with a copy of the reply received from the Treasury; and that you were to request that we would be pleased to inform the Lord President whether, in our opinion, the "Rule-making Authority" in the case of Orders in Council was the Privy Council, or the Department preparing the Draft of the Order which required the confirmation of Her Majesty in Council.

That you were to transmit to us a list of Orders in Council (and copies of the Orders) which might come within the provisions of section 1 of the Rules Publication Act; and that you were to request, should we be of opinion that the Privy Council was the "Rule-making Authority" in the case of those and similar Orders, that we would be pleased to inform the Lord President what Orders in Council did come within those provisions, and further, in cases in which urgency was pleaded under section 2 of the Act by a Department forwarding a Draft Order for submission to Her Majesty in Council, what course of procedure should be adopted.

We were also favoured with your letter of the 8th November last, stating that were directed by the Lord President of the Council to transmit to us, for our consider- you ation, a letter which had been received from the Colonial Office as to whether a proposed Order in Council under "The Foreign Jurisdiction Act 1890" to amend the Cyprus Extradition Order in Council, 1881, would, if approved by Her Majesty, be a "Statutory Rule" within the meaning of section 1 of "The Rules Publication Act."

We have also to acknowledge the receipt of your letter of the 24th December last, transmitting, for our information, & memorandum furnished by Mr. Gray to the Foreign Office respecting the applicability of the Rules Publication Act, 1893, to Orders in Council under the Foreign Jurisdiction Act and other classes of Orders in Council.

We have taken the papers into our consideration and have the honour to

Report-

(1.) That, in our opinion, the Privy Council is the "Rule-making Authority" when- ever the Order requires the confirmation of Her Majesty in Council, whether or not the draft of the Order be prepared by any other Department. The test appears to be-what is the Authority whose decision converts into law what was previously a proposal.

(2.) We are of opinion that an Order in Council cannot of itself be properly called a "Statutory Rule," but it may contain a "Statutory Rule," that is to say, a “rule, "regulation, or byelaw."

If such rule, regulation, or byelaw complies with the provision of section 1, sub-section 4, of the Rules Publication Act, then the Order in Council containing it must be dealt with as provided by section 1 of that Act, otherwise not.

(3.) In our opinion, in the case of urgency, the provision of section 2 of that Act should be followed, but we consider it would be contrary to the spirit and intention of the Act, though perhaps within its language, if provisional rules were to be perpetuated. The Act means that provisional rules are only for cases of urgency, and are to be supplemented by regular rules.

0 05985.--5. 25.-8/95,