Joint Committee on Statutory Instruments Twenty-Seventh Report


APPENDIX 4

Memorandum from the Department of Health

NATIONAL HEALTH SERVICE PENSION SCHEME (AMENDMENT) REGULATIONS 2002

(S.I. 2002/561)

1. The Committee has requested that the Department submit a Memorandum concerning the above Regulations on the following points (the response on each point follows the recitation of the relevant point)-

    "(1) These Regulations were made on 15 March 2002 but are expressed to come into force for certain purposes on 1 April 2001. As this does not appear to be authorised by the enabling Act and gives rise to a breach of the 21 day rule and the need to notify the Lord Chancellor and the Speaker in accordance with section 4(1) of the Statutory Instruments Act 1946, did the Department intend to provide for the Regulations to come into force for all purposes on 5 April 2002 and for regulation 3 and paragraphs 1 to 10 of the Schedule to have effect as from 1 April 2001?"

2. The Department did intend to provide for the National Health Service Pension Scheme (Amendment) Regulations to come into force for all purposes on 5 April 2002 and for regulation 3 and paragraphs 1 to 10 of the Schedule to have effect as from 1 April 2001.

3. The authority for the retrospective effect outlined is section 12(1) of the Superannuation Act 1972 which enables regulations made under section 10 of that Act to be framed so as to have effect as from a date earlier than the making of the regulations.

4. The Department did not intend regulation 3 and paragraphs 1 to 10 of the Schedule to the instrument to come into force before the instrument had been laid before Parliament though it acknowledges that this is the effect of what has been done. Nor did the Department mean to breach the 21 day rule in relation to these provisions, which is regretted.

5. The Department acknowledges that the coming into force date in the italic headings below the title of the instrument is therefore wrong and that regulation 1 should have been worded so as to make it clear that the Regulations come into force on 5 April 2002 and that regulation 3 and paragraphs 1 to 10 of the Schedule have effect from 1 April 2001.

    "(2) Explain why the Explanatory Note does not cite the authority in the enabling Act for the retrospective effect as required by paragraph 2.75 of Statutory Instrument Practice."

6. It is accepted that the Explanatory Note should have mentioned that section 12(1) of the Superannuation Act 1972 confers power to make regulations having effect from a date earlier than the date of their making. The Department would be happy to arrange for the Note, as it will appear in the Annual Volume, to be amplified accordingly.

23 April 2002


 
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