Joint Committee on Statutory Instruments Fifteenth Report


Memorandum from the Department for Transport, Local Government and the Regions


1 The Committee has requested a memorandum on the following points:

"Article 1 of this Order states that the Order has effect from 1 December 2000, but does not specify a date on which it comes into force. The Order therefore came into force on 13 November 2001, 9 days before it was laid before Parliament. Explain:

(1) the reason for the failure to comply with the 21 day rule and the failure to provide the Committee with an explanation;

(2) whether notification was given to the Lord Chancellor and to the Speaker, as required by the proviso to section 4(1) of the Statutory Instruments Act 1946;

(3) why the Explanatory Note does not cite the authority for the Order's retrospective effect, as required by paragraph 2.75 of Statutory Instrument Practice."

2 The Order amends the Firemen's Pension Scheme so as to make provision for the implementation of pension sharing on divorce. By virtue of section 12 of the Superannuation Act 1972, as applied by section 16(3), such an Order may be framed so as to have effect from a date earlier than its making.

3 The Department's normal practice when making orders which have retrospective effect in reliance on section 12 of the Superannuation Act 1972 is to bring the Order into force on a date after making, being a date which is such as to observe the 21-day rule. Unfortunately, on this occasion, such a date was omitted in error. As the Committee observes, this has the effect that the Instrument came into force on 13th November 2001 and the date given in the italicised heading to the Instrument (1st December 2001) is incorrect.

4 Regrettably, this error was not noticed until the Committee pointed it out. Accordingly, no explanation was given for failure to observe the 21-day rule and no notification was given either to the Speaker or to the Lord Chancellor. The Department is arranging immediately for the necessary notifications to be given.

5 The fact that the Explanatory Note did not contain the statement required by paragraph 2.75 of the Statutory Instrument Practice was due to an oversight. The Department will ensure that the following paragraph is added to the Note, so it is available in the printed annual volume:

"Section 12(1) of the Superannuation Act 1972, as applied by section 16(3) of that Act, provides that an Order under section 26 of the Fire Services Act 1947 may have retrospective effect; and this Order has effect from 1st December 2000."

6 The Department very much regrets that these errors occurred.

19th December 2001

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