House of Commons - Defence

Select Committee on Defence First Report

5 Legislation

Primary and secondary legislation: an enabling bill?

108. The Minister for Veterans has made clear that the detail of the schemes will not be in the primary legislation put before Parliament, but will be contained in secondary legislation.[136] The bill introduced on 4 December will merely give the Secretary of State powers to establish the new schemes, as well as providing for a new independent appeals system for the compensation scheme and, on a matter unrelated to this report, enabling the Royal Patriotic Fund Corporation to reorganise itself.

109. It is standard practice that the detail of such schemes is set out in secondary legislation. The legal basis for the current pension scheme rests in three prerogative instruments made and amended under three rather ancient Acts of Parliament, the most recent dating from 1917. Pension schemes under the Superannuation Act 1972, which apply to civil servants and teachers among others, are also made by way of secondary legislation, but crucially, Ministers are required to conduct relevant consultations before these schemes are made.

Parliamentary oversight of secondary legislation

110. The Government envisages the regulations implementing or amending the new schemes being subject to negative resolution by Parliament. This procedure in theory allows either House of Parliament to reject a scheme outright if it votes specifically to do so within 40 sitting days of the scheme being laid before Parliament. It does not allow Parliament to amend a scheme.

111. However, in practice there is no guarantee that Parliament will either debate or vote on the schemes themselves. A debate on secondary legislation subject to negative resolution procedure occurs only rarely in the House of Commons, even a debate in Standing Committee, and a vote on the floor of the House takes place more rarely still. Whether a debate or vote takes place in the House of Commons is entirely in the hands of the Government.

112. In session 2001-02, of the 1,468 pieces of secondary legislation subject to negative resolution procedure, 41 were considered by a Standing Committee, only 3 were considered on the floor of the House, and only one was actually voted on. In session 2002-03, there were 32 debates in Standing Committee on secondary legislation subject to negative resolution procedure, and no debates at all on the floor of the House.

113. The Minister told us in evidence that

There will be Parliamentary protections. We are going to have to produce enabling legislation to bring in this scheme in April 2005 and there will be, I anticipate, in the Bill, if it is in the Queen's Speech, protective measures to allow Parliament to consider those matters.[

137

In fact, where the negative resolution procedure is used for secondary legislation, there are only the weakest of parliamentary protections. There is no guarantee that the House of Commons will be allowed to consider the secondary legislation, still less vote upon it.

114. While it is true that most public pension schemes are made by way of secondary legislation subject to the negative resolution procedure, there are three reasons why this procedure would be inappropriate for the Armed Forces schemes. First, the consultation process was, as we said in our last Report, woefully lacking in detail, with those who wished to respond to the consultation disadvantaged by the lack of detailed information.[138] Moreover, since then the schemes have been changed in important ways without further consultation taking place. Second, the Minister's evidence to us reinforced our concern that some important elements of the schemes have still not been finalised, and may not be finalised until after primary legislation is already under consideration. The Minister told us that he did not intend to deal with "many" of the issues raised by us until during consideration of the primary legislation.[139] Third, the Armed Forces, unlike other public servants, have no representative body to argue on their behalf as employees. Other public service pensions legislation provides for consultation with relevant bodies, including trades union, before any scheme can be introduced. Because of inadequate consultation, because of the evidence we have heard that the elements of the schemes will not be fleshed out until consideration of primary legislation is already under way, and because Armed Forces personnel have no body representing their interests as employees, it is essential that the Government should seek explicit parliamentary approval for the schemes themselves, as well as for primary legislation.

FUTURE AMENDMENTS AND REPLACEMENT SCHEMES

115. Further, the legislation will enable the Government not merely to introduce one set of new schemes, but also to amend the schemes or replace them entirely. Although the Government theoretically have similar powers in respect of the schemes for other public service employees, as we have seen, these powers are accompanied by a requirement to consult. We are concerned that this safeguard will not be present for the Armed Forces schemes. Parliament is an alternative safeguard, but only if it has a role in approving future changes to the schemes.

116. For all these reasons, any amendments to the schemes which could negatively affect the benefits of personnel and their dependants under the schemes should also be approved by Parliament. Technical amendments which do not affect the substance of the schemes might reasonably be subject to negative resolution.

117. We also believe that there is a strong case for setting out the basic principles of the schemes in primary legislation, for example as a schedule to the bill. These principles might include, for example, the final salary basis of the pension scheme; its non-contributory nature; and the accrual rate of 1/70 of pensionable pay for each full year of service; the standard and burden of proof for claims under the compensation scheme; and the basis of entitlement to compensation.

SUPER-AFFIRMATIVE PROCEDURE: LEGISLATING FOR CONSULTATION AND SCRUTINY

118. As already noted, one of the disadvantages of secondary legislation is that Parliament cannot normally amend it, but only accept or reject it outright. One of the notable advantages of the super-affirmative procedure, which resembles the procedure under the Regulatory Reform Act 2001 and has been used, for example, in section 9 of the Local Government Act 2000, is that it allows for changes to be made during parliamentary scrutiny and in response to this:

The ability to make changes (minor or otherwise) to the draft order while it is being scrutinised and in response to the scrutiny is a key feature of the order-making power, which is not available to statutory instruments dealt with in the usual way.[

140

Another of the advantages of this procedure is that it allows for in-built consultation of precisely the sort that we believe to be essential for any major changes to the schemes. In order to ensure that future major changes to the schemes involve proper consultation, and to ensure that Parliament is able to suggest changes to the schemes themselves, we recommend that major changes to the schemes in the future should be by statutory instrument subject to super-affirmative procedure, allowing for consultation both with interested groups and with Parliament, before final secondary legislation is presented to Parliament for approval.

Preparation for the passage of a bill

119. We have seen framework documents for the new pension and compensation schemes, but not for the proposed early departure scheme. We regard it as essential that a framework document for the new Armed Forces Early Departure Scheme should be available to Members before second reading of the bill, as well as the framework documents already provided to us.

120. In any case, these framework documents do not provide the level of detail that will be necessary for the scheme rules, and for any secondary legislation. As the Forces' Pension Society explains, "until the rules of the new scheme have been written and promulgated it is not possible to define the inconsistencies and future stumbling blocks".[141] If the detail of the scheme rules is not available before second reading of the bill, this makes it all the more important that Parliament should have the chance to examine and question Ministers on the detail of these rules when secondary legislation is made.

136 Ev 18 Back

137 Q 68 Back

138 HC (2001-02) 666, para 14 Back

139 Q 34 Back

140 Regulatory Reform Act 2001, Explanatory Notes, paragraph 15. Back

141 Ev 30 Back