Joint Committee on Statutory Instruments Thirty-Second Report


Memorandum by the Lord Chancellor's Department


1. The Lord Chancellor's Department submits this memorandum in response to the Committee's request dated 8 November 2000, on the following points.

2. The first point is:

    Explain the reference to rule 4(a) in rule 2(3)(a).

In an earlier draft, the provision which is now rule 4 was rule 4(b), and there was a sub-paragraph (a) inserting in the Arrangement of Rules the entry "2.70 Pensions". This was seen to be otiose and was deleted, but unfortunately no consequential amendment was made in rule 2(3)(a) deleting the reference to rule 4(a). The Department apologises for this oversight, but would point out that rule 4 has no substantive effect.

3. The second point is:

    Explain the reference, in paragraph 5(c) and (d) of rule 2.70 of the 1991 Rules as substituted by rule 9, to "a valuation of pension rights or benefits...which has been furnished or requested pursuant to" section 94(1)(a), (aa) or (b) of the Pension Schemes Act 1993.

In paragraphs 4 to 8 below:

    "the 1993 Act" means the Pensions Schemes Act 1993;

    "the regulations" means the Divorce etc. (Pensions) Regulations 2000 (S.I. 2000/1123);

    "the transfer regulations" means the regulations listed in sub-paragraphs (a), (b) and (d) of rule 2.70(5); and

    a reference to any rule by number alone means the rule so numbered in the Family Proceedings Rules 1991, as amended by the instrument under consideration.

4. The wording of rule 2.70(5) was taken from regulation 3(2) of the regulations. The purpose of regulation 3 was that, in setting a value for a person's pension rights for the purpose of ancillary relief proceedings, the court should be allowed to take account, not only of valuations furnished specifically for the purposes of ancillary relief proceedings, but also of any valuation made in the course of the last year for the purpose of the regime of transfer values under the 1993 Act. Similarly the purpose of rule 2.70(5) is that, if such a valuation is available, the party with pension rights should not be required to obtain a fresh valuation from the administrators of his pension scheme.

5. It is clearly necessary that the definition of a relevant valuation should be the same for both purposes. For this reason, the definition in rule 2.70(5) exactly follows that in the regulations, which were made on 14th April 2000. In both instruments, the need was for a definition including any information furnished or valuation made for the purposes of the regime of cash equivalent transfer values contained in Chapter IV of Part IV of the 1993 Act.

6. The essence of that regime is contained in section 94(1) of the 1993 Act, which gives a member of a pension scheme the right to the cash equivalent of his accrued benefits under the scheme in certain events. The rest of Chapter IV of Part IV consists of machinery for assessing that cash equivalent and for giving effect to the member's right to it. In addition, section 113 of the 1993 Act provides that the Secretary of State may make regulations conferring on members the right to information about their pension schemes, and the transfer regulations are made under that power. The transfer regulations provide that a member of a pension scheme is entitled to request, at intervals of not less than twelve months, a valuation of his accrued benefits, on the same basis as if the events which gave him the right to a cash equivalent had occurred.

7. Valuations for the purposes of the regime of cash equivalent transfer values will normally be under the transfer regulations, or else under section 93A of the 1993 Act, as inserted by section 153 of the Pensions Act 1995. However, in drafting regulation 3(2) of the regulations, it was desired not only to mention those specific provisions but also, for the sake of caution, to allow for any residual type of valuation furnished for the purposes of the cash equivalent transfer value regime; and as stated, the essence of that regime is contained in section 94(1) of the 1993 Act.

8. In summary, paragraphs (a), (aa) and (b) of section 94(1) are not themselves provisions relating to the furnishing or requesting of a valuation. But every valuation of a cash equivalent transfer value exists for the purpose of determining the extent of the right conferred by those paragraphs and is, in that sense, pursuant to them.

9. The third point is:

    Explain the references, in paragraphs (18) and (19) respectively of rule 10.26 as inserted by rule 10, to a claim made under section 9(3) of the Human Rights Act 1998 and to a claim made in respect of a judicial act to which section 9(3) and (4) of that Act applies. Should the references have been to section 7(1)?

10. Section 7(1) of the 1998 Act allows claims to brought against any public authority which the claimant alleges has acted or proposes to act in a way which is made unlawful by section 6(1). "Public authority" has the meaning given by section 6(3); it includes a judge, court or tribunal, but has a very much wider meaning. Claims in respect of a judicial act, as defined by section 9(5), are a sub-class of claims against a public authority, and are governed by section 9 as well as section 7.

11. It would have been possible, in rule 10.26(18) and (19), to refer to claims made under section 7(1), but a reference would then also have had to be made to section 9(3). The reference to the latter section alone is however sufficient, since the opening words of section 9(1) make it clear that a claim under section 9 is a sub-class of proceedings under section 7. The Department accordingly submits that the wording of this rule is correct. It would point out that the Civil Procedure Rule Committee also took the view that claims in respect of a judicial act were properly described as claims under section 9 rather than section 7: see CPR rule 19.4A(3), inserted by rule 8 of the Civil Procedure (Amendment No. 4) Rules 2000, S.I. 2000/2092).

14 November 2000

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