Memorandum from the Department of Health
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
"(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
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
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