4 S.I.
2011/1364: Reported for defective drafting
Armed Forces Pension Scheme 2005 (Amendment) Order
2011 (S.I. 2011/1364)
4.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in two related respects.
4.2 Article 2(4) amends rule D.2 of the rules set
out in Schedule 1 to the Armed Forces Pension Scheme Order 2005.
Sub-paragraph (a) inserts the words "or, in the case of a
member who is within paragraph (7) of this rule, the member attains
pension age" in rule D.2(1); sub-paragraph (b) inserts the
words "or, in the case of a member who is within paragraph
(7) of this rule, attaining pension age" in rule D.2(2);
and sub-paragraph (c) inserts a new rule D.2(7). Paragraphs (1),
(2) and (7) of the rule D.2 as amended are helpfully set out in
the memorandum from the Ministry of Defence printed at Appendix
4.
4.3 The effect of the amendments to rule D.2(1) and
(2) is that a member who is within paragraph (7) of that rule
and attains pension age is entitled to benefits, but the first
condition for a member to be within paragraph (7) includes the
requirement that the member has not yet attained the pension age.
It is clearly not possible for a person both to fall within paragraph
(7) and to attain pension age.
4.4 In its memorandum, the Department explains the
intended effect of the amendments, and suggests that, "on
any purposive construction", the intention is met by the
amendments. It states that it will amend the provision "if
it is demonstrated that the provision is being misinterpreted
in its application" but (subject to that) there is no indication
of intention to amend the provision even next time the 2005 Order
is amended.
4.5 The Committee accepts that a court, faced with
two irreconcilable propositions as here, is bound to seek to interpret
them sensibly and so is likely to adopt the Department's intended
interpretation, but it is surprised by the implication that it
is acceptable not only to use words which, read literally, fail
to express the intended effect but also to leave them in the legislation
indefinitely. Adjustment should be straightforward — for
example, had paragraph (7) stated, so far as relevant, that a
member was within that paragraph if under pension age at the
time of ceasing to be in service, the rule would have been
clear. The Committee accordingly reports article 2(4) for defective
drafting.
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