6 S.I.
2012/683: Reported for defective drafting
Pensions Act 2008 (Commencement No. 12) Order
2012 (S.I. 2012/683)
6.1 The Committee draws the special attention
of both Houses to this Order on the ground that it is defectively
drafted in two connected respects.
6.2 The Order makes provision for the commencement
of various provisions of the Pensions Act 2008 ("the 2008
Act").
6.3 Article 2(1) provides that section 14 of the
2008 Act is to come into force on 6 March 2012 (so far as not
already in force). A new version of section 14 was substituted
by section 8 of the Pensions Act 2011 ("the 2011 Act").
Section 8 was brought into force on 3 January 2012 by article
3(a) of S.I. 2011/3034. Given that, the Committee asked the Department
for Work and Pensions to explain why article 2(1) now purports
to commence section 14 (from a later date). In a memorandum printed
at Appendix 6, the Department states that section 14 needs to
be commenced because it could be argued that the commencement
of section 8 "would not (beyond doubt) have the effect of
"breathing life" into section 14". The Committee
is clear that commencing a provision that makes a substitution
has the effect of commencing the substituted material. So it considers
that also to make provision for commencement of the substituted
material is (at best) unnecessary. But, by purporting to commence
the substituted section 14 from a date later than that on which
the substituting section 8 was commenced, article 2(1) is in the
Committee's view more than merely unnecessary: to purport to commence
substituted material on a date later than that on which the substituting
provision comes into force is liable to lead to confusion and
uncertainty about when the substituted material begins to have
effect.
6.4 Article 2(2)(a) provides that section 15A of
the 2008 Act comes into force on 7 March 2012. Section 15A was
inserted into the 2008 Act by section 9 of the 2011 Act which
was brought into force on 6 March 2012 by article 2(a) of S.I.
2012/3034. The Committee asked the Department to explain why,
given that section 9 came into force on 6 March 2012, article
2(2)(a) purports to commence section 15A on the next day. In its
memorandum the Department states that "for the avoidance
of doubt" it was necessary to commence section 15A of the
2008 Act as well as section 9 of the 2011 Act. But the Committee
considers that, as with cases of substitution, where a provision
making an insertion has been brought into force there is no need
also to commence the insertion, and that to purport to do so from
a later date is similarly confusing.
6.5 The Department, in its memorandum, expresses
gratitude to the Committee for clarifying that, where a provision
is substituted or inserted in one Act by another, it is necessary
to commence only the substituting or inserting provision. That
is indeed the Committee's view. It considers that, by not following
that approach in article 2(1) and 2(2)(a), the Department made
provision that was at best unnecessary and (given that different
dates were specified) inappropriate.
6.6 The Committee accordingly reports article
2(1) and (2)(a) for defective drafting.
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