At its meeting on 6 February 2019 the Committee scrutinised a number of Instruments in accordance with Standing Orders. It was agreed that the special attention of both Houses should be drawn to one of those considered. The Instrument and the grounds for reporting it are given below. The relevant Departmental memorandum, is published as an appendix to this report.
1.1The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in two related respects.
1.2Regulation 4 substitutes a new regulation 3(5A)(a) of the Local Government Pension Scheme (Transitional Provisions, Savings and Amendment) Regulations 2014. The substituted provision provides that regulation D11 of the Local Government Pension Scheme Regulations 1995 has effect as if … (ii) in paragraphs (2)(d) and (4) the references to age 60 were substituted with references to age 55; (iii) in paragraph (3) – (aa) the reference to employing authority were substituted with references to administering authority.
1.3As the Ministry of Housing, Communities and Local Government explains in a memorandum printed as an Appendix, the purpose of regulation 4(a) is to make minor changes to a provision which saved, with modifications, the application of an earlier provision which had been revoked. That earlier provision related to deferred benefits for members of an earlier scheme who had ceased to be scheme members.
1.4This is therefore not the simplest of provisions for the reader to follow, and in the Committee’s view such circumstances call for particular emphasis on accuracy and clarity in drafting. In the case of this instrument, however, although the Committee thought it knew what the intended effect was—and the Department’s explanation shows that it was correct - it could not be sure as the drafting was not sufficiently precise, as described below.
1.5To substitute something is to put it in the place of something else. In the present case, it must be intended that references to age 55 are to be substituted for references to age 60 and a reference to administering authority is to be substituted for the reference to employing authority. The language used fails to clearly achieve that intention. (The Committee accepts that this is merely the repetition of an error which existed in an earlier instrument, but that does not excuse the failure to use the opportunity of an amendment to correct the earlier error.)
1.6Moreover, as there is only one reference to the employing authority in regulation D11(3), it is confusing to purport to replace it with more than one reference to the administering authority.
1.7The Committee accordingly reports regulation 4 for defective drafting.
Published: 8 February 2019