28.These seven instruments provide for the full closure of the final salary (legacy) sections of the pension schemes for members of the judiciary, teachers, NHS staff, civil servants, the police and firefighters on 31 March 2022, with all remaining active members transitioning to career average pension schemes on 1 April 2022. This implements the scheme closures provided for by the Public Service Pensions and Judicial Offices Act 2022 (“the PSPJO Act”) which received Royal Assent on 10 March 2022. The changes address a judgement by the Court of Appeal (McCloud)17 from 2018 which found that transitional protection arrangements under the Public Service Pensions Act 2013 unlawfully discriminated on the grounds of age against young pension scheme members. These transitional protection rules allowed older members (those within 10 years of their normal pension age) to remain in the final salary legacy sections of their schemes, whilst younger members were moved into new career average arrangements. The seven instruments ensure that following the closure of the legacy schemes through the PSPJO Act, all members of the different public service career average schemes will be treated equally from 1 April 2022.
29.Specifically for members of the judiciary, SI 2022/319 establishes the new Judicial Pension Scheme 2022 (JPS 2022) as the only judicial pension scheme in which eligible salaried and fee-paid judicial office holders can accrue benefits for future service from 1 April 2022. The Ministry of Justice explains that due to recruitment and retention challenges in the judicial profession, the JPS 2022 includes arrangements which differ from those in the other public service pension schemes. In particular, the JPS 2022 is tax unregistered, so that benefits accrued in the scheme do not count towards members’ annual allowance and lifetime allowance limits.
30.A further set of regulations will be made and will come into force by 1 October 2023 at the latest to deliver a retrospective remedy under the PSPJO Act. This will address the difference in treatment experienced by some members between 1 April 2015 and 31 March 2022 by rolling their service back into the legacy schemes and offering all members with remediable service a choice of benefits (legacy or reformed scheme) for that period. We note that the Impact Assessment provided by HM Treasury for the PSPJO Act estimates that the changes will cost approximately £17 billion over the remedy period, with an additional cost of £130 million for the JCP 2022.18
31.Subject to the enactment of the Health and Care Bill, it is anticipated that Clinical Commissioning Groups (CCGs) will be abolished and replaced with 42 integrated care boards (ICBs) to commission the majority of secondary care services in England. The target date for this change is summer 2022. These Regulations put in place transitional measures, making the current restrictions on core numbers and qualifications more flexible so that, if they depart from CCGs prior to the establishment of their anticipated successor bodies, personnel may not have to be replaced and the CCGs can continue to function.
32.The principal Regulations require relevant bodies in England to make and recover charges from an overseas visitor for medical treatment and services provided to them. These amending Regulations provide an exemption for those displaced from their homes by the conflict in Ukraine. With effect from 24 February 2022, no charge may be made or recovered for treatment delivered to residents of Ukraine who are lawfully in the UK. The exemption is due to be reviewed in six months’ time.
33.We have recently become aware that the Department for Digital, Culture, Media and Sport (DCMS) failed to send us for scrutiny two documents which were laid before Parliament on behalf of the Information Commissioner’s Office. Both were subject to parliamentary procedure: the International data transfer agreement, which was laid on 2 February 2022, and the Code of Practice on Data Sharing, which was laid on 18 May 2021. While both documents are not statutory instruments, they were subject to a form of negative procedure, and therefore fell within our remit.
34.We consider all secondary legislation that is subject to parliamentary procedure, including statutory Codes of Practice, and departments should send us copies of all relevant legislation for scrutiny. In both these cases, however, the documents came into force and the 40-day period during which either House could have resolved not to approve the documents expired without us being able to carry out our scrutiny function because the Department failed to send us copies of the documents. This is a significant oversight. We therefore welcome DCMS’s assurance that it will ensure that in future all relevant secondary legislation is sent to us for scrutiny, and that a reminder message has gone out to all departments about the extent of our role.
17 Court of Appeal (Civil Division), The Lord Chancellor and Secretary of State for Justice and the Ministry of Justice V McCloud and Others and N Mostyn and others, [2018] EWCA Civ 2844 (20 December 2018).
18 HM Treasury, Public Service Pensions and Judicial Offices Bill, Assessment of Impacts (December 2021): https://publications.parliament.uk/pa/bills/cbill/58-02/0211/AssessmentofImpactsPublicServicePensionsJudicialOfficeBill.pdf [accessed 30 March 2022].