Letter from Minister for Public Finance, Planning and Community Wealth to the Convener, 8 March 2022
Dear Stuart,
I am writing to make you aware that the following four pieces of subordinate legislation will regrettably breach the 28 day rule:
These instruments cannot be made and laid sooner because they are dependent on the Public Service Pensions and Judicial Offices Act 2022 (“the Act”), receiving Royal Assent. This was expected to be on 3 March 2022 however the Bill that precedes the Act has not yet completed its passage and is now at review stage in the House of Lords. Royal Assent is now expected to be received by 10 March 2022..
Chapter 4 of Part 1 of the Act, contains the operative prospective remedy provision necessary to bring to an end the unlawful age discrimination identified in the McCloud judgment.
In particular, section 88(2)(c) (as currently drafted) of the Act has the effect of closing the legacy public service pension schemes to future accrual after 31st March 2022. These instruments makes consequential provision for the relevant pension schemes. This provision must come into force immediately after the legacy pension schemes are closed to future accrual by the Act to ensure legal certainty and fairness. If there is any delay, then there will be a period in which certain members can no longer accrue pension in the legacy scheme but scheme rules would prevent those members from joining the new scheme.
Consequently I must inform you that these four instruments will breach the 28 day rule. Scheme members have been on notice, through consultation processes, that the commencement date for the prospective remedy would be 1st April 2022. In these circumstances, a breach of the 28-day rule should not give rise to any unfairness.
Tom Arthur