24th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 715 (Web Only)

Contents

Introduction
Points raised: instruments subject to negative procedure

Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) (Justice Committee)
Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) (Justice Committee)

No points raised
Annexe A
Annexe B
Annexe C

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership: 

Nigel Don (Convener)
John Mason (Deputy Convener)
Margaret McCulloch
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 28 April 2015, the Committee agreed to draw the attention of the Parliament to the following instruments—

Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141);

Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142).

2. The Committee’s recommendations in relation to the above instruments are set out below.

3. The Committee determined that it did not need to draw the Parliament’s attention to the instruments which are set out at the end of this report.

Points raised: instruments subject to negative procedure

Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) (Justice Committee)

4. This instrument provides additional transitional arrangements for members of the Firefighters’ Pension Scheme 1992 (as set out in Schedule 2 to the Firemen’s Pension Scheme Order 1992) (“the 1992 Scheme”) and the New Firefighters’ Pension Scheme (Scotland) 2006 (as set out in Schedule 1 to the Firefighters’ Pension Scheme (Scotland) Order 2007) (“the NFPS”) who transfer to the Firefighters’ Pension Scheme (Scotland) 2015 on 1 April 2015.

5. The instrument also makes other miscellaneous amendments to the Firefighters’ Pension Scheme (Scotland) Regulations 2015 (“the principal Regulations”), including further provision as to governance arrangements for the Scheme and provision setting contribution rates for members.

6. The Regulations are subject to the negative procedure and were laid before Parliament on 26 March 2015 before coming into force on 1 April 2015. The Scottish Government has provided a letter to the Presiding Officer, to explain the failure to comply with the “28 day rule”, as set out in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The correspondence (which also relates to SSI 2015/142) is reproduced at Annexe A.

7. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The Scottish Government responded with the relevant explanation and indicated that it would deal with identified errors by way of an amending instrument. The correspondence is reproduced at Annexe B.

8. The Committee draws the instrument to the Parliament’s attention on the following reporting grounds:

Ground (i)

9. Regulation 22(d), in inserting new paragraph 38 in Part 3C of Schedule 2 to the principal Regulations, appears to be defectively drafted. Paragraph 38(2)(b) determines the date on which a member is taken to join the new pension scheme where they decide not to appeal against refusal of an ill-health award under the 1992 Scheme. It does so with reference to “the expiry of 28 days from the date on which the member received the last of the documents which the authority is required to supply under rule H2(4) of the 1992 Scheme”.

10. Rule H2(4) of the 1992 Scheme as it applies in Scotland does not require the fire authority to provide any documents, although the equivalent rule in England and Wales does require the relevant fire authority to do so. In the absence of a requirement under the Scottish rules to supply documents, the provision does not give effect to the apparent policy objective of establishing the alternative of two dates on which a member is taken to join the new scheme, in circumstances where the member decides not to appeal against refusal of an ill-health award under the 1992 Scheme.

11. Regulation 26(i)(ii), which amends rule 9 of the NFPS regarding commutation of pensions, appears to be defectively drafted. The provision inserts new paragraph (1A) in rule 9. As acknowledged by the Scottish Government, the wording of the text to be inserted as new paragraph (1A) does not make sense. The meaning of the provision is accordingly unclear and it does not deliver the intended policy objective.

12. Regulation 34(b), insofar as it inserts new rule B1A(3)(b) in the 1992 Scheme, appears to be defectively drafted. As acknowledged by the Scottish Government, the wording of the text to be inserted as new rule B1A(3)(b) does not make sense. The meaning of the provision is accordingly unclear and it does not deliver the intended policy objective.

Ground (h)

13. The meaning of regulation 7, which amends regulation 59(2) of the principal Regulations, is lacking in clarity. The amendment does not indicate whether or not the sum referred to in new regulation 59(2)(ba) is to be included in the calculation referred to in regulation 59(2). The intended effect of new sub-paragraph (ba) is accordingly unclear.

14. The meaning of regulation 38(a)(i), which inserts new sub-paragraph (ab) in rule F2(1) of the 1992 Scheme, is lacking in clarity. The word “or” is included at the end of new sub-paragraph (ab), instead of the intended word “and”. The use of the word “or” rather than “and” indicates that the period of service mentioned in new sub-paragraph (ab) is to be regarded as an alternative to one or more of the other periods of service mentioned in sub-paragraphs (a), (b) and (c) of paragraph (1). However, the apparent policy intention is that each period of service mentioned in existing paragraph (1), including the period in new sub-paragraph (ab), is to be calculated cumulatively.

General ground

15. Regulation 9 amends regulation 65 of the principal Regulations by substituting paragraph (3). Substituted sub-paragraph (3)(a) refers to entitlement to payment of a lower tier ill-health pension under “rule 2(2) of the NFPS”. There are several rules numbered “2(2)” in various Parts of the NFPS, at least two of which refer to entitlement to lower tier ill-health pension. The omission of the words “of Part 3” after “rule 2(2)” is a drafting error which falls to be reported under the general ground.

16. Regulation 22(d) inserts paragraphs 26 and 28 in new Part 3B of Schedule 2 to the principal Regulations. Paragraph 26(3) refers to a bereavement pension payable to a spouse or civil partner under rule E8 of the 1992 Scheme, while paragraph 28(2) refers to a bereavement pension payable to an eligible child under rule E8A of the 1992 Scheme. These references have been included in error. Rule E8 of the 1992 Scheme as it has effect in Scotland does not make provision for bereavement pensions, while rule E8A has no effect in Scotland at all. The provisions have effect in England and Wales only. The references to bereavement pension in paragraphs 26(3) and 28(2) of the principal Regulations are accordingly unnecessary.

17. The instrument also includes the following minor drafting errors:

(a) In new paragraphs (6) to (8) of rule 1 of Part 11 of the NFPS, as inserted by regulation 28(a)(ii) of the instrument, the references to “paragraph 33” of Schedule 2 to the 2015 Regulations should be references to “paragraph 32” of that Schedule;

(b) In new paragraph (2A)(b) of rule 2 of Part 11 of the NFPS, as inserted by regulation 28(b)(ii) of the instrument, the reference to “paragraph 33(4)” of Schedule 2 to the 2015 Regulations should be a reference to “paragraph 32(4)” of that Schedule.

(c) In new rule B1A(3)(a) of the 1992 Scheme, as inserted by regulation 34(b) of the instrument, the reference to “paragraph (1)(a)” of rule B1 should be to “paragraph (1)(b)” of rule B1.

(d) In new rule B2A of the 1992 Scheme, as inserted by regulation 34(d) of the instrument:

(i) the reference to “regulation 65(4)(a)” of the 2015 Regulations should be to “regulation 65(3)(b)” of those Regulations; and

(ii) the reference to “rule B1A(3)(i)” of the 1992 Scheme should be to “rule B1A(3)(a)” of that Scheme.

(e) In new paragraph (1A) of rule B5D of the 1992 Scheme, as inserted by regulation 34(h)(ii) of the instrument, the reference to “paragraph (3)(i)” of rule B1A should be to “paragraph (3)(a)” of rule B1A.

(f) In new paragraphs (9), (10) and (12) of rule G1 of the 1992 Scheme, as inserted by regulation 39(a)(ii) of the instrument, the references to “paragraph 34” of Schedule 2 to the 2015 Regulations should be references to “paragraph 33” of that Schedule.

Correction of errors

18. The Scottish Government’s response to questions on the instrument from our legal advisers states that the Scottish Government “will deal with identified errors by way of an amending instrument (with retrospective effect as from 1st April 2015)”. The Committee however considers it unclear from the response which of the points raised by the legal advisers are accepted by the Scottish Government as identified errors.

19. The Committee accordingly urges the Government to amend all of the errors reported by the Committee under reporting grounds (i), (h) and the general reporting ground, with retrospective effect as from 1st April 2015.

Ground (j)

20. The instrument fails to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The instrument was laid on 26 March 2015 and came into force on 1 April 2015. The very short period of time between laying the instrument and it coming into force has meant that there was no opportunity for scrutiny of the instrument to take place prior to it coming into force.

21. The Committee considers that the breach of the 28-day rule in this case raises a broader issue about the timetabling of instruments which are prepared and laid in parallel with UK instruments which make similar provision. The Committee considers that there is a clear need for projects of this nature to be planned in a way which allows for the procedural requirements of both Parliaments to be met. The Committee considers it to be unsatisfactory that this has not been achieved in the present case. The Committee welcomes, however, the fact that the Minister for Parliamentary Business has undertaken in recent correspondence with the Committee to review the processes for laying instruments in these circumstances and to take steps to improve awareness within the UK Government of the challenges involved. The Committee considers that this work should be undertaken in early course, in order to avoid similar issues arising in the future.

Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) (Justice Committee)

22. This instrument provides, in implementation of the Public Service Pensions Act 2013, for a reformed pension scheme for the Police Service of Scotland.

23. The Regulations also outline transitional arrangements and protections for members of existing police pension schemes.

24. The Regulations are subject to the negative procedure and were laid before Parliament on 26 March 2015 before coming into force on 1 April 2015. The Scottish Government has provided a letter to the Presiding Officer, to explain the failure to comply with the “28 day rule”, as set out in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The correspondence (which also relates to SSI 2015/141) is reproduced at Annexe A.

25. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The correspondence is reproduced at Annexe C. The Scottish Government has acknowledged that there are various drafting errors in the instrument.

26. Regulation 66(3) deals with the basis on which a “selected medical practitioner” must decide that a member of the scheme is permanently medically unfit for engaging in any regular employment, and thus qualifies for an enhanced ill-health pension under the scheme. The practitioner must be of the opinion that (a) the member is unable to perform the ordinary duties of a member of the police force; (b) that inability is likely to continue until normal pension age or death; and (c) the member is unable to engage in regular employment otherwise than as a member of the police force.

27. The regulation does not require the practitioner to form any opinion as to whether the inability to engage in any regular employment otherwise than as a member of the police force is likely to continue until normal pension age or death (i.e. whether the inability is likely to be permanent).

28. Since regulation 66(3) does not appear to set out in full the basis on which a selected medical practitioner must decide that a member is permanently medically unfit for engaging in any regular employment, the Committee raised a query with the Scottish Government (reproduced at Annexe C). The Committee noted also that the equivalent provision (regulation 76(3)) of the counterpart England and Wales regulations (the Police Pensions Regulations 2015, SI 2015/445) does include, at sub-paragraph (d), a requirement that the practitioner is of the opinion that the inability to engage in regular employment is likely to continue until normal pension age or death.

29. The Scottish Government has confirmed that regulation 66(3) should have included an equivalent provision to that set out in sub-paragraph (d) of regulation 76(3) of the counterpart England and Wales regulations. Regulation 66(3) is accordingly defectively drafted. The Scottish Government intends to bring forward a further instrument to correct this error, with retrospective effect as from 1 April 2015.

30. The instrument also contains 6 minor drafting errors, as detailed below. Again, the Scottish Government intends to bring forward a further instrument to correct these errors, with appropriate retrospective effect.

31. The Committee draws the instrument to the Parliament’s attention on the following reporting grounds:

Ground (i)

32. The instrument’s drafting appears to be defective, in that regulation 66(3) does not include, in error, an equivalent to sub-paragraph (d) of regulation 76(3) of the Police Pensions Regulations 2015 (SI 2015/445), which introduce the counterpart police pension scheme in England and Wales. The effect of this error is that regulation 66(3) does not set out in full the basis on which a selected medical practitioner must decide that a member of the scheme is permanently medically unfit for engaging in any regular employment. The regulation should include a provision requiring the practitioner to decide whether the inability is likely to continue until normal pension age or death. The Scottish Government has agreed to address this point by way of an amending instrument, with retrospective effect as from 1 April 2015.

General ground

33. The instrument includes the following minor drafting errors:

a) In Regulation 132(1), the word “pension” should be added after “adult’s”.

b) In Regulation 137(5), the reference to “paragraph (3)” should be to “paragraph (4)”.

c) In Regulation 149(4)(a), the reference to “regulation 159” should be to “regulation 150”.

d) In Regulation 170(1), the reference to “regulation 174” should be to “regulation 166”.

e) In Regulation 198(3), the reference to “regulation 115” should be to “regulation 215”.

f) In Schedule 1, paragraph 1, the reference to “regulation 97” in sub-paragraph (d) of the definition of medical decision should be to “regulation 96”.

The Scottish Government has agreed to address these points by way of an amending instrument, with retrospective effect as from 1 April 2015.

Ground (j)

34. The instrument fails to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The instrument was laid on 26th March 2015 and came into force on 1st April 2015. The very short period of time between laying the instrument and it coming into force has meant that there was no opportunity for scrutiny of the instrument to take place prior to it coming into force.

35. The Committee considers that the breach of the 28-day rule in this case raises a broader issue about the timetabling of instruments which are prepared and laid in parallel with UK instruments which make similar provision. The Committee considers that there is a clear need for projects of this nature to be planned in a way which allows for the procedural requirements of both Parliaments to be met. The Committee considers it to be unsatisfactory that this has not been achieved in the present case. The Committee welcomes, however, the fact that the Minister for Parliamentary Business has undertaken in recent correspondence with the Committee to review the processes for laying instruments in these circumstances and to take steps to improve awareness within the UK Government of the challenges involved. The Committee considers that this work should be undertaken in early course, in order to avoid similar issues arising in the future.

No points raised

36. At its meeting on 28 April 2015, the Committee also considered the following instruments. The Committee determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Equal Opportunities

Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2015 [draft].

Infrastructure and Capital Investment

Enhanced Enforcement Areas Scheme (Scotland) Regulations 2015 [draft].

Justice

Firemen’s Pension Scheme (Amendment No. 2) (Scotland) Order 2015 (SSI 2015/173);

Police Pensions (Amendment) (Scotland) Regulations 2015 (SSI 2015/174).

Rural Affairs, Climate Change and Environment

Common Agricultural Policy Non-IACS Support Schemes (Appeals) (Scotland) Amendment Regulations 2015 (SSI 2015/167).

Annexe A

Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141); and

Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142);

Breach of laying requirements: Letter to presiding Officer

The above instruments were made on 24 March 2015 under the powers cited in the preamble in each case. They are being laid before the Scottish Parliament on 26 March 2015 and will come into force on 1 April 2015 as part of the public service pension reforms applicable from that date.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter sets out why it is necessary to lay the instruments less than 28 days before they are brought into force.

These instruments provide for the reform of Scotland’s police pension scheme and complete reform of Scotland’s firefighter pension scheme (all as required by the Public Service Pensions Act 2013). Occupational pensions policy is reserved and the requirements of the 2013 Act were set out and determined by the UK Government which took no account of Scotland’s circumstances in meeting that imposed timetable. The terms of the devolved public service pension schemes in Scotland broadly mirror those being introduced for the counterpart schemes in England and Wales. This has meant that Scottish Government officials could not complete the above instruments until final copies of the counterpart instruments were received. The counterpart regulations for the police scheme were laid at Westminster on 5 March and the firefighters set on 10 March. As a consequence, the above instruments could not be finalised and laid by 3 March – the date required to avoid breaching the 28-day rule.

On 9 March Mr Swinney, Deputy First Minister and Cabinet Secretary for Finance, Constitution and Economy, wrote to the Convener of the Delegated Powers and Law Reform Committee setting out that it would not be possible to meet the 28 day rule for certain instruments. I attach a copy of that letter for information. It has been necessary to seek further confirmation on a number of queries regarding the police scheme regulations, which unfortunately meant that those regulations could not be finalised for 19 March as originally estimated. In addition subsequent to Mr Swinney’s letter, the Department of Communities and Local Government, who have responsibility for the firefighters scheme in England, identified that a further short instrument was needed. That additional instrument is amongst those listed in the heading of this letter.

Reforming the five devolved public service pension schemes to a programme and timetable set by the UK Government has required 19 separate instruments and I can confirm that despite those constraints fifteen of those instruments complied with the 28-day rule.

Annexe B

Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141)

On 14 April 2015, the Scottish Government was asked:

1. Section 5(3) of the Public Service Pensions Act 2013 provides that in making regulations establishing a pension board “the responsible authority must have regard to the desirability of securing the effective and efficient governance and administration of the scheme and any connected scheme.”

The instrument establishes the Scottish Firefighters’ Pension Board. As it is not mentioned in the Policy Note, can the Scottish Government explain whether the Scottish Ministers, in establishing the pension board, have had regard to the desirability of securing the effective and efficient governance and administration of the scheme?

2. Regulation 7 of the instrument amends regulation 59 of the principal 2015 Regulations by inserting new paragraph (2)(ba). Regulation 59(2) of those Regulations provides for the annual rate of retirement pension to be calculated by adding the total of paragraphs (a), (b) and (c). Is paragraph (ba) to be included in this total? If so, please explain where that intention is given effect, or alternatively what the intended effect of the insertion of paragraph (ba) is.

3. Regulation 9 amends regulation 65 of the principal 2015 Regulations by substituting paragraph (3). Substituted sub-paragraph (3)(a) refers to entitlement to payment of a lower tier ill-health pension under “rule 2(2) of the NFPS”. There are a number of rules numbered “2(2)” in various Parts of the NFPS. In the absence of specifying which “rule 2(2)” is being referred to, does the Scottish Government consider the meaning of the provision to be sufficiently clear?

4. Regulation 22(d) inserts new Part 3A in Schedule 2 to the principal 2015 Regulations. Paragraphs 22 and 23 of the new Part 3A refer to “normal pension age under the NFPS”. Can the Scottish Government explain how normal pension age under the NFPS is to be determined, as there appears to be no definition of normal pension age in either the NFPS or the principal 2015 Regulations as amended?

5. In new Part 3B of Schedule 2 to the principal 2015 Regulations (inserted by regulation 22(d) of the instrument), paragraph 26(3) provides that a surviving spouse and civil partner in certain circumstances are not entitled to receive “a bereavement pension under rule E8 of the 1992 Scheme”. Rule E8 of the 1992 Scheme as it applies in Scotland does not appear to make provision about bereavement pensions. Instead it provides for surviving spouses and civil partners’ pensions and allowances to be increased during the first 13 weeks for which they are payable.

Please therefore explain what the effect of paragraph 26(3) of Schedule 2 of the principal 2015 Regulations as amended by this instrument is.

6. In new Part 3B of Schedule 2 to the principal 2015 Regulations (inserted by regulation 22(d) of the instrument), paragraph 28(2) provides that a bereavement pension (for an eligible child) is not payable under rule E8A of the 1992 Scheme. Rule E8A does not appear to extend to Scotland. Please therefore explain the effect of paragraph 28(2) of Schedule 2 as amended by this instrument.

7. In new Part 3C of Schedule 2 to the principal 2015 Regulations (inserted by regulation 22(d) of the instrument), paragraph 38(2)(b) determines the date on which a member is taken to join the scheme (where they decide not to appeal against refusal of an ill-health award) with reference to “the expiry of 28 days from the date on which the member received the last of the documents which the authority is required to supply under rule H2(4) of the 1992 Scheme”.

Rule H2(4) of the 1992 Scheme as it applies in Scotland does not appear to require the authority to provide any documents.

Please therefore explain what the effect of amended paragraph 38(2)(b) of Schedule 2 to the principal 2015 Regulations is, and in particular how the joining date is to be determined in circumstances in which the member decides not to appeal.

8. Part 3 of the instrument (regulations 24 to 31) amends the NFPS as set out in Schedule 1 to the Firefighters’ Pension Scheme (S) Order 2007. Throughout Part 3, the text to be inserted in the NFPS refers to “the 2015 Regulations” and “the 2015 Scheme”. However no definition of either “the 2015 Regulations” or “the 2015 Scheme” appears to be included in the NFPS.

What does the Scottish Government consider to be the effect of the apparent omission of definitions of “the 2015 Regulations” and “the 2015 Scheme” from the NFPS? Is any corrective action proposed?

9. Similarly, the text to be inserted in the NFPS (by virtue of the amendments in regulations 24 to 31 of this instrument) refers at various points to a “tapered protection member”, a “full protection member” and a “protected member” of the NFPS. No definition of these terms appears to be included in the NFPS.

What does the Scottish Government consider to be the effect of the apparent omission of definitions of these terms, and is any corrective action proposed?

10. Regulation 26(i) of the instrument amends rule 9 of the NFPS (commutation: general). Sub-paragraph (ii) inserts new paragraph (1A) in rule 9. The wording of new paragraph (1A) does not appear to make sense. Has some text been omitted and if so, is any corrective action proposed?

11. (a) Regulation 28(a)(ii) of the instrument amends rule 1 of Part 11 of the NFPS by inserting new paragraphs (6) to (8) in that rule. Each of these paragraphs refers to “paragraph 33” of Schedule 2 to the 2015 Regulations. Should the references be to “regulation 32” of Schedule 2 to the 2015 Regulations, and is any corrective action proposed?;

(b) Regulation 28(b)(ii) amends rule 2 of Part 11 of the NFPS by inserting new paragraph (2A) in that rule. New paragraph 2A(b) refers to “paragraph 33(4)” of Schedule 2 to the 2015 Regulations. Should the reference be to “regulation 32(4)” of Schedule 2 to the 2015 Regulations, and is any corrective action proposed?

12. Regulation 34(b) of the instrument inserts new rule B1A in Schedule 2 to the Firemen’s Pension Scheme Order 1992 (“the 1992 Scheme”).

(a) New rule B1A(3)(a) refers to “the reference to the “pensionable service” in paragraph (1)(a) [of rule B1]”. Paragraph (1)(a) of rule B1 does not refer to “pensionable service”. Should the reference be to paragraph (1)(b) of rule B1 instead, and is any corrective action proposed?

(b) The wording of new rule B1A(3)(b) does not appear to make sense. Has some text been omitted and if so, is any corrective action proposed?

13. Regulation 34(d) of the instrument inserts new rule B2A in the 1992 Scheme.

(a) Should the reference in that rule to “regulation 65(4)(a)… of the 2015 Regulations” be to “regulation 65(3)(b)” of those Regulations? If so, is any corrective action proposed?;

(b) Should the reference in that rule to “rule B1A(3)(i)” be to “rule B1A(3)(a)” and if so, is any corrective action proposed?

14. Regulation 34(h)(ii) of the instrument inserts new paragraph (1A) in rule B5D of the 1992 Scheme. New paragraph (1A) refers to “paragraph (3)(i) of rule B1A”. Should the reference be to “paragraph (3)(a) of rule B1A”, and is any corrective action proposed?

15. Regulation 38(a)(i) of the instrument inserts new sub-paragraph (ab) in rule F2(1) of the 1992 Scheme. The word “or” is included at the end of new sub-paragraph (ab). Existing sub-paragraphs (a) and (b) of rule F2(1) are followed by the word “and”, so it appears that each period of service mentioned in existing paragraph (1) is intended to be calculated cumulatively. Is the period of service mentioned in new sub-paragraph (ab) also intended to be cumulative, or is it to be included as an alternative to one or more of the other periods of service mentioned in sub-paragraphs (a), (b) and (c) of paragraph (1)? Please explain whether the Scottish Government considers the meaning of the provision to be clear, and why.

16. Regulation 39(a)(ii) of the instrument inserts new paragraphs (9) to (14) in rule G1 of the 1992 Scheme. New paragraphs (9), (10) and (12) each refer to “paragraph 34” of Schedule 2 to the 2015 Regulations. Should the references be to “regulation 33” of Schedule 2 to the 2015 Regulations, and is any corrective action proposed?

The Scottish Government responded as follows:

1. The Scottish Ministers have, in making these Regulations, had regard to the desirability of securing the effective and efficient governance and administration of the scheme and any connected scheme. It is not the practice to make reference to fulfilment of this requirement in the preamble of a relevant instrument.

2. We can confirm that it is intended that the sum referred to in paragraph (ba) is to be included in the calculation. Whilst this should have been made clear, it is not thought that regulation 59 could be read so as to produce any other result. The drafting approach follows that in the Firefighters’ Pension Scheme (England) (Transitional and Consequential Provisions) Regulations 2015 (S.I. 2015/589).

3. The reference should have been to rule 2(2) “of Part 3”. In the absence of any other rule 2(2) in the NFPS dealing with lower tier ill-health pension, it is not considered that the absence of a reference to the applicable Part could cause difficulties.

4. The references to “normal pension age” are being inserted in an instrument made under the Public Service Pensions Act 2013. The phrase will therefore have the meaning set out in that Act (see sections 10(5) and 37). Normal pension age under the NFPS is 60.

5. What is now sub-paragraph (3) in paragraph 26 should not have been included since, as indicated in the question, rule E8 as it has effect in Scotland does not deal with bereavement pensions. The database which was being looked at to establish the current state of the 1992 Order incorrectly lists “England, Wales and Scotland” over the version of rule E8 which applies to Scotland only. The unnecessary paragraph 26(3) causes no harm and will simply have no legal effect. Increases payable under regulation E8 as it has effect in Scotland will be caught by the terms of paragraph 26(2).

6. Similarly, paragraph 28(2) should not have included any reference to rule E8A. The reference is, however, harmless on the basis that no “bereavement pensions” are payable under the 1992 Order as it has effect in Scotland.

7. We agree that the text of paragraph 38(2)(b) does not match up with the terms of rule H2(4) of the 1992 Order. The equivalent provision in S.I. 2015/589 makes reference to “rule H2A” and we are taking matters up with the UK Department for Communities and Local Government as we cannot immediately trace a rule bearing that number in the 1992 Order.

8. Definitions of “the 2015 Regulations” and “the 2015 Scheme” were inserted in rule 2(1) of the NFPS (with effect from 31st March 2015) by article 17(2)(a) of the Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (S.S.I. 2015/143).

9. Definitions of “full protection member” and “tapered protection member” were inserted in rule 2(1) of the NFPS (again with effect from 31st March 2015) by article 17(2)(b) and (i) of S.S.I. 2015/143. It is not thought that “protected member” needs defined.

10. We agree that the wording of new paragraph (1A) does not make sense. We think it likely that the words “may commute a portion of it for a lump sum” should simply be deleted, but are taking this up with DCLG.

11. The references should have been to paragraphs 32 and 32(4) respectively. The text follows that in S.I. 2015/589.

12(a). The reference should have been to rule B1(1)(b). The same error appears in S.I. 2015/589.

12(b). The wording follows that in S.I. 2015/589. As we agree that it does not make sense, we are checking with DCLG as to what the wording should have been.

13(a). Regulation 65(3)(b) should have been referred to.

13(b). The reference should have been to rule B1A(3)(a). The same error appears in S.I. 2015/589.

14. This reference should also have been to rule B1A(3)(a) and again the same error appears in S.I. 2015/589.

15. The word “or” should have read “and”. The text here matches that in S.I. 2015/589.

16. The references should have been to paragraph 33. The same errors are in S.I. 2015/589.

The Scottish Government will deal will identified errors by way of an amending instrument (with retrospective effect as from 1st April 2015).

Annexe C

Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142)

On 15 April 2015, the Scottish Government was asked:

1. Regulation 66(3) sets out the basis upon which the selected medical practitioner must decide that a member is permanently medically unfit for engaging in any regular employment. The practitioner must be of the opinion that (a) the member is unable to perform the ordinary duties of a member of the police force; (b) that inability is likely to continue until normal pension age or death; and (c) the member is unable to engage in regular employment otherwise than as a member of the police force. It does not appear that the practitioner is required to form any opinion as to whether the member is permanently unable to engage in regular employment. We note that it is a requirement of the equivalent provision of the England and Wales Regulations that the practitioner is of the opinion that the inability to engage in regular employment is likely to continue until normal pension age or death. Does the Scottish Government consider that regulation 66(3) adequately achieves the policy intention?

2. Regulation 136(3) states that “if an eligible child’s pension is payable in respect of one or two eligible children, the annual rate of eligible child’s pension is equal to 50% of the annual rate of the corresponding surviving adult’s pension”. Is it intended that this annual rate is payable in respect of each child, or in respect of both children together? We note that regulation 136(4), which relates to an eligible child’s pension payable in respect of 3 or more eligible children, makes clear that the relevant annual rate is payable to each eligible child. Does the Scottish Government consider the meaning of the provision in regulation 136(3) to be sufficiently clear?

3. Regulation 2 (Interpretation) defines “description of deferred earned pension” as “(a) deferred standard earned pension; (b) deferred club transfer earned pension;”. We note that the various related definitions of “description of pension” in Regulation 2 are all phrased in the alternative. Is it also the intention that the subparagraphs in this definition are to be read as alternatives, or is some other reading intended? Does the Scottish Government consider the definition to be sufficiently clear?

4. Regulation 132 states that the regulation will apply where “a surviving adult’s becomes payable to a surviving adult who is more than 12 years younger than the member”. Should the word “pension” be added after “adult’s”? Is any corrective action proposed?

5. In Regulation 137(5), should the reference to “paragraph (3)” be to “paragraph (4)” instead? Is any corrective action proposed?

6. In Regulation 149(4)(a), should the reference to “regulation 159” be to “regulation 150” instead? Is any corrective action proposed?

7. In Regulation 170(1), should the reference to “regulation 174” be to “regulation 166” instead? Is any corrective action proposed?

8. Regulation 193(5) defines “the small pensions commutation maximum” as meaning “the amount that is permitted to be commuted having regard to the commutation provisions that apply in the circumstances”. Since the relevant commutation provisions appear to apply a maximum amount that may be commuted, it appears that the meaning of the definition would be clearer if it referred to the “the maximum amount that is permitted to be commuted having regard to the commutation provisions that apply in the circumstances”. Does the Scottish Government consider that the definition is sufficiently clear?

9. In Regulation 198(3), should the reference to “regulation 115” be to “regulation 215” instead? Is any corrective action proposed?

10. In Schedule 1, in paragraph 1 (Interpretation), should the reference to regulation 97 in sub-paragraph (d) of the definition of “medical decision” be to regulation 96 instead? Is any corrective action proposed?

11. Schedule 4, paragraph 1 (Interpretation) does not give a definition of the term “tapered protection closing date”, although the term is used in the definitions of “closing date” and “transition date”. “Tapered protection closing date” is defined in paragraph 2 (Meaning of tapered protection closing date), however there is no cross-reference to this provision in paragraph 1. Does the Scottish Government consider that the definitions of “closing date” and “transition date” are sufficiently clear?

The Scottish Government responded as follows:

1. Regulation 66(3) should have included an equivalent to sub-paragraph (d) of regulation 76(3) of the Police Pensions Regulations 2015 (S.I. 2015/445).

2. We do consider the meaning of regulation 136(3) to be sufficiently clear. In the event of there being 2 eligible children, each will be entitled to a pension equal to 50% of the annual rate of the corresponding surviving adult’s pension. The result is in line with regulation 136(4) under which the total amount payable as child’s pensions will equate to the corresponding surviving adult’s pension.

3. We do not consider that the absence of an “or” between the paragraphs in the definition of “description of deferred earned pension” will lead to any difficulties in interpretation.

4. The word “pension” has indeed been omitted.

5. The reference should have been to paragraph (4). There is a similar error in regulation 147(5) of S.I. 2015/445.

6. The reference should have been to regulation 150.

7. The reference should have been to regulation 166. This is not, however, of any consequence legally since the reference appears only in the passage describing the content of a regulation being referred to. The error has flowed from the inaccurate title given to regulation 185 of S.I. 2015/445.

8. We do consider the definition to be sufficiently clear. What is “permitted” to be commuted is the maximum amount which can be commuted.

9. The reference should have been to regulation 215.

10. The reference should have been to regulation 96. There is a similar error in the equivalent provision of S.I. 2015/445..

11. None of the definitions in paragraph 1 of Schedule 4 proceed simply by referring forward to another paragraph in the Schedule. Given that, we do not consider that there was any necessity to cross-refer in paragraph 1 to the definition provided within paragraph 2. There is nothing in paragraph 2 to suggest that the definition provided does not apply throughout the Schedule.

The Scottish Government will address points 1, 4 to 7, 9 and 10 above by way of an amending instrument (with retrospective effect as from 1st April 2015).


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

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