High price to pay for this bill

The Public Service Pensions Bill could lead to constitutional corruption if it is not amended

Jonathan Waters

Last September the Public Service Pensions Bill was presented to Parliament with Government guarantees that it represents a ‘generous deal’, fixing pensions for 25 years.

Squirrelled away in the detailed provisions, the bill contains a breathtakingly wide-reaching ‘Henry VIII’ clause gives this and future governments unprecedented powers to make unilateral and retrospective changes that could adversely affect hundreds of thousands of people.

In sweeping away safeguards in the Pensions Act 1995 and Superannuation Act 1972, the bill has the potential to adversely affect accrued pension rights. This is likely to result in legal challenges, including under the Human Rights Act 1998.

The British Medical Association (BMA) represents doctors across the UK. It has a membership of more than 150,000 and is leading the charge in resisting these potentially catastrophic changes and campaigning for the Henry VIII clause to be removed or at least subject to significantly tighter safeguards.

A Henry VIII clause allows the Government to repeal or amend legislation by way of delegated (secondary) legislation without Parliamentary debate. These clauses are counter-democratic and undermine Parliamentary sovereignty.

Support for this view is found at the highest level. Henry VIII clauses have been criticised as a “constitutional oddity” that must be “limited, exercisable only for specific purposes and subject to adequate Parliamentary scrutiny” (House of Lords Constitution Committee, Sixth Report on the Public Bodies Bill, 2010). At the Lord Mayors’ annual dinner for judges in July 2010, Lord Chief Justice Judge recommended that they be “confined to the dustbin of history”.

In its recent report on the bill, the Delegated Powers and Regulatory Reform Committee agreed that the clause should be limited.

The bill’s sole safeguard provides limited opportunity to place changes before Parliament before they are imposed. The affirmative resolution procedure, required to amend primary legislation or introduce a retrospective change that has a significantly adverse impact on individual rights, appears to be little more than a rubber-stamping exercise and will not provide an adequate safeguard against constitutional corruption.

This is because: the process is effectively useless – an instrument has not been struck down since 1969; there is no meaningful scrutiny; and there is only one ‘all or nothing’ vote, with no opportunity to provide amendments.

The BMA will continue to lobby for the changes required to avoid significant constitutional corruption and potentially catastrophic consequences for thousands of public service employees.

Without these changes the Government may find it is a case of act in haste and repent at leisure as it faces a substantial judicial review/Human Rights Act claim.

Alex Fox, Manches head of litigation/arbitration, helped with the article