Appendix 1
Draft Instrument: memorandum from the Cabinet
Office
Draft Ministerial and other Salaries Order
2008
This memorandum is submitted by the Cabinet Office
to the Committee to assist the Committee in its consideration
of the Order.
On reflection, and notwithstanding the position as
set out in paragraph 3 of the Explanatory Memorandum which accompanies
the Order, we accept that the better argument is that the Order
does indeed have retrospective effect. We acknowledge that the
effect of the Order is to increase the annual amounts, or where
applicable the maximum and minimum amounts of salary (albeit of
existing paid Ministers only), with effect from 1st
April and 1st November 2007 over and above the increases
which arise automatically on the operation of the formula in section
1A of the Ministerial and other Salaries Act 1975. And whilst
the additional payments to Ministers resulting from these increases
are of course only paid prospectively, we recognise that the better
argument is that a wholly prospective Order would have characterised
those increases as a lump sum payable to Ministers on the coming
into force of the Order (rather than as percentage increases having
effect from the above past periods).
The general presumption is of course that delegated
powers in enactments are not capable of being exercised retrospectively.
We consider that there are a number of factors which weigh against
that presumption in this case.
Firstly, some backdating of salary increases is now
common practice. This is the case particularly in the public sector,
as a result of the timings of negotiated pay settlements. This
practice has been reflected in previous Orders concerning Ministerial
salaries - the Ministerial and other Salaries Order 2001[1]
and the Attorney General's Salary Order 2000[2],
neither of which was drawn to the attention of both Houses by
the Committee.
Secondly, we fully accept that if the Order were
to have decreased salaries retrospectively that would have been
outside the powers conferred in the Act. The provision in this
Order however, is for limited salary increases. Therefore, no
Minister will suffer a detriment as a result of the Order. And
indeed Ministers have an expectation that they will receive these
increases as they were announced in the Written Ministerial Statement
following the publication on 16th January 2008 of the
Report of the Senior Salaries Review Body (SSRB) on Parliamentary
pay, pensions and allowances.
Finally, the Order provides expressly that any increases
are only capable of being paid to those Ministers who hold a paid
office at the time when the Order comes into force. This ensures
that any additional salary which is paid falls within the salary
limits set down in Schedule 1 to the Act.
For the above reasons we consider that to the extent
that the Order is retrospective this is within the powers of section
1B of the Act.
If the Committee were minded to draw the Order to
the attention of both Houses on the ground that it purports to
have retrospective effect where the parent statute confers no
express authority so to provide, we would not wish to take advantage
of any further opportunity to provide explanation.
Cabinet Office
6 June 2008
1 S.I.No.3502. Back
2 S.I.No.1827. Back
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