The Government has now published its review.
Moving from the Treasury, which reigns in spending, to the Department for Work and Pensions, which spends more than any other department, is going to be a bit of a shock for the new Secretary of State, David Gauke.
There will be lots to do. But top of his his list has to be obeying the law.
Although we have had an election the law still applies during that period. And since 7 May the Secretary of State for Work and Pensions has been breaking it. Specifically section 27(2) of the Pensions Act 2014.
Until 11 June the law breaker was Damian Green - now promoted to First Secretary of State (for Game of Thrones fans think the Hand of May). From 4pm on 11 June it was David Gauke.
Review of state pension age
Section 27 of Pensions Act 2014 is headed 'Periodic review of rules about pensionable age' and says the Secretary of State must review state pension age from time to time and publish a report on the outcome of that review.
The first review under that section was done by the former CBI Director General John Cridland and was published on 23 May along with a parallel review by the Government Actuary.
John Cridland recommended bringing forward the rise in the pension age to 68. At the moment it is scheduled for 2044 to 2046 affecting people born from 1977. Cridland recommended bringing that rise forward by seven years to start in 2037 and end in 2039. That would affect people born in 1970 and later - those who are now in their later 40s.
The Government Actuary took a longer view and while not actually recommending anything, looked ahead to a possible rise to 69 in 2040-42 affecting people born from 1972 who are aged 45 and younger now. And then to the age of 70 by 2054-56 which would affect people born from 1985 who are in their early thirties now.
The law being broken
The Act was clear that the Secretary of State had to publish a report in response to that review. And it set out a timetable to do so. In a clause designed to prevent a government hesitating or putting off a decision that will be politically very difficult s.27(2) says unequivocally "The first report must be published before 7 May 2017."
It wasn't. So for each day from 7 May the Secretary of State was breaking the law. Damian Green broke it on each of 36 days until his term of office ended. And David Gauke is now breaking it every day that passes from 11 June.
Reasons given
The excuse from the Department for Work and Pensions was that on 23 April Parliament voted for a General Election and Parliament was subsequently dissolved on 3 May. So there was no Parliament - though there were of course Ministers - to consider such a report published before 7 May.
It said that a long term policy like this could only be decided by the next Government.
It also claimed that what is called 'purdah' prevented it being published. Purdah is the convention that once an election has been called no new policies are announced and civil servants do not carry out anything but routine work.
However, in another case on 27 April the High Court made it clear that purdah was merely a convention and did not override legal duties. It instructed the Government to publish a long-awaited report on pollution which the government had tried to defer until after the election. The Government obeyed.
Legal action
Two legal attempts have been made to force the publication of the report on state pension age. Neither has succeeded. The most thorough response was from the Government Legal Department on 26 May which said:
- The Secretary of State did not consider he had breached the statutory provision
- The report could not be completed now that an election was under way
- Even if forced to respond the Secretary of State could fulfil his duty by a short report saying 'yes' or 'no' or 'some changes may be appropriate' which would be a pointless exercise.
The letter warned that any proceedings would be resisted. None were in fact pursued.
Imperative
But now there is a new Government and a new parliament there is no excuse for not complying with the law and issuing a full and reasoned report.
David Gauke must do so promptly as he will be in breach of the law every day until he does.
12 June 2017
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