Pension Schemes Act 2015 (Judicial Pensions) (Consequential Provision) Regulations 2017

Baroness Buscombe Excerpts

Tuesday 21st February 2017 Grand Committee

[Baroness Buscombe]

Moved by

That the Grand Committee do consider the Pension Schemes Act 2015 (Judicial Pensions) (Consequential Provision) Regulations 2017.

[Baroness Buscombe (Con)]

My Lords, the instrument is relatively concise and I can also be brief.

The purpose of the draft regulations is to make provision to pave the way for the creation of a suitable pension scheme for eligible fee-paid judges, to mirror the pension scheme for salaried judges established by the Judicial Pensions and Retirement Act 1993. This is required following the court’s decision in the case of O’Brien v Ministry of Justice.

The background is as follows. Following the case of O’Brien v MoJ, and subsequent decisions, it is now established law that a lack of pension and other specified benefits amounted to unlawful, less favourable treatment of some fee-paid judicial office holders in comparison to salaried judges doing the same or broadly similar work.

The Ministry of Justice made a commitment to implement a pension scheme for these fee-paid judges. This commitment was honoured for future service, subject to transitional protection, by the Judicial Pensions Regulations 2015. However, a new scheme is required as the remedy in respect of service from 7 April 2000, the date when the part-time work directive ought to have been transposed into UK law. The Ministry of Justice intends to create a new scheme, using the power created by Section 78 of the Pension Schemes Act 2015, which inserted a new Section 18A into the Judicial Pensions and Retirement Act 1993. However, that provision alone is not enough to enable a suitable fee-paid scheme to be created, as I will now explain.

The Public Service Pensions Act 2013 enacted the Government’s policy on public service pensions. As part of that reform, Section 30 of the 2013 Act placed certain restrictions on the content and operation of public service pensions, subject to an exception for pre-existing pension schemes. At the time of the 2013 Act, a need to permit the making of a new but historic scheme of this nature was not anticipated. These regulations seek to make provision by amending Section 30 of the Public Service Pensions Act so that it will not apply to the new fee-paid judicial pension scheme, so removing a barrier to the creation of the scheme, which will be established through separate regulations, subject to the outcome of the consultation process and parliamentary approval.

In conclusion, I hope that noble Lords will welcome these regulations to make the necessary amendment to make provision for the creation of the fee-paid judicial pension scheme. I therefore commend them to the House.

[Lord Beecham (Lab)]

My Lords—or perhaps I should say, “My Ladies”—I ought to declare an interest, a paternal interest, because my daughter sits as a part-time deputy district judge and I suspect that she will be one of those affected by these regulations. There is good reason to commend the Government’s decision to bring this order, but I want to touch on the wider issue of the judiciary and its position.

As understand it, there is a significant degree of unhappiness among the judiciary at all levels about their conditions. Some 36% of judges are apparently considering leaving the judicial bench over the next five years. That reflects something like 47% of High Court judges, 41% of members of the Court of Appeal and 40% of those on circuit, which represents a significant number. While the Government are here redressing something of an injustice to those affected by what had been the position in relation to pensions, there seems to be a wider concern. I am not expecting the Minister to respond in detail to this, but I should be grateful if she would take back to the department to inquire what, if anything, the Government are doing to ensure that able people are attracted from the Bar to serve in a judicial capacity and to remain connected to the judiciary. There seems to be concern in the legal world that we may run short of competent, high-flying lawyers who are willing and able to take on judicial office. Given the great record and traditions of the judiciary in this country, it would be most unfortunate if that proved to be the case.

As I say, I am not expecting the noble Baroness to answer the somewhat tangential question tonight, but this is an opportunity to raise it, and I hope that something is already going on in the MoJ, in conjunction with senior judges, to look into this. Perhaps in due course she can write to me to explain what, if anything, is happening and when there might be a resolution of what seems to be a growing issue. However, I am, of course, happy to commend the Government for bringing forward this order and we, as an Opposition, support it.

[Baroness Buscombe]

First, I thank the noble Lord opposite for the points that he made. His interest in this matter—through his daughter—is, in a sense, welcome. She is close to the situation that he referred to with regard to the wider issue of how we encourage—as the noble Lord said—“competent, willing and able” lawyers to take on the role and remain in judicial office. I assure the noble Lord that we take that issue seriously and will write to the noble Lord with a response.

On the draft regulation, this is a reasonable amendment that serves to honour the Government’s commitment to implement a pension scheme for the fee-paid judges service from 7 April 2000 that will mirror the pension scheme open to salaried judges at that time. These regulations are an essential legislative step to allow us to honour that commitment. I beg to move.

Motion agreed.