Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Contributions) (Amendment) Regulations 2020

Lord McNicol of West Kilbride Excerpts

Monday 23rd March 2020 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I thank the noble Lord for his comprehensive introduction. We are all understudies now—I had a crash course on judicial pensions over the weekend. Learning up on O’Brien, McCloud and Miller has not been a happy experience for me or, I suspect, for the Ministry of Justice over a period of years. Being very familiar with higher education pensions, I understand that there are a lot of bear traps in the whole area of pensions and that people feel very strongly about them because they secure their future.

I do not need to pick over the individual details of the instrument—these regulations are very clear and they do the right thing—but this is an opportunity to kick the tyres slightly on the matter of policy. Following the Miller case, the Ministry of Justice is clearly going to have to set aside a certain sum to make sure that the pensions are funded and are non-discriminatory. There have been a lot of estimates, ranging from £300 million to £1 billion, and it would be useful to know whether the noble Lord is possessed of any idea of how much this is going to cost as a consequence of that case.

My second question is about the policy on judicial diversity. The Miller case was all about discrimination, but we are trying to create greater judicial diversity and that goes to the key issue of how pensions operate so that they do not discriminate against people who are part-time or those who enter the scheme late and so on. The July 2019 figures show that just 7% of court judges are BAME and 32% are women. Is it not time that we set clear targets for better gender balance and BAME balance and gave those targets real teeth?

[Lord McNicol of West Kilbride (Lab)]

I echo the thanks to the Minister for his detailed explanation, and I support and share the comments of the noble Lord, Lord Clement-Jones. We understand the need for these regulations to be passed and we will not oppose them.

The noble Lord, Lord Clement-Jones, touched on the Miller case; I am going to consider the McCloud judgment. Can the Minister confirm when the McCloud judgment will be implemented? We understand that it is a complicated matter, but the court passed the judgment years ago and the Ministry needs to work to resolve this long-standing issue.

In the judgment, the judiciary were able to hold that the particular legislation was unlawful because the tribunal found that the provisions were discriminatory on the grounds that younger judges are more often women and members of the BAME community. Although those groups are still underrepresented, it did reflect more heavily on them.

The Government need to address this issue because we have a significant shortage of judges, and especially High Court judges. A number of senior lawyers and members of the judiciary are not applying for those High Court judge jobs, and part of that is because of the changes to the pensions regulations. We are seeing more of an effect there than on other judicial positions. One of the reasons holding people back from applying is that, until there is full clarity, they do not know what the full implications on their pensions will be. I am looking for a little clarity on that.

The Minister also mentioned the consultation. From the Explanatory Memorandum, I was not clear how many individuals or organisations had responded to that consultation. Again, a bit of detail on that would be appreciated.

[Lord Parkinson of Whitley Bay]

I thank both noble Lords for their contributions to this debate and their support for the regulations. There are a number of complex and interwoven cases to look through. It might be more helpful if I write to the noble Lord about the Miller case, rather than pontificate on it.

The noble Lord, Lord Clement-Jones, asked important questions about judicial diversity, which the Government are very keen to encourage. The Ministry of Justice is working very closely with the Lord Chief Justice, the chairman of the Judicial Appointments Commission and other members of the Judicial Diversity Forum to consider all the practical actions that we can take to have a positive impact on judicial diversity. In the five years from 2014 to 2019, there have been some small but important improvements. The number of women increased from 24% to 32% in the courts and from 43% to 46% in tribunals, as well as from 18% to 27% in the High Court and to 23% in the Court of Appeal. There has also been a small increase in the number of black and minority ethnic judges from 6% to 7% in the courts and from 9% to 11% in tribunals, although the proportion of BAME judges has fallen in the High Court. So that is some progress, but there is clearly still more to do.

The noble Lord, Lord Clement-Jones, also asked why we do not therefore introduce targets to accelerate the process. That is not something that the Government are considering. It is important for the quality, independence and impartiality of our judges that the Ministry of Justice always appoints, and is always seen to appoint, the most talented candidates on merit. While the Ministry of Justice can certainly do more to improve judicial diversity, we do not think that targets are the right approach. It is also important that we improve the diversity of those working across our justice system, including the diversity of entrants into the legal profession in the first place and making sure that they have the support they need to progress through their careers.

The noble Lord, Lord McNicol, asked when the McCloud judgment might be remedied. The case is now with the employment tribunal to determine an appropriate remedy. The next hearings in the employment tribunal are on injury to feelings, scheduled for June this year, and then on financial losses, in October this year. Those hearings should settle the detail of how past discrimination will be rectified. MoJ officials are working hard on engaging with the employment tribunal on this process, but meanwhile, and more generally, the Treasury is developing a central remedy to address the discrimination for both claimants and non-claimants for the wider public service schemes, on which it aims to consult in the late spring of this year. The Ministry of Justice is aiming to mirror the Treasury timetable, with a consultation also planned for this spring.

The noble Lord, Lord McNicol, also asked who took part in the consultation. The Ministry of Justice received 10 responses to the consultation from representative judicial organisations and individual salaried and fee-paid court and tribunal judges.

Other than the point about the Miller case, I think I have addressed all the issues that were raised by noble Lords, but if not I am very happy to write on those points as well. I hope that noble Lords will agree that these regulations are a necessary interim measure to prevent a lapse in arrangements for member contribution rates and to ensure the continuing effective operation of the judicial pension scheme. I therefore commend this draft to the Committee.