Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 20th March 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the statutory instrument before us today amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the fee-paid judicial pension scheme 2017. The statutory instrument was approved in the other place on 21 February.

At present, the fee-paid judicial pension scheme provides only for eligible fee-paid judicial service on or after 7 April 2000. The main purpose of the statutory instrument is to provide pension benefits for certain eligible fee-paid service before 7 April 2000. The situation arises as a result of three cases.

The first was O’Brien 1 in 2013, when it was decided that fee-paid judges were workers and therefore eligible for pension benefits that mirrored those of salaried judges under the then judicial pension scheme. That was from 7 April 2000, the date when the relevant EU regulation was transposed into UK law. It led to the 2017 regulations.

In 2018, in O’Brien 2, the European Court of Justice found that eligible fee-paid judicial service prior to 7 April 2000 should also be taken into account for the purposes of calculating pension benefits. If one was already a judge on 7 April 2000, service before that date should count towards the pension.

In 2019, in the Miller case, the UK Supreme Court found that the time limit for fee-paid pension entitlement claims runs from the date on which the judge retired from judicial service rather than the date on which they left the fee-paid office concerned. You had until your ultimate retirement date to make the relevant claim.

Although we now have a new judicial pension scheme, these regulations ensure that the judgments I have just referred to are fully implemented and that the judges concerned get pension benefits in respect of their historical fee-paid judicial service.

The detail of the regulations is, if I may say so, impenetrably complex, as a result of different pension arrangements over the years. There was a different arrangement in force between 1981 and 1995, and then again between 1995 and a later date. These regulations deal with the pre-1995 provisions as well as the post-1995 situation. They make certain changes or additions to eligible offices and provide for a way of dealing with small amounts; one can commute to have a lump-sum payment, if there is just a small pension entitlement; they provide for the purchase of additional benefits; they apply to various techniques for reconciling various amounts outstanding; and they correct certain minor errors. These are very detailed matters indeed, but the essential purpose is to make sure that the pensions to which those judges are entitled are enshrined in the statutory instrument.

There was a consultation in 2020, and the responses received were broadly supportive. Officials have been in close touch with the devolved Administrations in Scotland, Northern Ireland and Wales, which have been kept apprised of developments, and, as I said, there has been close consultation with the judges affected.

In closing, I will make two points. Questions have been raised as to whether these regulations are affected by the retained EU law Bill currently before Parliament. On the assumption that the Bill becomes law, the regulations provide for already acquired pension rights, and I can confirm that they will not be sunsetted or otherwise adversely affected as a result of that Bill. Assuming that in due course it becomes an Act of Parliament, the relevant rights will be preserved.

Lastly, I point out, in case anyone has ever glanced at my CV, that I have no personal claim under any of these regulations.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the cavalry has just arrived in the form of my noble friend Lord Davies of Brixton, who is a pensions expert. Unfortunately, he will not say anything on the SI, which I will take as a level of endorsement of it. He is nodding his head—jolly good.

As the Minister said, the SI amends the judicial pensions regulations 2017, which established the fee-paid judicial pension scheme and provide pension benefits for eligible fee-paid judicial service from 7 April 2000 to 31 March 2022. It mirrors the pension benefits for salaried judges under the Judicial Pensions and Retirement Act 1993.

As the Minister set out, the SI amends the 2017 regulations, as required by O’Brien 2 litigation. In several ways, it is very complex. The Labour Party supports the SI. In essence, its purpose is to ensure that the work of fee-paid and salaried judges is undertaken and remunerated in the same way, and that that is recognised in their pensions.

I thank the Minister in particular for being very clear about the retained EU law Bill. I was indeed going to ask about that, and he could not have been clearer in saying that the Government will not put any sunset clauses in and will expect to retain all the provisions under this SI after the retained EU law Bill is passed.

I will go no further than that, because the Minister has answered the questions I was going to ask. As I said, the Labour Party is happy to support this statutory instrument.

[Lord Bellamy (Con)]

My Lords, in those circumstances, I commend the instrument to the Committee.