Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Tuesday 23rd February 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the draft Regulations laid before the House on 18 January be approved.

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

My Lords, this statutory instrument amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which I will refer to as the FPJPS regulations, which established the fee-paid judicial pension scheme 2017, which I will refer to as the FPJPS. This statutory instrument broadly has three purposes: the first is to add eligible fee-paid judicial offices to the FPJPS regulations; the second is to make amendments consequential to adding these offices to the FPJPS regulations; and the third is to make various further amendments to those regulations.

Dealing with those in turn, the main purpose of this statutory instrument is to add further eligible judicial offices to the FPJPS regulations. To give the House an example, Part 2 of the statutory instrument adds the office of legal chair of the Competition Appeal Tribunal to the schedule of offices in the FPJPS. Until that is done, individuals holding these offices cannot be members of the FPJPS and cannot, therefore, accrue pension benefits under it, even though they would otherwise meet the eligibility criteria. Similarly, member pension contributions could not be deducted from their judicial fees. Currently, when the Ministry of Justice is notified that an individual in this situation retires, an interim payment in lieu of pension is made, but once these judicial offices are added to the FPJPS regulations the payments in lieu will become formalised pension payments.

The second element is the consequential amendments, contained in Part 3, which flow from the addition of these judicial offices to the pension scheme. These amendments ensure two things: first, that eligible service before this SI comes into force on 1 April 2021, and potentially as far back as 7 April 2000, can also count as pensionable service and pension contributions can be deducted in respect of it; and, secondly, these new members can complete certain actions in the scheme, such as the purchase of additional benefits, from their date of admission to the scheme.

Thirdly and finally, we are taking the opportunity of this SI to make some further necessary amendments to the FPJPS regulations. I will highlight three kinds of amendment. First, we explicitly set out the service limitation dates that apply for relevant judicial offices. This is the date from which reckonable service is taken into account for the accrual of pension benefits under the scheme. Service limitation dates represent the point in time when the appropriate salaried judicial officeholders had access to a pension under the Judicial Pensions and Retirement Act 1993 scheme, known as the JUPRA scheme. Following the 2013 judgment in a case called O’Brien v Ministry of Justice, we need to replicate that in the FPJPS. To give the House an example, service in the office of deputy adjudicator of Her Majesty’s Land Registry is eligible for an FPJPS pension, but only in relation to service in this office after 1 January 2009. Although these offices already fall under the entry in the FPJPS regulations of

“First-tier Tribunal Judge (where a legal qualification is a requirement of appointment)”

and the service limitation dates could be inferred, if one had the time and interest to do so, from various sources, such as the purpose of the existing regulations and litigation decisions, we consider it preferable for these dates to be clearly specified in these regulations, so that is what we have done.

Secondly, we have taken the opportunity to correct the service limitation dates, which are already listed for three judicial offices in these regulations, as they wrongly limit, by one day, the period of eligible service for these judicial officeholders. To give an example, the entry for

“Legal Chair Criminal Injuries Compensation Appeals Panel”

is currently limited to service in this office after 3 November 2008, whereas the correct date that the amendment records is 2 November 2008.

Thirdly, we have added the new names of two judicial offices already listed in the regulations. These are the Deputy Insolvency and Companies Court Judge, a position formerly known as the Deputy Bankruptcy Registrar; and the Deputy Master of the Senior Courts, formerly known as the Deputy Supreme Court Master.

Turning briefly to the consultations we have undertaken on these and related matters, I shall highlight three. In 2016, we issued a public consultation on the draft regulations establishing FPJPS and the responses were reflected in the final version of the regulations. The scheme commenced on 1 April 2017, with backdated effect to 7 April 2000. We have since undertaken further consultation exercises relating to the addition of eligible judicial offices to FPJPS. In the first of those two additional consultation exercises, in 2018 we consulted directly with judges of the First-tier Tribunal (Property Chamber) Agricultural Land and Drainage, as this office was not expressly mentioned in the 2016 consultation. We received four responses, which we considered carefully.

Secondly, from June to October last year, we consulted on adding these judicial offices to FPJPS as part of a wider consultation on amendments to the regulations on the inclusion of service in the scheme prior to April 2000. We received a number of responses, and the Government response to the consultation was published on 10 December last year. In addition, of course, we have kept the devolved Administrations informed of developments and have liaised specifically with officials from Wales and Northern Ireland regarding the offices whose jurisdictions are in those countries, reflecting their views accordingly.

I can reassure the House that this statutory instrument, which I accept is somewhat technical, is essentially a tidying-up exercise. We are not implementing any major changes through the statutory instrument, nor are we making any amendments to FPJPS with negative implications for judges. In fact, we are doing the opposite: we are enabling additional officeholders to become members of the fee-paid judicial pension scheme, something I know that both the judges concerned and my department are very keen to see happen. The key reason, therefore, for this statutory instrument is to add eligible judicial offices to the FPJPS regulations to enable those officeholders to become members of the scheme and to enable pension contributions to be deducted from their fees. I beg to move.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

The noble and learned Lord, Lord Morris of Aberavon, will be followed by the noble Lord, Lord Bhatia.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful to all noble Lords who have contributed to this debate. I hear the words of the noble Lord, Lord Ponsonby, ringing in my ears. He said that he had enjoyed this debate more than he thought he would; the problem is that he did not tell us how much he thought he would enjoy it, so I do not know whether he set a very low bar. But I will take it, as I enjoyed the debate very much, that he—like me—had a moderate expectation which has been significantly exceeded.

I have been asked by a number of noble Lords to provide independent legal advice on their pension entitlement. I am respectfully going to avoid doing this, not only because I am now an unregistered barrister so cannot give any legal advice at all but because I am not entitled to either a judicial or indeed a ministerial pension. However, I will set out, I hope clearly, that the Government are determined to ensure that all those entitled to pensions as a result of the four decisions—O’Brien 1, O’Brien 2, McCloud and Miller—receive them. Therefore, to pick up on the point made by the noble and learned Lord, Lord Morris of Aberavon, we do not want anybody to fall between the cracks.

As to how many people we are talking about, that rather depends on whether we are talking about people affected by those decisions or the people affected by the SI. The number of people affected by the SI is very small—a handful, maybe 10 or 15. The number of people affected by the other decisions is some 5,700, and at the moment we are paying about 1,235 people interim payments to reflect moneys to which they are entitled. As of 31 January this year, we have agreed 2,573 service records out of that estimated total of 5,706 for the O’Brien 2 and Miller claimants, and obviously we will be progressing that so far as we can.

Noble Lords are respectfully right to point out that this is the result of a number of court decisions; I deliberately did not go through the material in my opening, not least because of time. But it is important that judges, like everybody else in our society, have access to the courts, and it is also important that we recognise that our justice system depends not only on full-time, salaried judges but on a whole raft of fee-paid judges in all sorts of courts and tribunals up and down the land, without whom the critical infrastructure of our justice system would simply not exist.

I have been asked to say something about the current consultation; I will do that with reference to the McCloud litigation, which the noble Lord, Lord Bhatia, specifically asked about. As the House will be aware, the gist of that decision by the Court of Appeal, if I may respectfully paraphrase it, was that less favourable treatment was being given to some younger judges as compared with more senior judges. We have looked at that decision as part of the future reform, in respect of which we want to give judges an option as to whether or not they join the reform scheme.

From 2022, the reform scheme will be the only scheme in which members can accrue benefits; all other judicial pension schemes would close to future accruals, but no benefit previously accrued will be lost. Therefore, for those currently on final salary schemes—JUPRA or FPJPS—those benefits will be linked to their salary when they retire or leave judicial office. I can inform and, I hope, please the noble Lords who asked me what the timescale is—in addition to the noble Lord, Lord Ponsonby, I think it was the noble Lords, Lord Thomas of Gresford and Lord Davies of Brixton. The timescale is imminent; we will be publishing the government response to the consultation later this week. Off the top of my head I think it will be Thursday, but it will certainly be this week. So we are not sitting on our hands; we are certainly getting on with it.

In the time remaining I will pick up a number of other points. I respectfully agree with the noble Lord, Lord Davies of Brixton, that we need to get judicial pensions right. That is important in order to attract people to become judges, to retain them as judges and to make sure that they have a proper pension scheme. The tax treatment is part of that and noble Lords will see how we have responded to it in the consultation later this week. There is no question but that this Government put a very high degree of importance on getting the judicial pension structure and system right in order to attract people into the scheme.

I hope that I have picked up all the questions I was asked. I think the only question outstanding, from the noble and learned Lord, Lord Morris of Aberavon, and, I think, from the noble Lord, Lord Thomas of Gresford, was about whether recorders are in the scheme. I have been informed, while on my feet, that recorders are already in the scheme—so I hope that that bit of personal good news will be welcome to those Members. I will check the Official Report to see whether there are any questions I have not responded to—but I hope not, and I therefore commend these regulations to the House.

Motion agreed.