This update, on behalf of the Ministry of Justice (MoJ), is made in response to decisions by the:
- UK Supreme Court in O’Brien v MoJ  UKSC 6
- Employment Tribunal on 2 January 2014 in Miller & others v MoJ
- Employment Appeal Tribunal on 4 April 2014 in MoJ v O’Brien
The Employment Tribunal continues to hear preliminary hearings on related issues and there are appeals to the Employment Appeal Tribunal (EAT) and Court of Appeal. However, the MoJ is aware that past and present fee-paid judicial office holders would like to know what steps are being taken in response to the judgments made so far.
This update should be read in conjunction with an earlier communication entitled MoJ statement in fee-paid judicial cases, published on 27 March 2014.
Pre-April 2015 fee-paid Judicial Pension Scheme
In light of the O’Brien and Miller judgments in respect of fee-paid judicial pension entitlement, the MoJ will implement a fee-paid Judicial Pension Scheme (JPS) for fee-paid service from 7 April 2000 to 31 March 2015 for eligible fee-paid judicial office holders, as described in the Miller judgment, which will remedy the less favourable treatment. When these proposals have reached a sufficiently mature stage, a degree of consultation with those fee-paid Judges who are likely to be members is envisaged.
The pension scheme for fee-paid judicial office holders will mirror the current Judicial Pensions & Retirement Act (JUPRA) scheme. Design of this scheme is underway and we are seeking a power under section 1(2) of the Superannuation Act 1972 to establish and maintain a pension scheme for fee-paid judicial office holders in the England, Wales and Scotland. Work will continue through the summer.
When the delegation is confirmed, the Lord Chancellor will, by order, add the requisite fee-paid judicial offices to Schedule 1 of the Superannuation Act 1972. Fee-paid judicial office holders will qualify to be members of the pension scheme (scheme members) from a date to be determined. As things currently stand, that date will be 7 April 2000, but the point is subject to appeal and is one of the issues with scheme design that cannot be finalised until the outcome of that appeal.
Judicial Pension Scheme 2015 and transitional protection
The New JPS 2015 will apply to fee-paid and salaried judicial office holders. This scheme, established by regulations made under the Public Service Pensions Act 2013, is due to commence on 1 April 2015.
A 12-week consultation on the NJPS 2015 regulations began on 17 June 2014. Fee-paid judiciary are encouraged to read the consultation document, draft regulations and other supporting policy papers, which deal with the application of the scheme to all eligible judicial office holders. Both comments and responses to this consultation are welcome from all judicial office holders.
Judges eligible for membership in the FPJPS will be eligible to join NJPS 2015, subject to the operation of transitional protections which are a key feature of the Public Service Pensions Act 2013 (PSPA 2013 section 18). The provisions mean that fee-paid judicial office holders who were in office and who were 55 or older at 1 April 2012 will have their relevant service, from 7 April 2000 or some other date until retirement, pensioned entirely under the pre-2015 fee-paid scheme.
Fee-paid judicial office holders appointed before 1 April 2012 and who were aged between 51 and a half and 55 at that date, will have the option to defer joining the NJPS 2015 and have service until an age-related later date count towards their pension under the pre-2015 fee-paid pension. All other eligible fee-paid judicial office holders will transfer into the NJPS 2015 on 1 April 2015.
Work has taken place to ensure that the FPJPS and NJPS 2015 interface correctly. There is a need for primary legislation to ensure that fee-paid judges who were of the relevant age as at 1 April 2012 and who would have been eligible for membership of a fee-paid scheme if it had existed at that time, are treated as satisfying the requirements for transitional protection under section 18 of the Public Service Pensions Act 2013, and benefit from these transitional provisions. The aim is to seek legislative provision for this purpose (and also power to pay a pension to eligible Northern Irish fee-paid judiciary who are the responsibility of the Lord Chancellor for pension provision) in the next Parliamentary session, which is expected to begin in June.
It is Government policy that transitional protection is ‘portable’ between public sector pension schemes. This means that a fee-paid judge who is eligible to remain a member of the pre-2015 fee-paid JPS, and subsequently joins the salaried judiciary, will be treated as a protected member of the salaried judiciary and entered into the current pension scheme rather than the new JPS 2015.
‘Portability’ is subject to a five-year limitation. If a judge, fee-paid or salaried, leaves active service for more than 5 years, their protection will no longer be valid upon their return. Any eligible judge with any form of transitional protection will be able to ‘port’ this protection between the schemes.