Update: Ministry of Justice statement in fee-paid judicial cases
18 Jun 2014 10:40 AM
This statement on behalf
of the Ministry of Justice is made in response to decisions made in fee-paid
judicial cases.
his 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 [2013] 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.
Pension
schemes
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.