Thousands of part-time judges could lose billions in pension benefits
By Joshua Rozenberg >>
(16 February 2023)
More than 11,000 serving or former part-time judges in England and Wales stand to lose pension benefits worth a total of £3.5bn at the end of this year if the Retained EU Law (Revocation and Reform) Bill passes and no further action is taken by the justice secretary.
The bill, which is due to begin its detailed scrutiny in the Lords next week, will automatically revoke almost all EU-derived law — apart from specified provisions retained by ministers.
Part-time judges are paid pensions under the Judicial Pensions (Fee-Paid Judges) Regulations 2017. However, these regulations had to be amended as a result of a ruling in the O’Brien case by the EU’s court of justice in 2018. New provisions in the Judicial Pensions (Fee Paid Judges) (Amendment) Regulations 2023 are expected to take effect on 1 April.
Lawyers say the 2017 regulations and the latest amendments are derived from the UK’s government’s obligation to give effect to EU directive 81/97, which banned discrimination against part-time workers. But there is no mention of pensions legislation in the Ministry of Justice section of the government’s so-called retained EU law dashboard.
If these regulations are regarded as EU-derived subordinate legislation, as defined by clause 1 of the REUL bill, it follows that they will be revoked automatically unless the Ministry of Justice takes action before the end of this year. That will affect serving part-time judges as well as those who have retired and dependants of those who have died. The loss of pension payments is said to be the equivalent of a 43% pay cut.
This uncertainty has led to widespread concerns. Sources working in the field of judicial pensions gave the example of a fee-paid judge planning to retire next year at 65. His part-time service since April 2000 would entitle him to a lump sum after tax of about £9,000 and a pension for life of about £8,000 a year. He and an estimated 7,000 others in a similar position do not know whether they will receive any pension payments at all on retirement.
These concerns have been heightened by the fact that ministers fought against paying these pensions at every step from 2005 to 2019 — even though the government was advised in 1999 that part-time judges were covered by the EU directive.
A letter sent this month by justice secretary Dominic Raab to an MP whose constituent is a former part-time judge appears reassuring. It concludes: ’[The] MoJ is aware of [the REUL bill] and its potential to impact upon the Judicial Pensions (Fee-Paid Judges) Regulations 2017 and is taking steps accordingly.’
However, the letter does not confirm the 2017 regulations are caught by section 1 of the REUL bill; there is no acceptance that the forthcoming 2023 regulations will also be caught by section 1 of the REUL bill; and assuming these regulations lapse at the end of this year, there is no commitment to retain them.
A Ministry of Justice spokesperson commented: ‘Ministers are currently reviewing each piece of retained EU law for which the Ministry of Justice is responsible.’
(Courtesy: The Law Society Gazette)