Consultation on judicial pensions proposed response to McCloud

Consultation opened on 14 October 2020. Closing date 09 December 2020 at 17:00.

Summary

This consultation outlines the proposed remedy to the McCloud case.

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Consultation description

In McCloud1 the Court of Appeal held that transitional protections provided to older judges as part of the 2015 judicial pension reforms constituted unlawful direct age discrimination. From 1 April 2015, younger judges had been moved from their legacy schemes, the Judicial Pension Scheme 1993 (JUPRA) or the fee-paid equivalent, Fee-paid Judicial Pension Scheme 2015 (FPJPS),2 both of which were tax-unregistered final salary schemes, to various tax-registered career average schemes with lower accrual rates, including to the Northern Ireland Judicial Pension Scheme 2015 (NIJPS). Judges closest to retirement were protected from the changes due to their age, and remained in JUPRA. The Court held that such protection unlawfully discriminated against younger judges.
The Government’s request for permission to appeal to the Supreme Court was rejected and the case was remitted to the Employment Tribunal to agree a remedy for claimants. The Employment Tribunal has since made declarations that claimant judges are entitled to be members of JUPRA/FPJPS from 1 April 2015.
The Government accepted that the Court of Appeal’s judgment had implications for all public service pension schemes that were reformed in 2015, as all contained transitional protections for older members. It has since committed to addressing the discrimination for all affected public servants regardless of whether they brought a claim. 
Rulings of the Court of Appeal in England and Wales are not directly binding here as this is a separate legal jurisdiction. However the devolved public service schemes in Northern Ireland incorporate the same transitional protection arrangements as the schemes in Britain. Legal advice confirms the implications of the Appeal Court decision is such that all schemes must be treated as affected by the McCloud decisions and so require to be remedied.

 

Response should be emailed to AtoJ.Consultation@justice-ni.x.gsi.gov.uk

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