The full extent of the rift between judges and the lord chancellor over pension reforms was laid bare at an employment tribunal today in a case that could have far-reaching consequences for public sector employers. Six High Court judges are among 210 claimants challenging the lord chancellor and Ministry of Justice over their pension arrangements.
Presiding over a packed courtroom in London, tribunal judge Stuart Williams spent over three hours hearing opening submissions from Michael Beloff QC (instructed by Bindmans) for the six High Court judges, Andrew Short QC (instructed by Leigh Day) for 204 judges, and Martin Chamberlain QC for the lord chancellor and Ministry of Justice.
Beloff told the tribunal that Sir Nicholas Mostyn, Sir Roderick Newton, Sir Philip Moor, Dame Lucy Theis, Sir Richard Arnold and Sir Rabinder Singh were ‘high-flyers’ at the bar in their respective fields, ‘which explains their relatively early appointment at an early age’.
They had sustained a significant drop in their income, he said, noting an MoJ paper published in April this year highlighting an average 68% income loss for barristers who are appointed to the bench.
Although judges expect an income drop when they leave successful private practice to pursue a career in public service, Beloff said they could not have predicted that the government would alter the terms on which they were appointed, in respect to their pensions, ‘to their substantial financial deteriment’.
By introducing pension reforms in April last year, Beloff said the government was guilty of direct discrimination on the grounds of age, a breach of entitlement to equal pay and indirect race discrimination.
Beloff questioned why one High Court judge, doing exactly the same kind of work as others, had been treated differently and less favourably than others ‘simply because of their date of birth’.
Commenting on the legitimacy of the aim and whether the government’s measures were proportionate, Beloff said the case for justification had to be ‘robust and well-evidenced’. He said judges were not in the same position as other public sector workers, highlighted by the fact they have their own ‘bespoke’ pension scheme.
Unlike other public sector workers, judges also have a constitutional role. ‘Judges' work differs in kind, in nature,’ Beloff said. ‘They are not there as other civil servants are to deliver policies of the executive as best they can. They exist to ensure the law of the land is upheld, including against the wishes and desires of the executive.’
Short told the tribunal that the suggestion younger judges could make a lifestyle or investment change ‘to make good the impact of the new scheme’ was irrelevant and unrealistic.
Even if the government were able to climb the hurdle of showing a legitimate social policy aim, Short said the means of achieving that aim was still neither justified nor proportionate.
He added that it was ‘simply wrong to say that discrimination does not matter because it affects those who are paid more than some [other public servants]’.
Responding to the claims, Chamberlain told the tribunal that no constitutional principle required sitting judges to be held immune from adverse pension changes when other public servants were not. Had such a principle existed, he expected to see it in judicial review proceedings when the government’s pension reforms, and other related reforms, were first proposed.
Chamberlain told the tribunal that the judges’ claims arose from the most significant reform of public sector pensions for a generation.
Major changes in the life expectancy of the public sector workforce meant previous pension arrangements were not sustainable. Alternative ways of introducing pension reform would still involve age discrimination, he said, and any transitional arrangements would require drawing a line.
One option the government considered was to delay introducing the changes beyond 2015 ‘so that those affected had more notice’, Chamberlain said. ‘That was an option that we considered. But – and we do not shy away from this – it was the most expensive of the options,’ he added.
The hearing continues.