A new pension scheme for fee-paid judges is to go ahead despite concerns that it could create a second-class system for a section of the judiciary in which women and members of minority groups are heavily represented. 

The Ministry of Justice is implementing the fee-paid judicial pension scheme (FPJPS) for eligible fee-paid judges across the UK following a successful Supreme Court challenge two years ago.

In a response to a consultation on the scheme it said yesterday that it did not consider that any fee-paid judges, of any background, would be treated less favourably than their salaried counterparts.

It stated: ‘The department takes seriously its legal duties in respect of equalities and equal opportunities, and is committed to ensuring no less favourable treatment based on background. The department will continue to monitor this in respect of the implementation of the [scheme].’

However one judge responding to the consultation said the scheme ‘clearly’ had potential equalities impacts, as there was ‘a far better representation of younger judges, women and those from the BME community in the fee-paid judiciary in comparison with the salaried judiciary (and in particular the senior salaried judiciary)’.

The judge said: ‘Any less favourable treatment in comparison with the [salaried judges'] scheme (whose benefits have mostly accrued to white, older, privately educated barristers) is indirectly indiscriminatory.’

The scheme is designed to remedy what government called its 'previous failure to provide specified fee-paid judges with a pension entitlement that is comparable to that of their salaried comparators’.

In 2013 the Central London Employment Tribunal backed a claim by former part-time recorder Dermod O’Brien to a full pension. It followed a ruling by the Supreme Court earlier that year that part-time judges are ‘workers’ for the purpose of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

FPJPS will mirror a current scheme for salaried judges, established by the Judicial Pensions and Retirement Act 1993 (JUPRA) as far as possible, on a pro rata basis. To achieve this, the MoJ used the Pension Schemes Act 2015 to insert a new paragraph in the 1993 act.

One judge commented that the proposed scheme fell ‘far short’ of legal requirements while another said it was not clear why the government chose to create a new scheme rather than extend the act to fee-paid judges by amending existing legislation.

After ‘careful consideration’ of the consultation responses, the MoJ acknowledged it would be possible to amend the act to allow fee-paid judges to accrue benefits under the same scheme as the salaried judiciary.

But it said amending the act in such a way would require a ‘complex and lengthy legislative process that would result in further delay before serving and former judges would be given the pension to which they are entitled for their fee-paid service’.