The employment tribunal is expected to deliver its verdict on the pensions dispute between judges and the lord chancellor in the next few weeks after a seven-day public showdown reached its finale yesterday afternoon.
With proceedings going past the London tribunal’s official closing time, tribunal judge Stuart Williams told the court he was reserving judgment. ‘No surprise to anyone, the decision is going to be reserved,’ he said. ‘People ask "how long?": no longer than necessary.’
Williams told the tribunal ‘some progress will be made this week’. He hoped the decision would be ‘a matter of weeks, not months’.
Six High Court judges are among 210 claimants challenging the lord chancellor and Ministry of Justice over transitional provisions regarding pension reforms.
Counsel for all parties spent day seven of the hearing making closing submissions.
For the lord chancellor, Brick Court Chambers’ Martin Chamberlain QC highlighted the impact the tribunal’s decision could have on the rest of the public sector. Addressing the question of whether the aim of the transitional provisions was legitimate, Chamberlain said the approach was followed throughout the public sector, including for doctors, teachers, police officers and fire fighters, as well as the judiciary.
Any finding that the transitional provisions were illegitimate would apply in other cases too, Chamberlain said. He added: ‘Those against me may say “so be it, maybe [the aim] is illegitimate in every case”. But the consequences of finding that it is should cause the tribunal to think very carefully.’
Chamberlain told the tribunal that the tax position of the previous judicial pension scheme was ‘anomalous’ as it was the ‘only group of public service pensions whose scheme was unregistered’. He added that judges ‘are not prohibited from all employment’ after retiring.
Outer Temple Chambers’ Andrew Short QC (instructed by Leigh Day), representing 204 claimants, told the tribunal that Chamberlain ‘refers understandably’ to the possible impact on other public sector schemes, but said the tribunal’s decision must be ‘based on the evidence you have heard here’.
Short said it was ‘striking’ that the government’s case for justification had changed so much over time.
There was no sufficient evidential basis for the ministry’s policy, he said. ‘What is striking is the government did not carry out any rigorous analysis of any of this. They did not analyse the particular expectations and obligations the different cohort of judges would have.’
Case law had made clear the government can protect existing pension expectations where individuals are already members of a scheme, Short said. ‘What is not permissible is to protect some expectations only on grounds of age,’ he added.
Blackstone Chambers’ Michael Beloff QC (instructed by Bindmans), for the six High Court judges, told the tribunal the complaint ‘is not where the line precisely was drawn but indeed whether there should have been a line drawn between those groups at all’.
The government aspired to consistency in its treatment of public sector workers, Beloff said. ‘That is, of course, a perfectly reasonable stand in itself, but only if the judges’ position could be fairly equated with that of other interest groups.’
He added that future judicial applicants ‘will at least know what their position to pension will be when they take up appointment. That’s the choice that has been denied my clients’.
The judge hearing the case, Stuart Williams, retired from salaried office last year. He was appointed to sit in retirement as a fee-paid judge from 1 July 2015.