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General Committees

Debated on Tuesday 3 March 2020

Delegated Legislation Committee

Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020

The Committee consisted of the following Members:

Chair: Caroline Nokes

† Cruddas, Jon (Dagenham and Rainham) (Lab)

† Eagle, Maria (Garston and Halewood) (Lab)

† Elmore, Chris (Ogmore) (Lab)

† Foster, Kevin (Parliamentary Under-Secretary of State for the Home Department)

† Haigh, Louise (Sheffield, Heeley) (Lab)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Lewer, Andrew (Northampton South) (Con)

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† Mangnall, Anthony (Totnes) (Con)

† Moore, Robbie (Keighley) (Con)

† Mullan, Dr Kieran (Crewe and Nantwich) (Con)

† Osborne, Kate (Jarrow) (Lab)

† Pursglove, Tom (Corby) (Con)

† Roberts, Rob (Delyn) (Con)

† Smith, Royston (Southampton, Itchen) (Con)

† Stevenson, Jane (Wolverhampton North East) (Con)

† Vickers, Matt (Stockton South) (Con)

Yohanna Sallberg, Ellen Watson, Committee Clerks

† attended the Committee

Sixth Delegated Legislation Committee

Tuesday 3 March 2020

[Caroline Nokes in the Chair]

Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

I beg to move,

That the Committee has considered the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020, No. 61).

It is a pleasure to serve under your chairmanship, Ms Nokes. The regulations were laid before the House on 30 January and were introduced under section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide the important right of appeal against immigration decisions on citizens’ rights under the European settlement scheme.

The regulations are required to meet our obligations under the withdrawal agreement, the European economic area European Free Trade Association separation agreement, and the Swiss citizens’ rights agreement. The Government have been clear about our commitment to protecting the rights of EU citizens, European economic area citizens and Swiss citizens who have made this country their home. They are our friends, family and neighbours, and we want them to stay. The appeal rights provide further reassurance that those citizens remain welcome and can continue to live and work in the United Kingdom.

The regulations do two things. First, they establish appeal rights against a wide range of decisions that affect a person’s right to enter and live in the UK under the European settlement scheme. That includes those who are refused leave under the scheme, or who are granted pre-settled status rather than settled status, as well as those who are refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations also provide an appeal route for those whose rights are restricted under the scheme, for example if their status is revoked or curtailed.

Secondly, the regulations ensure that existing rules and procedures are applied to the operation of appeal rights. They go further than the withdrawal agreement requires, by providing appeal rights in line with the UK’s more generous domestic implementation. That means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if they are refused status or granted pre-settled status.

Under the regulations, appeals will follow the same process as current immigration appeals. They will be heard by the asylum and immigration chamber of the first-tier tribunal and, with permission, there will then be a further onward right of appeal to the upper tribunal on points of law. The exception is where the decision is certified on national security grounds or where sensitive information cannot be made public. As with current immigration appeals, those cases will be referred to the Special Immigration Appeals Commission. As I am sure the Committee is aware, that is similar to provisions in other areas of immigration law.

The regulations are undeniably complex because of the number of situations requiring a right of appeal under the agreements and the need to apply existing and complex rules on appeal rights. We are committed to making the appeals process as simple as possible for applicants, however. The decision letter will tell them whether they can appeal and will direct them to the relevant information on Support is also available by phone, in person or in writing for those without access to online facilities or who need additional assistance.

The regulations ensure that we comply with the requirements of the agreements and are an essential part of our commitment to protecting the rights of EU citizens. I commend them to the Committee.

It is a pleasure to serve under your chairmanship, Ms Nokes. The Labour party welcomes the regulations, as we have been calling for some time for the right of appeal to be put in primary legislation. It was good to hear the Minister laying out the Government’s case, on which we are pleased to support them.

The instrument provides for a right of appeal when settled or pre-settled status has been denied, but we have some specific questions about the regulations. The explanatory note is clear that the appeals process will apply only to those who applied for settled status “on or after” 31 January 2020. Frankly, that is absurd. It raises concerns for those who began the application process prior to 31 January. The Government have made it clear that they have received more than 3 million applications under the EU settlement scheme as of January 2020. Is the Minister really saying that the majority of people who have applied to the scheme will not have a right of appeal, and is that consistent with the withdrawal agreement? This issue will affect those who applied before the qualifying date and whose applications have not yet been decided on, and who want to make sure that they have a right of appeal if they are refused. Those people will wait months for a decision and will be understandably concerned about the fact that if they are refused close to the deadline, they will have little time left in which to apply again and ensure that they receive a right of appeal.

That will obviously create some practical difficulties. The individual may try to withdraw their first application to make a fresh one, or they may simply make a duplicate application to the scheme without withdrawing their first, which could seriously overburden the system. I would welcome clarification from the Minister about what people should do in that situation.

It is vital that applicants have a right to legal representation and are not put off by a time limit. Will the Minister confirm what rights to legal representation applicants will have, and can he guarantee that there will be no refusals where applicants’ entitlements have not been exercised?

A challenge of the settled status programme is the requirement on people who did not need documentation prior to January 2020 to demonstrate a long paper trail. People who began their time in the UK in houses of multiple occupation, or to whom employers did not provide payslips, face additional barriers through no fault of their own. The requirements and demands of the settled status scheme need to be reviewed. At the time of the referendum, everyone was clear that should the UK vote to leave, EU citizens who were already here should be welcome to stay. That promise needs to be honoured and must not be undone by bureaucratic burdens that have an impact on the most vulnerable.

The Government’s own watchdog raised significant concerns about the Home Office’s ability to reach the most vulnerable individuals who are seeking settled status. Appeals obviously cannot be seen in isolation from the difficulties engulfing the EU settled status scheme. An estimated 200,000 EU citizens are yet to apply for settled status. Obstacles to applying include age and a lack of access to digital technology, while some may not even know they are not already British citizens. The over-65s, of whom just over 50,000 have applied for settled status, will clearly have the most difficulty in applying.

If the Government are serious about reaching those groups, why have they still not committed to funding beyond March the network of 57 charities that were granted Home Office funding to do just that? Charities have said that they are being forced to cut back on that service because the Department has refused to guarantee any funding beyond this month. Previously, they were granted £9 million by the Department to provide practical support to the group of 200,000 vulnerable or at-risk people applying to the scheme. A failure by Ministers to provide further funding will undoubtedly leave a gap in provision.

Praxis, a charity that was granted funding to help homeless people apply to the scheme, has three caseworkers dedicated to providing such support, but is being forced to consider ending their contracts because there is no guarantee that the work can continue beyond March. That is not right. We know the dangers of erecting administrative hurdles and failing to explain the UK’s complex immigration status to those who have a right to be here. The Government must avoid enhancing those obstacles.

The regulations do not provide for appeals when the Home Office rejects an application as invalid, rather than refusing it because it does not meet the requirements of the rules. That mirrors the Home Office’s fairly long-standing approach to invalid applications under free-movement law. An invalid application could be, for example, one from an applicant whose identity or nationality is disputed by the Home Office. The Home Office has already rejected 3,000 applications as invalid, but has yet to provide a breakdown of why those applications were invalid. I would be grateful if the Minster responded to that.

Will the Minister confirm that people who are eligible for the settlement scheme but who are not covered by the withdrawal agreement—particularly those who came under the Zambrano or Surinder Singh routes—will have a right to appeal under the regulations? During the passage of the 2020 Act, a Home Office Minister gave an assurance on the Floor of the House that they would.

Will there be a time limit on the right of appeal? The deadline for settled status will be 31 June 2021, but the Government have been clear that they will continue to accept applications beyond that date if someone has a good reason for not having applied. Will the Minister confirm that people who apply to the scheme after 31 June 2021 will have the right of appeal?

Finally, will the Minister confirm that EU citizens’ rights will be protected while their appeals are pending, to ensure that those with outstanding appeals after 31 June 2021 will not be subjected to the hostile environment? EU passports will no longer be proof of right to rent or work in the UK, for example, so someone with an outstanding appeal will not be allowed to do those things. If those questions are answered, we will be happy to support the regulations.

It is a pleasure to serve under your chairmanship, Ms Nokes. You will take a particular interest in this legislation, given your previous role. You will know better than anybody that I have been banging on about appeal rights for a considerable period, so I welcome the Minister’s introduction of regulations to enact them.

That said, I echo a fair number of the questions and concerns that the shadow Minister raised, particularly on funding for advice, and I will return to a couple of the technical issues that she raised. On whether someone should have the right to appeal against the decision that their application is invalid, although I understand that it is long-standing Home Office practice for there to be no right of appeal in those circumstances, the reason behind that escapes me.

Disputes about nationality may depend on quite technical nationality laws, so it is slightly disturbing that someone may not be able to challenge a decision that they are not French or Polish, for example. Issues of identity may depend on problems with the way that someone’s name is spelled, which can vary in official Government documents, so it is slightly worrying that 3,280 applications have been found invalid and that those individuals will not have a right of appeal. Will the Minister provide more information on the different types of “invalid” refusals? Are those 3,280 refusals to do with applicants’ identities or nationalities?

I also share the shadow Minister’s concerns about the 31 January 2020 deadline and the reasons why it has been picked as a cut-off point. Even from a selfish Home Office point of view, it seems strange to say to folk, “We are refusing your application, but rather than give you a right of appeal, we ask you to apply again,” only for the applicant to appeal if the same decision is made again. Why not just give those with outstanding applications the right to go straight to appeal?

I will finish my remarks on a broader point. Ideally, I would like the provisions to be in primary rather than secondary legislation. I understand that an immigration Bill is due in the not-too-distant future; perhaps the Minister can indicate when that will be. The appeal rights are a fundamental safeguard for lots of people; the shadow Minister mentioned Zambrano carers, but there are all sorts of others, too.

The Government very generously made a unilateral commitment to Zambrano carers and others, so the scope of the EU settlement scheme is broader than required under the withdrawal agreement, which is absolutely welcome, but those rights are enshrined only in immigration rules, and the appeal rights are enshrined only in secondary legislation. Rather than enshrining people’s right to be in this country in bits of legislation that can be changed virtually at the stroke of an Immigration Minister’s pen, I want them to be enshrined in statute, so that people have that protection.

As the Minister knows, I have all sorts of other fundamental concerns about the nature of the settlement scheme—whether it should be a declaratory system, digital only and so on—but I will leave those matters for when the immigration Bill is introduced. I absolutely welcome the establishment of the right of appeal.

The Minister has one or two questions to answer on the technical issues that the shadow Minister flagged up, and I look forward to further debate on the progress of the EU settlement scheme.

It is a pleasure to serve under your chairmanship for the first time, Ms Nokes. I compliment the Front-Bench speakers, particularly my hon. Friend the Member for Sheffield, Heeley, and I agree with the important points and share the important questions that have been raised, which I do not intend to reiterate.

Paragraph 12 of the explanatory memorandum, which covers the impact of the regulations, states that there is “no, or no significant” impact on business, charities, voluntary bodies or the public sector, and that

“An Impact Assessment has not been prepared…because no significant impact on business is foreseen.”

How many appeals does the Minister expect to be heard under the regulations? I ask because if he has decided that there will be no significant impact, he must have a view on how few people are likely to appeal. Could he share that with the Committee?

It seems to me that, as a consequence of the rights, a number of people will appeal. Before the Committee votes on the regulations, it will need some word from the Minister on the likely impact of the regulations, in view of how many people might actually appeal. Saying “We haven’t done an impact assessment because we don’t think there is going to be an impact” is giving the Committee too little information to satisfy it. Perhaps the Minister can satisfy me on that point.

It is a pleasure to serve under your chairmanship, Ms Nokes. I am sure the Minister will tell us that all is rosy, but I asked the Library about the number of British citizens applying for passports from the EU 27, and I got some quite alarming figures. In 2017, which is when the Library’s latest figures are from, there were more than 15,000 applications, whereas a decade ago there were about 1,000. If everything is okay with the British passport, how does he explain that? The number of applications for a Swedish passport used to be only in the double digits, but last year there were nearly 5,000 applications. The Irish figure is well known; it is 112,138. What conclusion does he draw from that?

We are always told that people voted out and want to lose freedom of movement, but those figures suggest that people want to live, work and play—I think that is from the Mars adverts—love, study and all those things in the EU 27. Those of us with Commonwealth origins have no recourse to another European passport. That calls to mind the hostile environment, which was mentioned so powerfully by my hon. Friend the Member for Sheffield, Heeley. I echo the praise for her, and ask the Minister what we can attribute those figures to. I also ask, because you are chair of the Women and Equalities Committee, Ms Nokes, where the equality impact assessment is.

It has been an interesting debate, and I appreciate the support of Opposition Members. My remit does not quite extend to the Swedish passport system, so I will have to keep my remarks rather limited on that.

I start by responding to the hon. Member for Garston and Halewood. There have been more than 3 million applications and now just over 3 million determinations, and so far we have had 900 requests for an administrative review. While there is no appeal right, people who disagree with a decision can still request that review. With 900 reviews after 3 million determinations and well over 3.2 million applications—I accept that people would not apply for a review until they had got their decision—we felt the number of appeals was likely to be low. Where people have additional evidence, the logical process for them is to make another free-of-charge application to the settlement scheme. As the deadline is June next year, they have plenty of time to do that and get the status they believe they are entitled to. To be clear, if someone reapplies because they think they should have settled status rather than pre-settled status, that does not prejudice the pre-settled status they have been given. I am conscious that Members might ask whether if someone reapplied, it might prejudice the status they had been granted. The answer is no.

For those who applied before 31 January, the way to gain an appeal right is to make a reapplication to the settlement scheme. That is free of charge for anyone; there is no supplementary charge for making another application. We felt that struck the appropriate balance, because an appeal would have a charge to it, and in most cases, if there is a need to present additional evidence, it is easiest to do that through another application. To be clear, anyone who has a right to apply to the EU settlement scheme, including as a Zambrano carer and in the other examples given, may avail themselves of those appeal rights. On legal representation, the position is similar to that for use of appeal mechanisms in other immigration law.

On the system being engulfed, any member of the Committee or of this House who is interested in how the process is going is welcome to pay a visit to Liverpool. We are happy to arrange for people to visit and see what the teams are doing. Hon. Members would see that, far from being engulfed, the teams are working quickly through the largest documentation of immigration status in UK history, providing many people with certainty and assurance.

The Minister pooh-poohed my point about other nationalities. Will he not accept that it is people who are trying to bypass this cumbersome process who are applying for another nationality? Does he not see a causal link there?

I would say it is probably slightly more cumbersome and somewhat more costly to apply for another nationality than to apply for free to the EU settlement scheme—to provide basic proof of identity and of having lived in the United Kingdom, which a person could literally do with a letter they have received. When I visited the team in Liverpool, someone was using as evidence a letter they had received about their tax payment from Her Majesty’s Revenue and Customs. That was combined with an identity card and checks on criminality. I should be clear that a very, very small number of people so far have been refused on criminality grounds. EEA citizens have been a valuable part of our community, and we should not define them by a small number of offenders. That letter was being used for pre-settled status, as that person had only just moved to the United Kingdom, but it is a lot easier to apply for settled status than to get citizenship of another country.

Fair points were made about Home Office funding for the 57 organisations not going beyond March. We expect to make an announcement on that very soon, which will provide some certainty for those operations.

I would be grateful if the Minister could be a little more definite on the timing. Those organisations are laying off people as we speak, which is hindering their ability to reach the most vulnerable groups.

Certainly within a week or two, we expect we will be able to confirm the position. The furthest I can go this morning is that it is our intention to continue providing support beyond the end of this month.

A valid question was asked about whether people can exercise their freedom of movement while there is an appeal outstanding. Rights continue when someone has an appeal outstanding. There is no detriment, for example, if a person leaves the United Kingdom to travel; that would not be held against them on appeal.

I have been through the points raised. I am very grateful for the support offered by Opposition Members. I hope the Committee will approve the regulations to ensure that we have an effective system of appeal, based on the principles that we use across our immigration system. We want all EU, EEA and Swiss citizens who live in our country to know that they are valued members of our community, and we want them to stay.

Question put and agreed to.

Committee rose.

Draft Judicial Pensions and Fee-Paid Judges' Pension Schemes (Contributions) (amendment) Regulations 2020

The Committee consisted of the following Members:

Chair: Mr Laurence Robertson

† Baillie, Siobhan (Stroud) (Con)

† Chalk, Alex (Parliamentary Under-Secretary of State for Justice)

Charalambous, Bambos (Enfield, Southgate) (Lab)

† Duffield, Rosie (Canterbury) (Lab)

† Eagle, Ms Angela (Wallasey) (Lab)

Hendrick, Sir Mark (Preston) (Lab/Co-op)

Hodge, Dame Margaret (Barking) (Lab)

† Hopkins, Rachel (Luton South) (Lab)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Mumby-Croft, Holly (Scunthorpe) (Con)

† Pursglove, Tom (Corby) (Con)

† Qureshi, Yasmin (Bolton South East) (Lab)

† Spencer, Dr Ben (Runnymede and Weybridge) (Con)

† Sturdy, Julian (York Outer) (Con)

† Trott, Laura (Sevenoaks) (Con)

† Wild, James (North West Norfolk) (Con)

† Young, Jacob (Redcar) (Con)

Kevin Candy, Committee Clerk

† attended the Committee

The following also attended, pursuant to Standing Order No. 118(2):

Smith, Jeff (Manchester, Withington) (Lab)

Seventh Delegated Legislation Committee

Tuesday 3 March 2020

[Mr Laurence Robertson in the Chair]

Draft Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Contributions) (Amendment) Regulations 2020

I beg to move,

That the Committee has considered the draft Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Contributions) (Amendment) Regulations 2020.

What a pleasure it is to see you in the Chair, Mr Robertson, and it is an honour to serve under your chairmanship.

The draft regulations before the Committee relate to judicial pension schemes member contribution rates. The purpose of the draft regulations is to amend the current member contribution rates and earnings thresholds in two different traditional pension schemes for subsequent financial years. The first is the judicial pension scheme, which was established by the Judicial Pensions Regulations 2015 following wider public service pension reforms. The second is the fee-paid judicial pension scheme, which, following the Supreme Court’s 2013 decision in the case of O’Brien v. Ministry of Justice, was established by the Judicial Pensions (Fee-Paid Judges) Regulations 2017 in order to provide fee-paid judges with a pension.

Both the 2015 and 2017 regulations make provision for contributions payable by members and set a different rate of contribution dependent on the salaries or fees earned by a judge in a year. The regulations being debated today maintain the current member contribution rates in both schemes for the financial year 2020-21 and each year thereafter, until such time that alternative provisions are made. They also uprate the earnings thresholds under £150,001 per annum in the member contribution rate structure for both schemes on 1 April 2020, in line with the consumer price index. Additionally, the regulations provide that the related earnings thresholds will be automatically uprated each year in April in line with the consumer prices index rate of the previous September.

The reason for making these amendment regulations is that the current provisions for member contribution rates will expire on 31 March 2020. The draft regulations are needed to specify the member contribution rates which will apply from 1 April onwards. The regulations will enable us to ensure the continuing operation of the schemes by deducting the appropriate member contributions from judicial salaries and fees. Given the ongoing uncertainty about the value of public service pensions after April 2015 due to both recent litigation and the consequential decision to pause one element of the actuarial valuation of the schemes, the Government propose to maintain existing contribution rates from 1 April 2020 onwards.

Following the reform of public service pension schemes in 2015, and under the current legislative framework, Departments are required to undertake valuations of public service pension schemes, including the judicial pension scheme, every four years. The valuation does two things. First, it informs the employer contribution rates. Secondly, it tests whether the value of the schemes to current members has moved from target levels and needs to be adjusted to bring it back to that point, which is known as the cost control mechanism.

Work was undertaken in March 2016 on the first such valuation of public service pension schemes to analyse the provisional results of the valuation for each affected scheme. The work was affected by the age discrimination cases brought to court by members of the judicial and firefighters’ pension scheme—the McCloud litigation. That litigation concerned the transitional protection policy that was applied by the Government in implementing the 2015 public sector pension scheme reforms. The courts found that the transitional protection policy amounted to unlawful age discrimination, and in June 2019 the Government’s application for permission to appeal was refused by the Supreme Court.

In January 2019, the Government took the decision to pause the cost control element of the valuation. They were prudent to do so, because the effect of the McCloud litigation on public sector pension schemes was unclear. Although the outcome of the litigation is now known, addressing the discrimination, including settling the details of tax treatment, is a complicated process and involves decisions across Departments; it will take some time to deliver. The pausing of the cost control mechanism will therefore continue until the McCloud remedy is finalised.

In order to avoid the need to make further interim regulations, it is proposed in the regulations that the current rates will continue to apply, with no specific expiry date. Once the McCloud resolution work is complete and the outcome of the cost control element of the valuation is known, the Government will reconsider whether further changes to member contribution rates for these schemes are required.

Turning to the issue of earning thresholds, no changes were made to thresholds for member contribution rates as part of the measures put in place for the year 2019-20. However, the Government are mindful that it would not be desirable for the earning thresholds to fall significantly out of step with salary or fee rates. That is why the regulations provide that all earning thresholds below the top £150,001 threshold are uprated each year in line with CPI. This approach is consistent with various other aspects of public service pensions, and in recent years increases to public service pensions in payment have been in line with the September to September increase in CPI.

CPI is already used to annually uprate the earning thresholds in other public service pension schemes such as the local government pension scheme and the teachers’ pension scheme. The £150,001 band will not be increased, because in the 2015 scheme the rates were designed to align with the top rate of income tax in such a way that the net of tax contribution rates were broadly the same above and below the £150,001 threshold. The total contribution rates are broadly the same in the case of the fee-paid 2017 scheme, when the member and dependent contribution rates are taken together. Additionally, the Government consider it desirable to maintain broad parity between the Judicial Pensions and Retirement Act 1993 and the two sets of judicial pension regulations being amended, as the £150,001 threshold is common across all judicial schemes.

As the regulations provide that the lower earning thresholds below will be uprated automatically each year, similar provisions will not be needed next year. However, the Government will revisit the issue of appropriate levels of contribution rates and thresholds once wider pension issues have been resolved.

The relevant legislation, section 22 of the Public Service Pensions Act 2013, requires the Government to fulfil a number of procedural requirements prior to making changes to features of the scheme under the 2015 regulations, which are classed as “protected elements”.

I am grateful to the hon. Lady; that is a fair challenge. It requires careful consideration. The McCloud judgment is not a case of simply saying that everyone was better off under the old scheme, and therefore a matter of making a simple adjustment in that regard. It is more complex than that. Those on the new scheme might be better off, and it has to be treated in a more granular, detailed way than one might consider. It has been considered with great concern and all due diligence and expedition. We will be hearing an outcome in due course.

I thought it was an extremely good answer, but thank you.

Turning to the consultation, member contributions are one such “protected” element and as such cannot be altered without the Government first consulting the persons or representatives of those persons affected, with a view to reaching an agreement. I can confirm that the Ministry of Justice issued a four-week consultation from 25 October 2019 to 22 November 2019. The Ministry of Justice consulted representative judicial organisations with a view to reaching agreement. An additional statutory requirement for changes to “protected” elements is that an accompanying report must be laid before Parliament setting out the rationale for the amendment. I can confirm that such a report has been laid, and I refer Members to the report for details of the consultation responses.

Separately, we also satisfied the requirement to consult the Secretary of State for Scotland in relation to judicial offices with Scottish jurisdiction, and he was content with the proposal. Furthermore, as the judicial pension schemes to which these regulations relate are UK-wide, we have kept the devolved Administrations informed of progress, and they support our proposed approach. We will continue to engage closely with them on further developments.

Drawing the threads together, under this further interim measure the cost of accruing pension scheme benefits will remain the same for most members but will be reduced for some members, as they will pay contributions at a lower rate than they would have done had no changes been made to the earning thresholds.

I conclude by reinforcing the point that the existing arrangements for member contribution rates expire on 31 March 2020 in relation to both the 2015 and the 2017 judicial pension schemes. That is why these draft regulations are a necessary further interim measure to continue the effective operation of these pension schemes until a long-term solution is put in place.

It is a pleasure to serve under your chairmanship, Mr Robertson. I can confirm that the Opposition are not seeking a Division on this particular statutory instrument. We accept the reason for it to be passed and, in fact, I attended a similar Committee last year for the relevant 2019 judicial pensions statutory instrument.

Taking on the point made by my hon. Friend the Member for Wallasey (Ms Eagle), I want to ask the Government about when the McCloud judgment will be implemented. I heard the Minister say that it is a complicated matter and that he needs to work through this but, to be frank, this has been going on for some time now and it is important to remember what the McCloud judgment was all about.

The Fire Brigades Union and the judiciary were able to hold this particular legislation as unlawful because the tribunal found that the provisions were discriminatory, in that younger judges were more often women and members of the black and minority ethnic community, while it also had ageist effects. It is important that this matter is addressed sooner rather than later, because we have a big shortage of judges and especially High Court judges. In the latter case, a number of senior lawyers and members of the judiciary are not applying for these jobs because of the changes in the pension regulations, while other judges’ positions are also not being filled. One of the reasons holding people back from applying is that, ultimately, they do not know what their pensions will be.

I know things are complicated, but it is not that complicated to work things out so as to come to a resolution. The Court passed a judgment years ago and the Ministry needs to get its skates on and deal with this particular long-standing issue, and I urge the Ministry to direct its mind to this matter seriously in order to resolve it. In the meantime, we are not calling for a Division on the statutory instrument itself because it is clearly necessary.

It is a pleasure to serve under your chairmanship today, Mr Robertson. I have a few questions for the Minister, since he has come to us with a status quo position following a judgment made in 2018—two years ago—that the Government then tried to appeal to the Supreme Court, only to be told last year that they had no grounds for doing so. One assumes his civil servants were able to advise him that that was a likely scenario, so they would have had time to start working on the solutions to this issue—what he called the McCloud remedy—and the fact that it has torn a hole through the Government’s plans for public sector pensions and their reform, albeit in only two of the schemes. Will the Minister confirm that the judgment has very strong implications for all public sector pension schemes where new arrangements for those who joined after the changes are different from and less generous than the arrangements for for those who were already in the scheme—something that, in this instance, has been ruled unlawful by the courts?

Does the non-appearance of the long-awaited McCloud remedy have more to do with the implications for other public sector pension schemes than with complication? Will the Minister give his view on that? I have been a Minister in some quite complicated Government Departments, and in my experience complication was never a reason to be so tardy in producing the response to a legal judgment that the Government had acted unlawfully. I can see in the Minister’s expression and response to my questions some recognition that I might be on the right track about that.

Obviously, no one can deny that keeping the status quo is appropriate while the Government decide what on earth to do about the conundrum that the courts have presented them with. Rather than saying it is all very complicated and there will be a response along some time in the far future, though he has no idea when, will the Minister give a bit more information on when this matter is likely to be resolved? As my hon. Friend the Member for Bolton South East said, this is causing uncertainty and problems with recruitment.

There are many other public sector pension schemes, not least those with members who joined on much less generous pension provision than public servants had in the past. They are very interested in the Government’s response to this important legal judgment. Before we approve the statutory instrument, I would appreciate some indication from the Minister of the direction the Government will go in and when they will do so.

I thank those who have spoken for their helpful contributions to the debate. To address the points made a few moments ago, of course the implications are significant; that is precisely why they have to be considered with care. As a courtesy to the hon. Member for Wallasey, I would like to say a little more about the McCloud litigation. The first thing to emphasise is that the Government have been working at pace to develop the McCloud remedy, bearing in mind that the decision in McCloud does, as the hon. Lady rightly pointed out, read across to other public service pension schemes.

If there were ever a example of something that needs to be thought through with care, this is it. In addition, a final remedy hearing in relation to the judicial scheme was held on 10 January 2020, when declarations were made for salaried and fee-paid judges, with the effect of giving litigants entitlement to membership of the relevant legacy scheme from 1 April 2015. The MOJ has already gone some way to addressing the discrimination for claimants. It has not been sitting on its hands. Most significantly, the claimants have been moved to the JUPRA scheme, which is the pre-2015 scheme, effective from 1 December 2019. Furthermore, the Ministry of Justice has stopped judges from tapering from the JUPRA scheme into the NJPS scheme from October 2019.

The next hearings in the employment tribunal are on injury to feelings in June 2020 and then financial losses in October 2020. Those hearings should settle the detail of how past discrimination will be rectified. Officials in the Department are continuing towork hard, engaging with the employment tribunal on that process.

The MOJ is also committed to addressing discrimination for judges in the same legal and factual position as McCloud claimants, and officials are working at pace to develop proposals for how that discrimination will be addressed. Those proposals will be consulted on in spring this year. Before the formal consultation, the Ministry of Justice will undertake non-technical discussion with the scheme advisory board and pensions board, and engage with the wider judiciary.

In summary, there are a lot of moving parts. This has to be handled in stages and with care. Those are the principles that underpin the approach that is being taken.

The Minister is giving us some useful detail about the work that the Government are undertaking. What lessons has he learned as a Minister from this debacle, with particular reference to the Government’s aim, which the Opposition support, to have a more diverse set of people putting themselves forward to be judges? What has he learned about what happened, which is that the Government discriminated illegally against people who have not traditionally been seen as judges—younger people, black and minority ethnic people, women? What message does he think it sends out to younger lawyers who might aspire to get to the bench and to be judges in future that the Government have somehow managed, at the same time as saying that they want a more diverse bench, to introduce policy found to be unlawfully discriminatory against those very people?

I am disappointed that the hon. Lady felt it necessary to take that tone. This Government are proud of the fact that, in terms of recruits to the judiciary, we have the most diverse judiciary ever. We are on the right path to making it more diverse and more representative of the people whom that judiciary serve.

A judgment has gone against the Government, but judgments go against all Governments of all stripes. I am sure that even when the hon. Member for Wallasey was a Minister, judgments went against the Government. What matters is how the Government respond to that; that is the hallmark of a good Government. We are responding with care, thought and consideration to ensure a scheme is in place that can stand the test of time. That is what we are focused on, and it is precisely the right approach.

The draft regulations are an interim measure until such time as the long-term solution is in place. They will specify member contribution rates from 1 April 2020. Under the measure, the cost of accruing pension scheme benefits remains the same, but will be reduced for some members, as they will pay contributions at a lower rate than they would have done had no changes been made. That is why passing this interim measure is the right thing to do. I hope that the Committee agrees that the regulations are necessary to continue the arrangements for member contribution rates and for the effective operation of the judicial pension scheme.

Question put and agreed to.

Committee rose.