Delegated Legislation Committee
DRAFT JUDICIAL PENSIONS (FEE-PAID JUDGES) (AMENDMENT) REGULATIONS 2023
The Committee consisted of the following Members:
Chair: †Caroline Nokes
† Antoniazzi, Tonia (Gower) (Lab)
† Bell, Aaron (Newcastle-under-Lyme) (Con)
† Byrne, Ian (Liverpool, West Derby) (Lab)
† Cairns, Alun (Vale of Glamorgan) (Con)
† Cunningham, Alex (Stockton North) (Lab)
† Duddridge, Sir James (Rochford and Southend East) (Con)
† Freer, Mike (Parliamentary Under-Secretary of State for Justice)
Greenwood, Margaret (Wirral West) (Lab)
Johnson, Kim (Liverpool, Riverside) (Lab)
† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
† Mann, Scott (Lord Commissioner of His Majesty's Treasury)
† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)
† Mortimer, Jill (Hartlepool) (Con)
† Mumby-Croft, Holly (Scunthorpe) (Con)
Sheerman, Mr Barry (Huddersfield) (Lab/Co-op)
Smith, Julian (Skipton and Ripon) (Con)
Wallis, Dr Jamie (Bridgend) (Con)
Rebecca Lees, Committee Clerk
† attended the Committee
Fourth Delegated Legislation Committee
Tuesday 21 February 2023
[Caroline Nokes in the Chair]
Draft Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023
I beg to move,
That the Committee has considered the draft Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2023.
It is a pleasure to serve under you this morning, Ms Nokes.
The statutory instrument before us amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the Fee-Paid Judicial Pension Scheme 2017. I shall refer to those as the fee-paid regulations and the fee-paid pension scheme respectively.
The fee-paid pension scheme currently only provides benefits for eligible fee-paid judicial service on and after 7 April 2000. The main purpose of the SI is to amend the fee-paid regulations to provide pension benefits for eligible fee-paid judicial service before 7 April 2000 and provide a remedy following the judgments in the cases of O’Brien against the Ministry of Justice, known as “O’Brien 2”, and Miller and others against the MOJ, known as “Miller”.
The fee-paid pension scheme commenced on 1 April 2017 when the fee-paid regulations came into force. It provided pension benefits for eligible fee-paid judicial service on and after 7 April 2000 that mirrored those for salaried judges under the Judicial Pensions and Retirement Act 1993, known as JUPRA. In 2018 the European Court of Justice found that eligible fee-paid judicial service prior to that date should also be taken into account for the purpose of calculating pension benefits. In addition, in 2019, the UK Supreme Court found that the time limit for fee-paid pension entitlement claims runs from the date on which the judge retired from judicial service, rather than the date on which they left the fee-paid office concerned. Even though the fee-paid pension scheme closed to further accruals on 31 March 2022, with pension accruals for all judges from 1 April 2022 being in the reformed Judicial Pension Scheme 2022, it is important that judges receive the pension benefits they are entitled to for their historical fee-paid judicial service. The instrument achieves that and provides a remedy for both of the judgments to which I have referred.
In order to achieve the required remedy, the SI makes a number of important changes to the fee-paid pension scheme. Most notably, salaried judges had access to different pension arrangements under the Judicial Pensions Act 1981 before the introduction of the JUPRA pension scheme in 1995. Those earlier arrangements for salaried judges had different accrual rates and scheme features and it has been necessary to retrospectively mirror those provisions and the associated eligibility criteria in the fee-paid pension scheme by introducing new “pre-1995” provisions. I hope that that is all clear—I jest, but it is quite a complex issue.
It is also important to update the schedule of eligible offices for the fee-paid pension scheme, to ensure that all judges who are eligible for a pension are included in the fee-paid regulations. Where eligibility has been established, those offices have been added to the schedule.
The SI also contains a number of other supplementary amendments that are necessary to ensure that fee-paid judges who are eligible for a pension settlement under the fee-paid pension scheme are given the correct settlement. One of those supplementary amendments is the inclusion of a facility for “small pension commutation”. Fee-paid judges do not always build up significant amounts of reckonable service, so we have included provisions that mirror the trivial commutation and “small’ pot” facilities that may be available in other pension arrangements.
The instrument also provides a further window for eligible judges—those with fee- paid service between 1995 and 2006—to purchase additional benefits in schemes constituted by the fee-paid regulations, or to vary purchases they have previously made. Again those provisions mirror those that were historically provided to relevant salaried judges.
The SI also updates the regulations that set out requirements for the payment of contributions by scheme members in respect of service prior to 7 April 2000; provides for a reconciliation of payments in lieu of pension, which have been made to judges, to formal entitlements under the amended regulations; and corrects some minor drafting errors in the existing regulations. Finally, the instrument regularises some partial retirement payments that were originally inconsistent with a restriction in the fee-paid regulations, holding that this option could only be exercised on or after 1 April 2017. That date restriction is also removed by the amendments.
We have undertaken on changes to the fee- paid pension scheme. The Ministry of Justice published a consultation on its proposals for amending that scheme on 24 June 2020, and 106 responses were received by the time the consultation closed on 18 September 2020. The responses were broadly supportive of the proposals, and on 10 December 2020 the Government response was published, setting out how the proposals had been refined to take account of those responses.
Officials at the devolved Administrations in Scotland, Northern Ireland, and Wales have been kept apprised of the development of the amendment regulations, in particular in relation to the offices whose jurisdictions are in those countries, and their views have been reflected in the drafting.
In the case of three fee-paid judicial offices included in the eligibility schedule, targeted consultations, including with office holders, were carried out to provide assurance that the correct service limitation dates are being applied. The service limitation date marks the point from which a salaried comparator judge became eligible for a judicial pension.
In conclusion, I would like to assure Committee members that the amendments to the fee-paid pension scheme set out in this SI are necessary to ensure that judges with historical fee-paid service get the pension benefits to which they are entitled and, together with other measures on judicial pay and pensions, those amendments will help to ensure that we can continue to support our esteemed judiciary.
This process with judges and the McCloud judgment has triggered further things beyond judges’ pensions. It may disorderly and beyond the Minister’s remit, but could he write to the Committee to say what other public sector pension arrangements will be affected following McCloud? What will be the costs? Does it mean that we will have to come back for SIs for every single pension arrangement within the public service or, after this initial one is done, we can just come back once?
My hon. Friend is correct that the McCloud judgment is an ongoing issue facing all pension schemes. The impact of that judgment is currently being worked through and any relevant changes that may be required will have to be brought forward for consideration. I will ensure that my hon. Friend gets a detailed letter explaining the processes.
It is a pleasure to serve under your chairmanship, Ms Nokes.
The Minister and I have faced each other across the Dispatch Box a couple of times, as we will later today, but this is the first time we have shared an SI. The Opposition are going to give him a very easy time of it this morning.
As the Minister has outlined, the SI amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which established the fee-paid judicial pension scheme, and provides pension benefits for eligible fee-paid judicial service from 7 April 2000 to 31 March 2022. It mirrors the pension benefits for salaried judges under the Judicial Pensions and Retirement Act 1993.
Today’s SI amends the 2017 regulations as required by the “O’Brien 2” litigation in the number ways that the Minister has described. It is complex, but we are happy to support the SI. I am a strong believer in equal pay for equal work, and the work that fee-paid judges and salaried judges undertake is the same. It is right that it is recognised as such in their pensions.
Can the Minister shed some light, however, on an additional ongoing issue about part-time judges’ pension payments in relation to the Retained EU Law (Revocation and Reform) Bill? The regulations that are being amended today are based on the UK’s obligation to give effect to EU directive 97/81, which banned discrimination against those who work part-time. There is some anxiety that if the Justice Secretary does not take action, those regulations may be revoked by the Retained EU Law (Revocation and Reform) Bill. That could have an impact on more than 11,000 serving or part-time judges, and it has been suggested that they could lose up to £3.5 billion if those regulations are not retained. It is said that, in some cases, that could amount to a staggering 43% pay cut.
I expect that the Government, having brought forward today’s SI, will undertake the necessary work to address the matter that I have raised, but given that there is no mention of judicial pensions on the retained EU law dashboard, I would be grateful if the Minister clarified his Department’s position on them. I hope that he will commit to retaining the 2017 regulations, as amended by today’s regulations.
It is good to see you in the Chair, Ms Nokes.
I too will give the Minister an easy time, and in fact the contribution from the shadow Minister, the hon. Member for Stockton North, has just made my task easier as well because he has raised the big question I intended to ask.
The long and short of it is that the regulations are required to implement various judgments and the SNP fully supports that. I also acknowledge the work that has been undertaken with the devolved Administrations, and I know that the Scottish Government support the draft regulations. As the shadow Minister has said, however, the key question is what happens to today’s regulations and the 2017 regulations amended by them as a result of the Retained EU Law (Revocation and Reform) Bill? The shadow Minister has said that it could amount to a 43% pay cut for some part-time judges.
Earlier this week, Joshua Rozenberg wrote an article about the matter in the Law Society Gazette in which he raised those same questions and noted:
“These concerns have been heightened by the fact that ministers fought against paying these pensions at every step from 2005 to 2019 — even though the government was advised in 1999 that part-time judges were covered by the EU directive.”
If at all possible, we need certainty about that today—what will be the implications of the Retained EU Law (Revocation and Reform) Bill for today’s regulations and the 2017 regulations which they amend?
First, I thank the shadow spokesmen for their contributions. They have raised a valid question and I am aware that the judiciary are somewhat exercised about it. I reiterate that the judiciary are valued, and I know that the Lord Chancellor is currently reviewing the options available under the Retained EU Law (Revocation and Reform) Bill to ensure that we comply with our obligations while maintaining the esteem in which we hold our judiciary. I cannot commit my right hon. Friend the Lord Chancellor, but I can tell the hon. Gentlemen that the issue is high on the agenda and it is one that we take extremely seriously.
I am rather fascinated by that particular answer. It sounds as though the Minister does not actually know whether the regulations that we are amending today will be retained in the long term. I promised to give the Minister an easy time, but why on earth are we in this room amending regulations that could be confined to the bin, not to mention all the ramifications of that, within a few months? Surely we should have a date by which this issue will be sorted out.
The amendments are needed to comply with existing legislation and to fulfil the existing commitments that we have given to the courts. That is why we are here, and why we need to pass the regulations. The scope of the Retained EU Law (Revocation and Reform) Bill and its impact on judicial pensions is being reviewed by the Lord Chancellor. I am happy to repeat that it is not the intention of my right hon. Friend to do anything that would undermine the esteem in which we hold our judiciary.
Question put and agreed to.
DRAFT TRADE (MOBILE ROAMING) REGULATIONS 2023
The Committee consisted of the following Members:
Chair: †Sir George Howarth
† Baynes, Simon (Clwyd South) (Con)
† Blake, Olivia (Sheffield, Hallam) (Lab)
† Davies-Jones, Alex (Pontypridd) (Lab)
† Duffield, Rosie (Canterbury) (Lab)
† Greenwood, Lilian (Nottingham South) (Lab)
† Holmes, Paul (Eastleigh) (Con)
† Jarvis, Dan (Barnsley Central) (Lab)
† Kniveton, Kate (Burton) (Con)
† Lewis, Brandon (Great Yarmouth) (Con)
† Lopez, Julia (Minister of State, Department for Culture, Media and Sport)
† Maynard, Paul (Blackpool North and Cleveleys) (Con)
† Mohindra, Mr Gagan (South West Hertfordshire) (Con)
† Nicolson, John (Ochil and South Perthshire) (SNP)
† Simmonds, David (Ruislip, Northwood and Pinner) (Con)
Spellar, John (Warley) (Lab)
† Swayne, Sir Desmond (New Forest West) (Con)
† Wood, Mike (Dudley South) (Con)
Nicholas Taylor, Committee Clerk
† attended the Committee
Fifth Delegated Legislation Committee
Tuesday 21 February 2023
[Sir George Howarth in the Chair]
Draft Trade (Mobile Roaming) Regulations 2023
I beg to move,
That the Committee has considered the draft Trade (Mobile Roaming) Regulations 2023.
I thank you, Sir George, for chairing the debate and hon. Members for the extremely impressive turnout today. I am pleased to move the regulations, which were laid before the House in draft form on 15 December 2022.
The Department for Science, Innovation and Technology —DSIT—now has telecoms in its remit. I am a Minister in the Department for Culture, Media and Support—DCMS—but for the sake of continuity I shall take this legislation forward today. It represents a world first in international trade: the UK-Norway, Iceland and Liechtenstein free trade agreement contains the world’s first provisions regulating mobile roaming charges. Many recent free trade agreements mention mobile roaming, but provisions in those agreements talk of co-operating or even endeavouring to co-operate. This FTA takes a further step, ensuring the regulation of charges in order to make a real difference to Britons travelling overseas, and we believe it is an example of the innovative trade deals we can strike that will bring real benefit to British travellers.
The regulations are necessary to implement domestically the UK’s international obligations under the terms of the agreement. Technically, the legislation implements the agreement’s provisions that regulate international mobile roaming wholesale charges. As hon. Members will appreciate, wholesale charges are what mobile operators charge each other, as distinct from retail charges, which are what they charge their customers. The wholesale charges that Norwegian and Icelandic mobile operators can charge UK operators will be capped by their domestic legislation. The legislation we are debating today will cap the charges that UK operators can apply to Norwegian and Icelandic mobile operators. The caps cover wholesale charges for mobile data, voice calls and text messages, and we expect the savings to be passed on to consumers in the form of surcharge-free roaming.
Although the regulation of wholesale charges in the agreement is with a view to facilitating surcharge-free roaming for British consumers in Norway and Iceland, it will not apply to Liechtenstein. Liechtenstein decided to opt out, given its operators’ commercial relationships with Switzerland. Owing to its topography and limited geographical area, a significant part of its territory is co-supplied by masts in neighbouring Switzerland. The legislation also ensures that Ofcom has the power to enforce the caps on wholesale charges.
Before debating the detail of the regulations, I want to quickly cover an issue that might prompt questions from hon. Members: the agreement’s coverage of wholesale, rather than retail, charges. The reason the agreement covers wholesale and not retail is that wholesale charges have to be covered by an international agreement. Wholesale charges are a cross-border issue, so an international agreement is required to cover them, and UK legislation alone cannot bind the charges of Icelandic or Norwegian operators. The parties concluded that the agreement should only cover wholesale, because that has to be covered by international agreement. The fact that it does not cover retail reflects a light-touch regulatory approach, and we think this will ensure that UK operators are protected from high wholesale charges and that they will subsequently pass on savings to their consumers. However, let me be very clear: one of the key publicly stated achievements on the face of the FTA was to keep costs low for holidaymakers and business travellers. The Government are committed to delivering that aim, and we expect those cost savings to be passed on. If they are not, we have the capacity to intervene.
As I say, we believe that the legislation represents a world first in a free trade agreement, and it is a promising precedent for the future. I expect the regulations to make a real difference to Britons travelling overseas, and I commend them to the Committee.
It is a pleasure to serve under your chairmanship, Sir George.
In the modern world, connectivity is a necessity, not a luxury, and this is no less the case when travelling abroad. A working connection is vital for accessing everything from banking, maps and tickets to local emergency services if things go wrong. Mobile connectivity also enables us to communicate with people back home, be they colleagues or loved ones, allowing businesses and families to stay connected across borders.
Since the end of the Brexit transition period, the majority of UK mobile operators have reintroduced roaming charges for customers travelling to EU and European economic area countries. I am therefore pleased to welcome the statutory instrument and the associated free trade agreement. By protecting UK operators from high wholesale charges, the legislation will see consumers in the UK come one step closer to accessing surcharge-free international mobile roaming in Norway and Iceland again. As per the free trade agreement, it is also welcome that the maximum rates the legislation will enforce are consistent with international benchmarks, particularly those currently in force in the EU and the EEA. However, there are still questions about how consumers will go on to benefit from the deal. The Minister mentioned how the Department will work to ensure any savings from caps are passed down from the telecoms companies directly to consumers at retail level. She mentioned that the capacity to intervene is there and that that would enable consumers to experience the benefits of surcharge-free roaming. Can she tell us about the exact circumstances in which she would intervene to ensure that happens?
Further, though this is a step forward for customers who want to roam in Iceland and Norway, there will be no such wholesale cap in the majority of other countries. Can the Minister confirm whether the Government plan to utilise free trade agreements similarly in the future, baking in maximum rates for wholesale roaming charges? In the meantime, how are Ministers working with Ofcom to encourage telecoms companies to offer a range of tariffs and add-ons, with clear and transparent prices for roaming so no customer is met with an unexpectedly high bill after travelling.
More generally, telecoms operators have shared with us concerns that legislation such as this will only benefit a specific number or subset of customers. Though any fall in roaming prices is welcome, those most in need of reductions in their mobile bills are not those who can frequently fly but those bearing the brunt of the cost of living crisis, such as people on universal credit or those who have been forced to choose between heating and eating. What efforts are being made in the Department, alongside this agreement, to encourage and advertise cheap social mobile tariffs across the industry so everyone can benefit? In particular, I am interested in hearing about how the Department is ensuring social mobile tariffs are advertised online and in ways accessible to those currently unable to afford an internet connection.
In conclusion, it is vital that we honour the commitments made to Norway and Iceland in our free trade agreement through this legislation today. I look forward to the price fall holidaymakers and business travellers will hopefully receive as a result, but more must be done if we are to ensure the benefits are directly passed on to the consumer and fully realised and replicated domestically, where they are truly most needed.
I thank the hon. Lady for her warm support of this particular legislation. It has been a pleasure debating with her today and I thank her for her comments.
I do not intend to reinvestigate Brexit, but we put forward proposals during the negotiations with the EU to try and get this legislation applied to our relationships with other EU countries. The hon. Lady asked about whether we intend to try and bake this into future free trade agreements. I cannot speak for the Department for Business and Trade, as it is now known. It is a great roadmap, put forward within the Department’s negotiations with the European Free Trade Association nations, and I anticipate we will see similar provisions, given that I suspect this will be warmly welcomed by consumers in all affected countries.
The hon. Lady asked about social tariffs. We agree on how important they are, as an innovation that came about during the pandemic when we worked closely with the mobile network operators. I hosted a roundtable with them to see what more we could do as a team to try and make sure there is awareness of those tariffs, which is currently very low. People on universal credit can get very low rates on their broadband and telecoms packages, with very good high-speed connections for something like £10, and they should be aware of that. We are working closely with the mobile network operators to try and improve the communications and with the Department for Work and Pensions to make sure eligibility can be proven quickly.
I am happy to continue discussions with the hon. Lady on how we can improve the situation for consumers and get elements such as those being debated today into future free trade agreements so we can continue to benefit travellers, customers and businesses when they go abroad.
It is a pleasure to serve under your chairmanship, Sir George.
The new free trade deal with Iceland and Norway includes a commitment to co-operating on mobile phone roaming charges. The legislation just sets the maximum wholesale charges that UK-based firms can charge Norwegian and Icelandic firms for using their services here, in exchange for the same roaming there. [Interruption.]
That does not guarantee that retail rates will be free or low to roam, but it opens up the possibility. It is very small in scope compared to the former free roaming in the entirety of the EU that we once enjoyed, which the EU has extended to all member states for another decade.
Before the tremendous folly of Brexit, we had free roaming in all 27 member states—frictionless, borderless, open communications. Years later, with many suppliers charging big fees for using our phones abroad, we are presented with this global Britain legislation that will perhaps prevent us from getting ripped off when we travel to Norway and Iceland. So much, so little; what a metaphor for the sorry mess of Brexit surely.
I am tremendously in favour of Scotland having close relationships with our Nordic neighbours, but we should be more ambitious than this. I do not doubt that diligent civil servants have done their very best behind the scenes to bring the legislation to fruition, but it is a shame surely that they had to expend their energy and devote their time to securing something significantly less good than what came before.
I know. I have covered some of the questions in relation to wholesale and retail charging, but I appreciate the concerns that have been raised about that. It is on the face of the free trade agreement that the intention of the legislation is to reduce prices for consumers, and I hope that will give a level of reassurance in that regard.
As I have said, we are trying to get a light-touch regulatory approach. We think it is in the interests of mobile network operators to pass those savings on to consumers, but we will consider intervening if that is not the case. Ofcom is also doing a bit of work on data roaming, which relates to one of the points raised by the hon. Member for Pontypridd, in relation to transparency of charging.
I hope the regulations will be entirely welcomed and I commend them to the Committee.
Question put and agreed to.