Motion to Consider
My Lords, I will set out the purpose of the draft regulations in turn.
First, the fee-paid regulations are required to establish a pension scheme for eligible fee-paid judges, to mirror the existing pension scheme for salaried judges established by the Judicial Pensions and Retirement Act 1993. This is required following the court’s decision in the case of O’Brien v Ministry of Justice. These regulations make provision for a pension scheme for the benefit of those people who have held eligible fee-paid judicial office between 7 April 2000 and 31 March 2015. They also establish the Fee-Paid Judicial Added Voluntary Contributions Scheme, the Fee-Paid Added Years Scheme and the Fee-Paid Judicial Added Surviving Adult Pension Scheme to enable members of the principal scheme to pay voluntary contributions towards the costs of additional benefits under one of more of these additional schemes.
Following the case of O’Brien v Ministry of Justice and subsequent decisions it is now established law that a lack of a pension and other specified benefits amounted to less favourable treatment than some fee-paid judicial office holders in comparison to salaried judges doing the same or broadly similar work, contrary to the part-time work directive. The Ministry of Justice made a commitment to implement a pension scheme for these fee-paid judges. This commitment was honoured for future service, subject to transitional protection, by the Judicial Pensions Regulations 2015. However, a new scheme is required as the remedy in respect of reckonable fee-paid service from 7 April 2000—the date when the part-time work directive ought to have been transposed into UK law. The power to create such a scheme was created by Section 78 of the Pensions Schemes Act 2015, which inserted a new Section 18A into the Judicial Pensions and Retirement Act 1993.
The draft fee-paid regulations have been the subject of a detailed public consultation and were modified as part of that consultation process, taking account of responses and as part of our own review of the draft. A response to the consultation was published on 27 February alongside the final draft regulations.
The amendment regulations amend the Judicial Pensions Regulations 2015 to take account of the creation of the fee-paid judicial pension scheme and ensure parity of treatment between individuals with entitlement in the existing Judicial Pensions and Retirement Act 1993 scheme and those with entitlements under the fee-paid scheme in respect of their pension entitlements under the 2015 regulations. In addition, we are taking the opportunity to amend the 2015 regulations to make a number of other changes: to amend a drafting error in Regulation 1 of the 2015 regulations; to enable the Lord Chancellor to determine the eligibility of particular Scottish fee-paid judicial officeholders to join the pension scheme created by the 2015 regulations; to remove negligence as a basis for forfeiture or set-off; to make a correction to the definition of index adjustment for revaluation purposes; and to apply full and tapering protection for those judges who were in fee-paid office on 31 March 2012 but who have subsequently been appointed to salaried office.
The 2015 regulations were made under the Public Service Pensions Act 2013 to create a career average pension scheme for judicial officeholders as part of the Government’s wider reform of public service pensions. This is the first time the 2015 regulations have been amended.
Thirdly, I turn to the additional voluntary contributions regulations, the purpose of which is to make provision to establish a judicial additional voluntary contributions scheme. This is a money purchase scheme that enables scheme members to make contributions within a range of investment options. This is in addition to their contributions to the 2015 scheme. The AVC scheme is to be managed by the Lord Chancellor and the Judicial Pensions Board will oversee the governance. The 2015 judicial pension scheme was established on 1 April 2015 in response to the Public Service Pensions Act 2013. The 2015 scheme applies to fee-paid and salaried judicial officeholders.
The existing judicial pension schemes provided a facility to contribute to a money purchase pension scheme and the same facility is provided for members of the 2015 scheme through these AVC regulations. This includes the pension flexibilities contained in the Taxation of Pensions Act 2014 and the Pension Schemes Act 2015. Amendments to the additional voluntary contribution scheme established under the older judicial pension scheme, made by the Judicial Pensions and Retirement Act 1993, are being made in separate instruments containing similar regulations, which also give effect to the pension flexibilities.
To summarise, the fee-paid regulations are necessary as the remedy to provide eligible fee-paid judges with pension benefits that are equivalent to their salaried comparators. The amendment regulations are necessary as they introduce a range of amendments required to the 2015 judicial pension scheme. The additional voluntary contributions regulations are necessary to honour the department’s commitment to provide such a facility to members of the 2015 judicial pensions scheme. I hope that noble Lords will welcome these three sets of regulations as necessary to make important provision for judicial pensions. This is in terms of the Government’s legal obligations and to meet outstanding commitments, and to ensure that all the necessary arrangements are in place for a consistent approach relating to the relevant provisions across the judicial pension schemes. I therefore commend these draft regulations to the Committee.
My Lords, I must declare a paternal interest since my daughter is a part-time, fee-paid district judge. The noble and learned Lord will, no doubt, be particularly pleased with the Judicial Pensions (Amendment) Regulations 2017 inasmuch as they contain a rather rare provision for the Scottish Government to request permission to join a national UK scheme, which is a remarkable volte face from the present Administration in Edinburgh. No doubt the noble and learned Lord will make that point on his next return to that city, and I wish him well in such an approach.
The three regulations dealing with judicial pensions are, of course, welcome so far as they go, but they come at a time when we face a shortage of judges and apparent difficulty in finding sufficient numbers of suitable applicants to fill a rising number of retirements. The Lord Chief Justice’s report of 2016 referred to,
“serious concerns about recruitment to the judiciary, in particular the ability to attract well-qualified candidates for positions in the higher levels”.
He pointed out that this created an impact both on the administration of justice and the position of the UK as a forum for international business litigation, where we are already facing growing competition from other jurisdictions.
The degree of unhappiness with the situation is reflected by results of a recent survey which shows that nearly half of High Court judges plan to retire early. Respondents to that survey alluded to resentment over loss of earnings, deteriorating working conditions and even fear for their personal safety in court. The latter will not have been helped by the scurrilous campaign against the judges by sections of the media and the further reaches of the Conservative Party and of UKIP, which were roundly denounced by the Minister, much to his credit.
A survey of judicial attitudes last year showed that 42% of all judges would leave if they had a viable option, nearly double the number of the previous survey in 2014. A more recent survey suggests that 47% of High Court judges and 36% of all judges indicated they would consider early retirement from the Bench over the next five years. Their attitude is partly coloured by the large number—78%—who suffered a loss of net earnings over the past two years and the 62% who were affected by pension changes. The Lord Chief Justice warned in 2016 that a new High Court judge would have a pension less than that of a District Judge, which is hardly conducive, one might think, to retention or recruitment to the High Court. He also felt that the situation was likely to have a considerable inhibiting effect on promoting gender and ethnic diversity, which the survey disclosed. Significantly 43% of judges felt unappreciated by the public but, tellingly, only 3% felt they were esteemed by the media, and, shockingly, only 2% felt they were esteemed by the public.
If this were not bad enough, one-third complained of the quality of court buildings and two-thirds referred to the low morale of court staff. Just over half the judges expressed concerns for their safety in court, partly due to the number of unrepresented litigants, especially in somewhat fraught cases in the family side of the courts’ work. The same proportion said that out-of-hours work was affecting them—a rise from 29% in 2014.
Currently there is a shortage of 25 High Court judges and between 120 and 140 circuit judges. Lord Justice Burnett, who is vice-chairman of the Judicial Appointment Commission, has complained that suitable applicants for the High Court have been insufficient in the past two years, while the demands on the judiciary continue to grow across the whole system. It would appear that only 55 applications were made last year for 25 vacancies and only eight were filled.
This is also exemplified by the shortages in the tribunal system. In 2012 there were 347 fee-paid and 132 salaried judges in the First-tier Immigration Tribunal. Last year the numbers had fallen to 242 fee-paid and only 77 salaried, while in the Upper Tribunal numbers had fallen from 40 fee-paid to 35. Unsurprisingly, this has led to an increase in outstanding cases of 20% to just under 63,000, with a nearly 50%, or 15 week, increase in the time for disposal of a case to a total of 48 weeks.
There are clearly serious difficulties in attracting and retaining sufficient judges at most levels of our judicial system. The Lord Chancellor recently stated that she appreciated,
“concerns raised around pay and pension”,
and acknowledged that:
“Having a fair and effective remuneration scheme in place is critical to the continued attraction and retention of high-calibre judges”.
She went on to affirm that she was,
“working with the Lord Chief Justice and senior judiciary to address wider judicial concerns by providing judges with greater support in the courtroom, opportunities for development and progression, and improving the environment in which they operate”.
These are welcome words, but they are at odds with the current position, even after these regulations take effect.
The noble Lord, Lord Kakkar, the recently appointed chair of the Judicial Appointments Commission—who is, ironically in the circumstances, a distinguished surgeon not a lawyer—has warned that there,
“could be a serious shortfall”,
in the pending appointments of 25 High Court judges. He went on to say that there is a serious issue here, that these trends “are very worrying” and that,
“it is becoming more difficult to appoint to the judiciary”.
What steps will the Government take, and when, to fulfil the Lord Chancellor’s pledge? Today’s regulations are unlikely to make a significant contribution to the growing crisis in our courts. The noble and learned Lord is unlikely to be able to give us a clear indication of what the Government have in mind, but he could at least give us a timescale as to when conclusions will be reached. What is happening so far is not making any significant impression on a serious backlog and a serious prospect for the future.
I thank the noble Lord for his observations. I appreciate that these regulations may be only a small step in trying to ensure that we are in a position to maintain what is still a world-class judiciary that is respected around the globe, not just in this country.
Recruitment to the Bench has often been an issue in circumstances where we seek to appoint only the best. There are competing issues when it comes to appointment to the High Court Bench. It is not simply a matter of salary, nor of pension, although I readily acknowledge that these matters have to be addressed. That is not what drives people towards the higher ranks of the judiciary at a later point in their career. Rather, I would suggest it is the desire to put something back into a system of which they have been a part for many years. We are succeeding there.
The noble Lord referred to the chair of the Judicial Appointments Commission, the noble Lord, Lord Kakkar, who is taking steps to broaden the pool of talent that can be attracted to the upper reaches of the judiciary, including to the solicitor branch of the profession, which has often been, if not ignored, perhaps overlooked to a greater or lesser extent when it comes to judicial appointment. They also address direct appointment to try to ensure that people do not feel that they have to go into a judicial career part time for many years before they can find themselves eligible for appointment to the High Court Bench. Steps are therefore being taken.
I infer from the noble Lord’s comments that he will welcome the Prison and Courts Bill that we recently introduced in the other place and the developments that that will bring about in court reform, in particular digitisation of the court process. That will ensure that a greater degree of judicial time can be made over to matters that should truly engage the requirements for our higher judiciary. I look forward to his assisting with that Bill as it progresses through our House. I am obliged to the noble Lord.