The following press release was issued by Joshua Rosenberg QC yesterday. It is interesting in that, to me, it is the first sign that some truly embarrassing pressure might now be put directly upon the Minister in charge. I still doubt the time-efficacy of a legal solution, but I do think that this move is an excellent one in every way – if the sex-discrimination charge sticks.
But as always, the task is to piggy-back SPA Waspi awareness onto the back of it….
Six High Court judges are taking the Lord Chancellor to an employment tribunal next week, accusing Liz Truss of unlawfully discriminating against them on the grounds of their age — which they argue is contrary to the rule of law.
In addition, one of the judges is accusing the Lord Chancellor of discriminating against her because of her sex while another, of “Asian British ethnic origin”, accuses Truss of racial discrimination.
All the claims relate to reduced benefits the judges can expect to receive under a new judicial pension scheme introduced last year.
A two-week hearing has been arranged before a tribunal judge who is not affected by the new pension arrangements. There could be further hearings before appeal judges.
It’s thought to be unprecedented for serving judges to sue the Lord Chancellor and the Ministry of Justice.
In their grounds of claim, filed with the employment tribunal, the judges say their conditions of service “reflect the established constitutional principle, dating back to (at least) the Act of Settlement 1701 that neither the legislature nor the executive should subject judges to a reduction in pay (including deferred pay such as pensions) during the term of their offices, as has occurred in the case of the claimants”.
They say this principle is “designed to protect the independence of the judiciary, a key element of the rule of law”.
The six claimants are Sir Nicholas Mostyn, 59, Sir Roderick Newton, 58, Sir Philip Moor, 57, Dame Lucy Theis, 55, Sir Richard Arnold, 55 and Sir Rabinder Singh, 52.
All sit in the Family division of the High Court apart from Arnold (Chancery) and Singh (Queen’s Bench). Their retirement age is 70. They were appointed on the understanding that they would never return to practice as barristers.
Their grounds of claim say that each of the six was automatically enrolled in a judicial pension scheme on appointment. The new pension scheme, introduced in 2015, was “substantially less beneficial”.
Under the new scheme, serving judges are divided into three groups.
Those who were 58 years or older on 1 April 2015 retain their membership of the old scheme. None of the six fall into this category.
Those born between 2 April 1957 and 1 September 1960 can continue until a closing date between 2017 and 2022. Those born after 1 December 1960 are excluded from further active membership of the old scheme but may join the new one. There are exceptions for those who have previously sat part-time.
Three of the six claimants are part of the second group and three are in the third group.
Mostyn, Newton and Moor say they are treated less favourably because of their age than those in the first group. Theis, Arnold and Singh say they are treated less favourably because of their age than judges in the other two groups.
Theis and Singh argue that female judges and those from ethnic minorities are under-represented in the first group of judges — those who were 58 or older by April 2015. They say they are therefore more likely to be adversely affected by the new pension arrangements than white male judges.
Shah Qureshi, head of employment at Bindmans LLP, told me: “We can confirm that we act for a small group of judges in relation age, race and sex discrimination issues arising out of the new judicial pension scheme. As this matter is currently awaiting judicial determination we are unable to comment further.”