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A New Judicial Pension Scheme (NJPS 2015) was introduced in April 2015 under the Public Service Pensions Act 2013. Active scheme members on that date were transferred to it, except those covered by transitional protection arrangements for those ‘closest to retirement’, who were able to remain in their existing scheme (for most serving salaried judges, this was the scheme established under the Judicial Pensions and Retirement Act 1993 (JUPRA)) either until retirement or for a limited period, depending on their age.

NJPS 2015 has significant differences from the earlier schemes. In particular:

  • It provides pension benefits based on career average revalued earnings (CARE), rather than final salary;
  • Members have a pension age linked to their State Pension age; and
  • It is registered for tax purposes (whereas the pre-existing schemes were tax-unregistered, which meant that members were not subject to annual allowance and lifetime allowance limits on tax-relieved benefits accrued within the schemes).

The MoJ says the 2015 reforms have had a disproportionate impact on the judiciary, leading to recruitment problems (MoJ consultation, July 2020, para 3).

 McCloud

The transitional protection arrangements for the 2015 pension reforms, were challenged in the courts. In January 2017 an Employment Tribunal found in McCloud v Ministry of Justice, that the transitional arrangements for judges were unlawful. This was upheld by the Court of Appeal, which in December 2018 concluded that:

  • We have found that in both the judges’ and firefighters’ cases the manner in which the transitional provisions have been implemented has given rise to unlawful direct age discrimination. In neither case could the admitted direct age discrimination be justified. In the Judges’ case we see no error in the reasoning of Judge Williams either in his assessment of aims or means.

The court remitted the matter back to the Employment Tribunal to determine a remedy in respect of the litigants (HCWS 1725, 15 July 2019)

The Ministry of Justice (MoJ) launched two consultations in July 2020, responding on 25 February 2021:

Pensions for fee-paid judges

The MoJ is also responding to litigation in the O’Brien and Miller cases, which established the entitlement of fee-paid judges to pension benefits in respect of service before 2000:

  • In February 2013, the Supreme Court decided in a case referred to as O’Brien 1 that fee-paid judges had been treated less favourably than relevant full-time salaried judges because they had not been entitled to a pension. This resulted in the introduction of the Fee-Paid Judicial Pension Scheme (FPJPS) for eligible fee-paid judicial office holders with reckonable service from 7 April 2000 up to 31 March 2015. Transitional protection or tapering arrangements may apply in respect of service after 31 March 2015, in respect of a transfer to JPS 2015.
  • In O’Brien 2, in November 2018, the European Court of Justice concluded that part-time work before 7 April 2000 (the deadline for transposing the Part-time Workers’ Directive into UK law) must be taken into account when calculating a pension.
  • In December 2019, the Supreme Court held in Miller that the three-month time limit for making a claim in relation to the O’Brien judgments ran from the date of a claimant’s retirement from all judicial offices and not from the end of each fee-paid appointment.

This meant the Government needed to make pension scheme membership available to eligible fee-paid judges in respect of service before 7 April 2000 and amend the membership criteria for FPJPS to reflect the Miller judgment.

In a consultation on its remedy proposals in June 2020, the MoJ explained that the current provisions of FPJPS could be extended to cover service between 31 March 1995 until 31 March 2015. For service before 31 March 1995, it proposed to provide pro-rata pension entitlement based upon the benefits that were available to salaried judges in judicial schemes at the relevant time. In its consultation response in December 2020, the MoJ said it would take forward its proposals to change FPJPS. It plans to lay regulations in early 2022 so that the amendments to FPJPS to provide the O’Brien 2/Miller remedy could come into force in April 2022.

The Judicial Pensions (Fee Paid Judges) Amendment Regulations 2021 (SI 2021/444) added specified judicial offices to the list of those eligible for FPJPS membership (Explanatory Memorandum, para 2.1, 7.2 and 10.1; June 2020 consultation, Section 6).

A separate consultation on proposals to increase the mandatory retirement age for judges is discussed in Commons Library Insight, Judicial retirement: plans to move from 70 to 75, March 2021).


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