A two-week hearing has begun on behalf of more than 200 judges who have issued claims at the London Central Employment Tribunal against the Lord Chancellor, Liz Truss, and the Ministry of Justice for direct age discrimination, indirect race and sex discrimination, and equal pay.
The 210 claimants bringing the action cover all disciplines and jurisdictions and include employment judges, circuit judges, district judges, sheriffs, and immigration judges. Included in the group are also six High Court judges: Dame Lucy Theis, 55, Sir Richard Arnold, 55, Sir Philip Moor, 57, Sir Nicholas Mostyn, 59, Sir Roderick Newton, 58, and Sir Rabinder Singh, 52.
The claims follow changes made to judicial pensions in April 2015. From that date, judges born after 1 April 1957 were required to leave the judicial pension scheme and were instead offered membership of what the judges argue is a far less beneficial new judicial pension scheme.
Shubha Banerjee, an associate solicitor at Leigh Day, who is representing the 204 judges, argued that the changes constitute unlawful direct age discrimination.
‘The judiciary, having traditionally been mostly male and white, has undergone recruitment drives in recent years to improve its diversity and has sought to recruit more women judges and more judges from a black and minority ethnic background,’ she said. ‘As a result of these successful recruitment drives, there are far more women and BME judges in the younger, disadvantaged group.’
She continued: ‘The government accepts that younger judges are being less favourably treated, and that the female and BME judges are placed at a disadvantage when compared with other judges, but will try to argue that it can objectively justify behaviour that will otherwise be unlawful discrimination under the Equality Act.’
Though High Court judges currently earn a salary of around £180,000 a year, counsel for the claimants, Michael Beloff QC of Blackstone Chambers, told the tribunal today that barristers expect an almost 70 per cent drop in income upon becoming a judge, but what they did not expect was government cuts to the ‘compensating benefit’, their pensions.
Appearing before the House of Lords constitution committee in April, Lord Thomas of Cwmgiedd said the Treasury’s decision to impose a £10,000 tax-free cap on pension contributions was having a very serious effect on judicial recruitment.
‘The result is that a new High Court judge will have a pension, at the end of the day, that is materially less than a district judge,’ said Lord Thomas. ‘We are paid on the basis that we get a salary and we get a pension. But if you can’t take the pension because the fiscal effects are so large, you will get no compensation for that.
‘The effect of the tax changes on the judiciary has been that what has been regarded always by people coming to the bench as a very important part of the remuneration package has, through fiscal means which I am sure were unintended, produced this effect.’
In the Lord Chief Justice’s Report, published earlier this month, Lord Thomas underlined the low morale of the judiciary. Judicial attitude surveys conducted in 2014 and 2016 have highlighted growing concerns over workload and well-being, which the most senior judge in the country said must be addressed, along with concerns over the ability to recruit ‘well-qualified candidates for positions in the higher levels of the judiciary’.
Today’s legal challenge reaches the High Court at a time when the Lord Chancellor’s relationship with the judiciary is already damaged, following her failure to defend the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales from tabloid attacks in the wake of the Miller judgment.
Last week the justice secretary announced plans to shake up judicial appointments with a new fast-track process to increase diversity on the bench. Delivering her proposals to the Spark 21 conference from the First 100 Years Project, Truss said she could think of ‘no higher calling than joining the judiciary’.
John van der Luit-Drummond is deputy editor of Solicitors Journal