The Ministry of Justice (MoJ) – whose budget has faced major cuts over the past decade – faces having to pay up to £1bn in pensions for part-time judges, according to the claimants’ solicitors.
The Supreme Court unanimously ruled yesterday that claims made by up to 1,000 judges were not out of time and could be brought within three months of their retirement.
In September, justice minister Chris Philp said the much-touted 40% cut in the MoJ’s budget since 2010 was actually 21% because of the additional funding that has gone in.
Chancellor Sajid Javid’s spending review promised a £511m increase in the MoJ’s budget to £8.1bn. But permanent secretary Sir Richard Heaton said the money would be spent on “keeping the lights on” and “a third of the extra stuff we need”.
Before the Supreme Court, the MoJ argued that the less favourable treatment or detriment suffered by the judges must have taken place during the time they held their offices and they were too late to claim when they retired.
Delivering the judgment of the court, Lord Carnwath said part-time judges could complain that their terms of office did not include a pension both during the period of their service and at the point of retirement. “The former does not exclude the latter.”
Lord Carnwath said he agreed with counsel for the claimants that “the point of unequal treatment in this case” occurred at the time that the pension fell to be paid, according with the “common sense” of the matter.
“It may be that the appellants could have complained of less favourable treatment, as compared to their full-time colleagues, by reference to the lack of any equivalent provision for a pension in their terms of office.
“But that does not detract in any way from the less favourable treatment they undoubtedly suffered, or would suffer, at the point of retirement.”
Regional firm Browne Jacobson, which represented the four judges at the Supreme Court, said it acted for around 400 part-time judges in all and that it anticipated that over 1,000 would be entitled to bring claims – at a cost to the MoJ which “could reach £1bn”.
Caroline Jones, senior associate at the law firm, said: “This judgment means that fee-paid judges who were subsequently appointed full-time salaried members of the judiciary will now be entitled to pensions in respect of their former part-time service.”
Robin Allen QC and Rachel Crasnow QC of Cloisters, who represented the judges in court, said in a joint statement: “While our submissions were always based on the law as we understood it, it has also seemed to us deeply unfair to hold that where a person suffers a pension regime which discriminates against part-time workers, they should have to bring proceedings before they actually retire and claim their pension.”
A spokesman for the MoJ said: “While disappointed, we accept the court’s judgment and are considering how to implement it.”
The Supreme Court heard in Miller and others v Ministry of Justice  UKSC 60 that the appellants were four judges, each of whom had one or more appointments as fee-paid part-time judges, in some cases moving between part-time and full-time salaried appointments.
While they were working part-time for a daily fee, the judges had no rights to a pension, because these were reserved to those being paid on a salaried basis and holding ‘qualifying judicial office’.
The judges brought claims on the basis that they had been the subject of less favourable treatment under the Part-Time Workers’ Directive, as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR).
Regulation 5 of the PTWR provides that a part-time worker is entitled not to be treated by their employer less favourably than the employer treats a comparable full-time worker.
Lady Hale, president of the Supreme Court, Lord Reed, the deputy president, Lord Wilson and Lady Arden agreed with Lord Carnwath that the appeals should be allowed.
Dermod O’Brien QC, a Crown Court recorder, fought an eight-year battle with the MoJ over his pension rights as a part-time judge, culminating in a Supreme Court ruling in 2013 that recorders were entitled to a pension, despite being fee-paid judges.
The Supreme Court referred the ruling to the European Court of Justice in 2017, which ruled in November 2018 that periods of service prior to the transposing of the directive in April 2000 must be taken into account for the purposes of calculating pension entitlements.
The MoJ accepted the argument in the case of O’Brien, but not in the case of Miller.