Summary of the Pensions Judicial Review
The Judgement supported the UK Government’s claims it had acted correctly in bringing in changes to the State Pension Age and rejected the grounds on which the claimants disputed this. Feisty Women has summarised the reasons the claimants’ case failed. We want to learn lessons from the failure of the Judicial Review to inform our thinking as we pursue a different route through the legal system. For information about our legal challenge, please go to www.feistywomen.co.uk.
The Judgement from the Judicial Review runs to 43 pages. For those of you who want to see the entire document, the link is at the bottom of this bulletin. The 3 key points the case failed on were:
· Pensions Acts are “primary legislation” and it is not within the scope of a Judicial review to overturn a democratic process and Acts of Parliament.
· The 1995 legislation is now over 20 years old.
· Claims regarding age discrimination were misconceived, since age discrimination in the provision of State benefits does not fall within the scope of EU law. Even if they did, the DWP lawyers claimed they have been the subject of very great delay and should be excluded on grounds of time.
BASIS OF THE REVIEW
Two fifties-born women sought a Judicial Review of the mechanisms chosen to implement the Government’s policy of raising and equalising the State Pension Age (SPA) and on the failure to inform women of the changes.
Their claims were based on the suggestion there was direct discrimination on the grounds of sex, or age and sex combined, in regard to the timetable for changes to the SPA in the Pensions Act of 1995 and in subsequent Acts in 2007 and 2011.
They further claimed the transitional provisions, together with the notice provisions set out in timetables of birth dates, were unlawful and a breach of the legitimate expectations of fairness in common law.
The defendant, the Department for Work and Pensions (DWP), rejected all of these claims. Their arguments were as stated in the three key points listed above.
Q&A ON THE JUDGEMENT
Q. Why did the case fail in regard to discrimination on ground of age and sex?
A. The Old Age and Widows Pension Act 1940 lowered the pension age for women from 65 to 60 to recognise social circumstances of that time and was an act of discrimination in favour of women, which in effect created a relative disadvantage for men.
Furthermore, in 1995 the UK Pensions Act was seeking to conform with a directive of EU law which had found, in a case that came before the EU courts, that it was contrary to that directive for a pension scheme to provide for unequal benefits for men and women. Therefore the judges disagreed with this ground of the claimants’ case - finding the Government was acting reasonably in order to change this discriminatory practice.
Q. The lawyers acting for the claimants said the Government failed to consult properly before passing the Pensions Act 1995. Surely that cannot be fair?
A. The DWP produced evidence to show it had consulted widely with many different organisations. It also successfully argued that various reports, white papers and other instruments of government had been properly used before bringing in the legislation.
Q. What about the claim that Government failed to inform women directly about changes to their SPA and that many women did not know about the changes until they were approaching 60 – the age they had expected to retire?
A. The judges agreed with the DWP there was no legal requirement for the Government to notify people, either in general terms or to a specific group of people that they may be affected by primary legislation. The fact is that passing primary legislation through Government is in itself a public process, involving various consultation processes and green and white papers with many opportunities for anyone with an interest to question it or to ask their MP to do so on their behalf.
The judges further took the view that the evidence given by the DWP in respect of its communication of changes appeared to be adequate, proper and reasonable.
The judges also found that even if they had been persuaded there should have been an obligation of notification, no remedy would be available to the court because no court order can set aside the implementation of primary statute (law) on such a basis.
WHERE TO FROM HERE?
So, how can Feisty Women proceed with another case when this one has failed? As we explained in last week’s bulletin, our target is not Pensions Legislation. We do not believe the clock can be turned back because women feel they have been unfairly treated. It is clear from this Judicial Review that, regardless of whether women feel the increase in pension age was morally wrong, under the letter of the law the Government is seen to have acted properly.
For this reason, Feisty Women has decided to attack failure of procedures required by the Equality Act 2010 rather than attempt to have primary legislation overturned.
This is going to be a long game and there are no guarantees of success, but Feisty Women is in this for the long haul.