The government is facing an unprecedented revolt by High Court judges, who are considering legal action over changes to their pension rights.
The Lawyer has learnt that both the Department for Constitutional Affairs (DCA) and a group of judges have instructed barristers at the UK’s leading pensions set Wilberforce Chambers.
Confirming the story, a senior High Court judge told The Lawyer: “If you’re asking me, ‘Is suing the DCA a theoretical proposition?’, I don’t see why not. If you’re asking me, ‘Is it actively under consideration?’, I’m not in a position to say.”
The Lord Chancellor’s legal advisers at the DCA have instructed Wilberforce’s Michael Furness QC, one of the country’s leading pensions experts, and junior Michael Tennet to help the Government find an alternative to the Judicial Pensions Bill, which it expects backbenchers to reject. Wilberforce declined to comment.
A DCA spokesperson declined to comment on alternatives to the bill, but did say: “Our bill is still the preferred option, as Lord Falconer wants to make sure the judiciary has the right package and the appropriate package for their position and standing.” Representatives from the Judges’ Council, of which all judges are members and which acts as the collective voice of the judiciary, have met with the DCA, but have not yet found a solution. A senior High Court judge is leading a working party on the crisis.
“I can hardly walk out of my room without someone accosting me to talk about pensions,” commented one judge.
Tension between the Government and the judiciary has been compounded over the past two years and the pensions crisis could be the breaking point. A rift first appeared in 2003 when Lord Justice Judge raised concerns about the constitutional reforms proposed by Lord Falconer, which eventually led to the Constitutional Reform Bill.
In October this year the new Lord Chief Justice Lord Philips of Worth Matravers warned that politicians should not browbeat the judiciary over the interpretation of legislation.
His comments were followed by criticism from Tony Blair over the ineffectiveness of the justice system. In turn, Lord Falconer was forced to defend his role as the protector of judicial independence, telling a Commons committee: “I’d certainly regard my role as making sure that at no stage does the Executive, by what it says publicly, put undue pressure on the judges to reach or procure results in particular cases, because that would plainly be undermining the independence of the judiciary.”