Part Time Judges Action Group – Progress Report and Request for Further Support

Date: October 30, 2007

Expertise: Employment

I am writing this to all those who were kind enough to subscribe to my original request for financial support (other than those who wished their contributions to be anonymous and whose details I have not therefore retained).

There were a number of supporters to whom I could not write personally to thank them. I was and am genuinely grateful for the financial assistance and the moral support which your letters have conveyed. As will be apparent one of the purposes of this article is to seek further financial support.

The basics of the story so far are as follows. The Part-time Workers Directive (97/81/EC) was enacted on 15 December 1997; it required Member States to outlaw discrimination against part-time workers and to treat such workers the same in relation to conditions and pay (including pensions) pro rata temporis as equivalent full time workers. It applied equally to those working in the public sector as to those working in the private sector. It contained no provision entitling Member States to continue discrimination in respect of judges. The United Kingdom was required, by another Directive made in April 1998, to implement the Part-time Workers Directive in domestic law by 7 April 2000; so the government had plenty of time to draft legislation and go through a proper consultation process.

The DTI was the government department responsible for promoting the regulations which were to be enacted to give effect to the Directive. It was pretty dilatory in doing so. Eventually in January 2000 there was a consultation document, a promise of consultation with all those likely to be affected and draft regulations. The Select Committee thought that the draft regulations had been drawn too restrictively and the government accepted that view. The minister gave assurances to Parliament such that the expectation would have been that discrimination against part-time judges would no longer be permitted. Meanwhile, unbeknown to anyone outside the government departments concerned, there was communication between the LCD (later to become the DCA and now the DoJ) and the DTI (later to become the BERR) which resulted in the insertion into the Regulations at a very late stage of the infamous Regulation 17 permitting the government to continue to discriminate against “the holder of a judicial office if he is remunerated on a daily fee-paid basis”. There was no prior notification of this, no public consultation, no reference in parliamentary debate and, it appears, the public were wholly unaware that Regulation 17 had been inserted until the finally enacted Regulations (The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000) appeared on the DTI website on 21 June 2000.

My personal involvement really started in 2004 when retirement as a Crown Court Recorder on 31 March 2005 following my 65th birthday loomed ahead. I had some experience – with the assistance of a very able EU law junior – of the law relating to the implementation of EU Directives in the field of motor insurance but I had little if any knowledge or experience of employment law or practice. I first wrote to the Bar Council seeking advice and assistance in October 2004. The Bar Council finally responded in February 2005; it made encouraging noises, refused help and advised me that I had until 30 September 2005 to commence proceedings (in the Employment Tribunal).

A political/negotiated route to equal treatment necessitated discovery of the reasoning behind the government’s insertion of Regulation 17, so, suspecting – rightly as it turned out – that the DTI had been put up to inserting Regulation 17 by the LCD, I made a Freedom of Information Act 2000 (‘FOIA’) request to the DTI on 12 February 2005 seeking disclosure of the information which lay behind the insertion of that Regulation. This met a blanket refusal against which I made a complaint to the Information Commissioner.

On the 9 June 2005 I made my request to the DCA for equal treatment in the form of a pro rata pension. This was refused on 6 July 2005. I took advice from Eleanor Sharpston QC who advised, having considered the Recorders’ Terms and Conditions of Service and the full correspondence between me and the LCD/DCA going back to my original appointment in 1978, that Recorders were entitled to the protection of the Directive, that Employment Tribunal proceedings should be successful – although a reference to the ECJ could well be required – and that there was a 3 month limitation period which ran from the refusal of my request for equal treatment.

My proceedings in the ET were commenced on 29 September 2005. The ET ruled that this was out of time but that in all the circumstances it should exercise the discretion on the basis that it was just and equitable that the claim (which also included a parallel claim under the Equal Pay Act which was accepted as having been made in time) should be allowed to proceed.

I have done a good deal of research and statistical analysis from which it clearly emerges that, consistently over the 27 years preceding my application, the practice of withholding pension rights from Recorders has had a disparate effect between the sexes which, I understand, should result in that practice being declared unlawful under the Equal Pay Act.

It was at this point I published my article in Counsel Magazine to which many of you responded.

Since then the various strands of the struggle have become complicated. The DCA appealed to the EAT against the exercise of the discretion on limitation by the ET. I cross appealed.

I should at this stage make clear that I have been scrupulous not to use any of the funds subscribed by supporters upon the contest over limitation which I have treated as my personal problem and one which is to be paid for by me.

In relation to the ET proceedings I have been represented throughout by solicitors and counsel. It relation to the FOIA proceedings I have been acting in person – not because I think that it is a good idea to act for one’s self but because I could not see that the costs of obtaining representation in this somewhat esoteric field would necessarily have been proportionate to the probable benefit. I simply had to learn the law and practice on the subject and do my best.

While the appeal to the EAT was pending a Mr Christie commenced proceedings in the ET. I have considerable misgivings about this litigation and the difficulties which confronted junior counsel instructed at short notice to deal with it. It failed before the ET. There was an appeal to the EAT. For technical reasons, some of the issues which would, apart from those reasons, have been relevant, could not be raised on the appeal and the appeal was unsuccessful. The Court of Appeal gave permission to appeal but Mr Christie was unable to face the risks as to costs and abandoned his appeal.

Meanwhile the Immigration Judges had obtained the advice of Peter Roth QC and the Employment Tribunal Chairmen obtained the opinion of Brian Napier QC. Both opinions gave the same advice as Eleanor Sharpston QC had earlier given to me on the entitlement of part-time judges to the benefits which the Directive required Member States to provide. If they are correct then Christie was wrongly decided and the ECJ will say so.

The EAT then heard the appeals in my case and, considering some only of the relevant circumstances, said the ET had exercised its discretion wrongly and should have ruled my claim under the Regulations/Directive to be statute barred. The cross appeal was dismissed at least in part on the basis of Christie.

The next thing to happen was that Robin Miller’s claim in the ET in Bristol (in which he is represented by Cherie Booth QC) resulted in that tribunal making an order on 15 July 2008 for a reference to the ECJ on the compatibility of Regulation 17 with the Directive. As a matter of domestic law the ET was bound by the decision in Christie to dismiss Robin’s claim but there is a rule of EU law that the national court cannot be prevented by a national rule requiring a precedent to be followed from making a reference which may have the effect of reversing that precedent. The government have appealed against the order for reference.

I now have permission to appeal to the Court of Appeal and it appears to be agreed that this is to be the vehicle in which the decision in Christie is to be tested in that court. The Court of Appeal may very well make a reference to the ECJ although Eleanor Sharpston did warn me that, for obvious reasons, it was to be expected that the government would use every means available to it to prevent the matter getting to the ECJ. I intend if possible to be represented by Robin Allen QC from whom I have already obtained supportive advice.

One item of good news is that after 3 ½ years of struggle and in spite of the DTI/BERR’s seemingly endless delays and prevarications, the Information Tribunal ruled unanimously on 7 October 2008 (after a two-day hearing) that the public interest in the revelation of the information behind the insertion of Regulation 17 overrode any objections that the government could advance and that the relevant documents must be revealed. The government’s objections could have been scripted for “Yes Minister” and spoken by Sir Humphrey. Whether the government will accept defeat and what the documents will reveal has yet to be seen but I do not suppose that it would have gone to the lengths it has if the contents of the documents were entirely innocuous.

The actual costs I have incurred have far exceeded the sums subscribed by supporters. However because I have carried the costs of the limitation issue myself, I still have left some of the fighting fund subscribed by supporters. It is however clear that this will not be sufficient to pay for the Court of Appeal hearing let alone a reference to the ECJ. Apart therefore from reporting progress, which a number of you have asked me to do, I am now appealing for further funds with which to carry on the fight. I do not wish the claim to fail for the same reason as Christie failed and I believe that my case is being prepared and presented in a way that makes it more likely that a satisfactory result can be achieved. However my personal resources are limited and I have to consider my position afresh at every stage.

My own time spent on these matters has of course been provided free but of course solicitors and counsel must be paid. All the money subscribed will be used for this purpose. I hope that you will all consider that my efforts have represented and will represent good value for your money. After all it remains the fact that if we succeed you will recoup your outlay by securing proper remuneration for a couple of days at a JSB seminar, quite apart from the entitlement to a government pension. This is particularly relevant in these troubled times. Most supporters contributed £200 each and a repeat of this (or more if you feel, as I do, that the government should be brought to book over this and not be permitted to continue with a discrimination that it denies to everyone else) would be most gratefully received. If you know of anyone else who might be persuaded to contribute please pass a copy of this article to them.

NB The Information Tribunal decision is on its website under reference EA/2008/0011.