“…reforms that can balance the legitimate concerns of taxpayers about the present and future cost of pension commitments in the public sector as well as the wider need to ensure decent levels of retirement income for millions of people who have devoted their working lives in the service of the public.”
“2.24 Salary risk and longevity risk before retirement are areas where increases in the cost of pension provision benefit members at an individual level, whether that is through higher pension income or pension income paid for a longer period. As such it is the Commission’s conclusion that it is reasonable for employers to share these risks with the members. 2.25 Conversely, increases in pension costs because of uncertain asset returns or high interest rates or inflation are generally areas where members individually have little control and do not benefit. Large employers, such as Government, have a better ability to bear these risks. For this reason, the Commission believes that these risks should not be passed to the member.”
“Ex.28 This measure [i.e. linking Normal Pension Age to State Pension Age – see Ex. 27] and the other design features proposed by the Commission should achieve much of the Commission’s aim regarding sharing risks and costs fairly between employees and the Government. However, an additional safety valve, a cost ceiling based on the proportion of their total pensionable pay bill, is needed in case costs within the new schemes increase due to factors not taken account of in the scheme design. This will ensure that public service pensions remain affordable and sustainable. Ex.29 What is included within this cost ceiling is a matter for the Government to determine in consultation with employees and their representatives. However, if the ceiling is exceeded measures will need to be taken to bring costs back down below it. There should be a default stabilising mechanism that could take the form of an increase in employee contributions or a decrease in accrual rates which would automatically reduce costs if negotiations between employers and scheme members were unsuccessful.”
“7.34 The Commission’s expectation is that existing members who are currently in their 50s should, by and large, experience fairly limited change to the benefit which they would otherwise have expected to accrue by the time they reach their current scheme NPA. This would particularly be the case if the final salary link is protected for past service, as the Commission recommends. This limitation of impact will also extend to people below age 50, proportionate to the length of time before they reach their NPA. Therefore special protections for members over a certain age should not be necessary. Age discrimination legislation also means that it is not possible in practice to provide protection from change for members who are already above a certain age.” (Emphasis added)
“The Government intends to take forward this recommendation by putting in place an employer cost cap in the new public service schemes. This will provide backstop protection to the taxpayer, to ensure that risks associated with pension provision are shared between employers and scheme members. The Public Service Pensions Bill provides the necessary legislative framework for this cap to operate. … The cost cap will control all of the cost risks associated with the new pensions schemes, and the risks associated with active members who have service in the existing, pre-reform schemes (including those with transitional protection). Changes in costs which arise from technical or financial changes will not affect the cost cap. Only those which directly relate to members – such as changing expectations about life expectancy, salary growth, or career paths – will be included in the cap mechanism.” b. The second policy document, entitled “Actuarial valuations of public service pension schemes” (the “Second November 2012 policy”), contained further detail about the CCM including as to the distinction between “member” costs and “employer” (previously “financial”) costs. It provided: “1.6 For the unfunded schemes, the initial level of the employer cost cap will be set with reference to the 2012 scheme valuations, with subsequent valuations being used to measure future costs against this cap. If valuations show that there have been unexpected changes in costs, action will be taken to mitigate these. This may be via an adjustment to the benefits accruing in respect of future service, an adjustment to member contributions, or via some other means. 1.7 Given the potential impact on members, it is crucial that the approach taken to scheme valuations is transparent and consistent between schemes. Directions will provide details that will allow for this – such as establishing the outputs of the valuation process and when the valuations are to be carried out.” … 1.9 The Bill specifies that the Treasury will consult the Government Actuary before making these directions to ensure that they meet actuarial standards. The Treasury will also involve other stakeholders, such as public service employers, scheme actuaries and trade unions, when considering the approach to valuations. This will ensure that directions reflect individual scheme circumstances and economic and demographic changes. … 1.16 Many of the assumptions that must be made to carry out a valuation relate to the profile of scheme members – for example the expectation about their life expectancy, growth in salaries, or career paths. These will be defined as “member costs”
“2.31 Many of the assumptions that must be made to carry out a valuation relate to the profile of scheme members – for example the expectations about their life expectancy, growth in salaries, or career paths. For the purpose of the operation of the cost cap, these will be defined as “member costs”
“2.36 The government will set the cap to take account of expected changes in future scheme costs. However, there may be future changes in scheme costs which the government may not wish to affect members via the cost cap mechanism, even though they are unexpected. For example, improvements in scheme data may lead to changes in the costs of the schemes as measured by the valuations. Similarly, there may be one-off shifts in the costs of the schemes. 2.37 There may also be some potential changes in scheme costs which cannot be easily quantified at the preliminary valuation. For example, increases in the State Pension age may lead to an increase in the average age of the public service workforces. All things being equal, this would lead to a rise in scheme costs. However, there is no way of accurately forecasting the potential impact of such changes at this stage. 2.38 Any decisions about whether such changes should feed through to the employer cost cap mechanism, and therefore to scheme members, will need to be taken on a case-by-case basis. If, at a future valuation, it can be demonstrated that the cost cap mechanism has been affected by such a change, the government will need to decide how this should be taken into account in that mechanism. In making such a decision, the government will need to balance the interests of scheme members against the need to protect the taxpayer and ensure that the costs to employers remain sustainable. If any adjustments are made, these may be via an adjustment to the level of the cap, to the valuation process, or by some other means. 2.39 In addition, some of the valuation assumptions which are specified in the Directions are likely to become out of date as new data becomes available ... These elements of the Directions will need to be updated to ensure that the most appropriate assumptions are used at future valuations, and to take account of any new evidence which may impact on the costs of the schemes as measured by the valuations. Similarly, as the programme of reform of public body pension schemes progresses it may also be necessary to amend the Directions to cover any specific circumstances relating to the valuations of those schemes. 2.40 For these reasons, the Treasury will keep the Directions under review after they have been made. This will ensure that they continue to reflect Treasury policy, and also ensure that they take into account any future developments that are relevant to public service pension scheme cost measurement and control, such as the release of new data or changes in assumptions. It is anticipated that such reviews will take place before each round of scheme valuations. 2.41 The government will discuss any potential changes of this nature with stakeholders, and consult the Government Actuary, before any final decisions are made.” (Emphasis added)
“[A]ny move to revisit the cost cap design now – when initial results show members are due significant improvements to the generosity of their pensions under the framework – would be controversial and could present industrial relations and Parliamentary risks, together with a likelihood of legal challenge. Equally, any attempt to postpone the process, which could arguably be justified by uncertainty arising from pre-existing legal cases, could present similar risks. ... Having considered the issues in the round, I am reluctantly of the view that we should let the mechanism run in its current form and implement these valuation results from April 2019, whilst in parallel exploring options for long term reform.”
“…[y]ou have previously given a steer that the costs of complying with the Court ruling should be borne by employees rather than taxpayers, ie through less generous pension arrangements in the future. There are a number of ways in which this could be achieved, ranging from just reinstating a slightly amended form of the 2015 schemes through to more fundamental changes. We will set out the options in detail in further advice. It is likely to be possible to implement your objective under the existing legislative framework without the need for further primary legislation.”
“When the mechanism was established, it was agreed that it would consider ‘member costs’, i.e. costs that affect the value of schemes to members. As the proposals in the consultation today will increase the value of schemes to members, this falls into the ‘member cost category.”
“The proposed re-stated cost-cap mechanism simply adds the new remedy costs to the previous provisional cost cap results. This means there are some technical inconsistencies between how these figures are calculated. For example, as previously mentioned, using a 4-year spreading period is a different approach to the spreading period for the previous provisional valuation results. This is however justified as previously explained. This could be argued to undermine the narrative that McCloud remedy is something that should be captured anyway, rather than needing to be imposed on top. We are able to justify this, though, as the McCloud judgment was unforeseen, and the design could have never considered it. By its nature though, it falls into the category of “member cost” and it is reasonable to therefore take it into consideration in this way.”
“We have stressed that this cost is a direct result of the unlawful age discrimination imposed by the government and was not the fault of the scheme members. It is essential therefore that the costs of this remedy are borne directly by government and that employee contribution rates, accrual rates and overall pension benefits are not adversely impacted by your proposed remedy.”
“For example, the NHS workforce is predominantly female (77%) whereas the Consultant demographic is older, whiter and male. The BAME community make up almost 21% of the NHS workforce. In the Civil Service women are just over 50% of the workforce and just 12.7% of the Civil Service workforce are from BAME communities. Given the distinct make up of just these two areas of public service the government should set out detailed sector specific approaches to addressing the equalities impact of its choice proposal.”
“° the Government is required to provide McCloud Remedy ° it is necessary to ensure the subsequent uplift in the value of members’ benefits is subject to cost control to protect taxpayers; and ° all cost-sharing mechanisms will entail the possibility that members’ benefits may be affected by costs associated with other cohorts.”
“In deciding how to allow for Remedy in the cost control element of the 2016 valuations, the Government has the following policy intentions: a. to reflect the entire impact of Remedy on the cost cap cost of a scheme at this set of valuations, because the Remedy period ends by the end of the implementation period for this set of valuations. b. that Remedy should be subject to cost control through the operation of the CCM. The required changes to the cost control element of the 2016 valuation process should not unduly reduce intergenerational fairness. c. to revisit assumptions made in completing the employer contribution rate element of the 2016 valuations only to the extent required to properly reflect the Remedy, with no changes being made to the calculation of other elements of the cost of a scheme as assessed for cost control purposes. d. to aim for a “best estimate” calculation of Remedy costs, in line with the ‘no bias’ objective referred to in paragraph [10(b)] of this letter.”
“Regulations may establish schemes for the payment of pensions and other benefits to or in respect of persons specified in subsection (2)”
“The valuation report must state, to the nearest 0.1% of pensionable payroll— (a) the difference between the employer cost cap and the cost cap cost of the scheme; and (b) an analysis of the difference between the employer cost cap and the cost cap cost of the scheme, identifying and quantifying any noticeable differences caused by— i. a change in the average age of members; ii. a change in the average normal pension age of members (whether resulting from a change in state pension age or otherwise); iii. a change in the expected member contribution yield; and iv. scheme experience or a change in assumptions relating to— aa. new entrant profiles ab. mortality rates; ac. rates of age retirement; ad. rates of early and late retirements; ae. rates and severity of ill health retirements; af. resignations and opt outs; ag. rates of rejoining service; ah. general earnings growth until31st March 2019 ; ai. promotional earnings increases; aj. members dependants; ak. take up of commutation options; and al. any other relevant reason.” i. a change in the average age of members; ii. a change in the average normal pension age of members (whether resulting from a change in state pension age or otherwise); iii. a change in the expected member contribution yield; and iv. scheme experience or a change in assumptions relating to— aa. new entrant profiles ab. mortality rates; ac. rates of age retirement; ad. rates of early and late retirements; ae. rates and severity of ill health retirements; af. resignations and opt outs; ag. rates of rejoining service; ah. general earnings growth until31st March 2019 ; ai. promotional earnings increases; aj. members dependants; ak. take up of commutation options; and al. any other relevant reason.”
“The valuation report for the preliminary valuation produced in accordance with direction 50(g) must state to the nearest 0.1% of pensionable payroll, the proposed employer cost cap, being— A-B where— A is the contribution rate required to cover the expected cost of benefits accrued by members of the relevant old scheme during the implementation period; and B is the contribution yield expected from normal member contributions to the relevant old scheme during the implementation period.”
“For the purpose of calculating A in paragraph (1), the expected cost of benefits accrued by members of the relevant old scheme during the implementation period should be determined as if no members of the relevant old scheme have any entitlement to exceptions made under section 18(5) to (7) of the 2013 Act.”
“1.19 The cost cap will control all other member cost risks, including the past and future cost risks associated with: • Active members of the reformed schemes, including any service they have in the existing schemes • Deferred and pensioner members of the reformed schemes; and • Transitionally protected active members of the existing schemes.” (Emphasis added)
“21 Consultation (1) Before making scheme regulations the responsible authority must consult such persons (or representatives of such persons) as appear to the authority likely to be affected by them. … 22 Procedure for protected elements (1) This section applies where, after the coming into force of scheme regulations establishing a scheme under section 1, the responsible authority proposes to make further scheme regulations containing provision changing the protected elements of the scheme within the protected period. (2) The responsible authority must— (a) consult the persons specified in subsection (3) with a view to reaching agreement with them, and (b) lay a report before the appropriate legislature. (3) The persons referred to in subsection (2)(a) are the persons (or representatives of the persons) who appear to the responsible authority to be likely to be affected by the regulations if they were made. (4) The report under subsection (2)(b) must set out why the responsible authority proposes to make the regulations, having regard to the desirability of not making a change to the protected elements of a scheme under section 1 within the protected period. (5) In this section— “the appropriate legislature” means— (a) Parliament, where the responsible authority is the Secretary of State, the Minister for the Civil Service or the Lord Chancellor; (b) the Scottish Parliament, where the responsible authority is the Scottish Ministers; (c) the National Assembly for Wales, where the responsible authority is the Welsh Ministers; “protected period” means the period beginning with the coming into force of this section and ending with31 March 2040 ; “protected elements” , in relation to a scheme under section 1, means— (a) the extent to which the scheme is a career average revalued earnings scheme; (b) members' contribution rates under the scheme; (c) benefit accrual rates under the scheme. (6) In this section, references to a change to the protected elements do not include a change appearing to the responsible authority to be required by or consequential upon section 12 (employer cost cap). (7) In a case where this section applies, there is no requirement to consult under section 21(1).” (Emphasis added)
“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.” (Emphasis added)
“Ex.12 But the taxpayer should also have confidence that public service pension costs are under control and are sustainable. That requires mechanisms in the scheme design to share cost and risk fairly and a fixed cost ceiling to assure cost control.”
“4.26 However, the Commission believes consideration should also be given to an overriding mechanism to ensure that public service pensions remain affordable and sustainable. This mechanism would act as a safety valve in case costs within the new scheme increased due to factors not taken account of in the scheme design. 4.27 This mechanism could be expressed as a 'fixed cost ceiling' and would be the upper limit on the amount that the Government would commit to employees' pensions over the long term to each scheme.”
“I go back to first principles. The present appeal raises a point of statutory interpretation: what is the ambit of the power conferred on the minister bysection 31(1) of the Landlord and Tenant Act 1985 ? No statutory power is of unlimited scope. The discretion given by Parliament is never absolute or unfettered. Powers are conferred by Parliament for a purpose, and they may be lawfully exercised only in furtherance of that purpose: "the policy and objects of the Act", in the oft-quoted words of Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food[1968] AC 997 , 1030. The purpose for which a power is conferred, and hence its ambit, may be stated expressly in the statute. Or it may be implicit. Then the purpose has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event, whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation. Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613: "We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used." In identifying the meaning of the words used, the courts employ accepted principles of interpretation as useful guides. For instance, an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute. Another, recently enacted, principle is that so far as possible legislation must be read in a way which is compatible with human rights and fundamental freedoms: seesection 3 of the Human Rights Act 1998 . The principles of interpretation include also certain presumptions. To take a familiar instance, the courts presume that a mental ingredient is an essential element in every statutory offence unless Parliament has indicated a contrary intention expressly or by necessary implication. Additionally, the courts employ other recognised aids. They may be internal aids. Other provisions in the same statute may shed light on the meaning of the words under consideration. Or the aids may be external to the statute, such as its background setting and its legislative history. This extraneous material includes reports of Royal Commissions and advisory committees, reports of the Law Commission (with or without a draft Bill attached), and a statute's legislative antecedents. Use of non-statutory materials as an aid to interpretation is not a new development. As long ago as 1584 the Barons of the Exchequer enunciated the so-called mischief rule. In interpreting statutes courts should take into account, among other matters, "the mischief and defect for which the common law did not provide": Heydon's Case (1584) 3 Co Rep 7a , 7b. Nowadays the courts look at external aids for more than merely identifying the mischief the statute is intended to cure. In adopting a purposive approach to the interpretation of statutory language, courts seek to identify and give effect to the purpose of the legislation. To the extent that extraneous material assists in identifying the purpose of the legislation, it is a useful tool. This is subject to an important caveat. External aids differ significantly from internal aids. Unlike internal aids, external aids are not found within the statute in which Parliament has expressed its intention in the words in question. This difference is of constitutional importance. Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament. This gives rise to a tension between the need for legal certainty, which is one of the fundamental elements of the rule of law, and the need to give effect to the intention of Parliament, from whatever source that (objectively assessed) intention can be gleaned. Lord Diplock drew attention to the importance of this aspect of the rule of law in Fothergill v Monarch Airlines Ltd[1981] AC 251 , 279-280: "The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation." This constitutional consideration does not mean that when deciding whether statutory language is clear and unambiguous and not productive of absurdity, the courts are confined to looking solely at the language in question in its context within the statute. That would impose on the courts much too restrictive an approach. No legislation is enacted in a vacuum. Regard may also be had to extraneous material, such as the setting in which the legislation was enacted. This is a matter of everyday occurrence. That said, courts should nevertheless approach the use of external aids with circumspection. Judges frequently turn to external aids for confirmation of views reached without their assistance. That is unobjectionable. But the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity. Sometimes external aids may properly operate in this way. In other cases, the requirements of legal certainty might be undermined to an unacceptable extent if the court were to adopt, as the intention to be imputed to Parliament in using the words in question, the meaning suggested by an external aid. Thus, when interpreting statutory language courts have to strike a balance between conflicting considerations.” (Emphasis added)
“32. As explained at paras 166 and 174—176 below, the relevant intention, when one is considering the intention of primary legislation, is that of Parliament, not that of the Government. Parliament’s intention is ascertained primarily from the language which it has used. It is also legitimate to look at other materials in order to identify the problem or “mischief” which Parliament was seeking to remedy…”
“62. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment. 63. In this case, it was argued for the respondent that it was incumbent on Mrs Finucane to show that she had suffered a detriment. That argument simply does not avail in this instance, since the question of detriment can only arise, if it arises at all, in the context of a substantive legitimate expectation. Here the promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane but to the world at large. 64. The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it - see, for instance, In re Loreto Grammar School's Application for Judicial Review [2012] NICA 1; [2013] NI 41 , para 42 et seq . In Paponette v Attorney General of Trinidad and Tobago[2012] 1 AC 1 , para 37, Lord Dyson said: "The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too.”” (Emphasis added)
"… where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. … On the other hand where the government decision-maker is concerned to raise wide-ranging or 'macro-political' issues of policy, the expectation's enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact." (Emphasis added)
“46. These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation or undertaking made generally or to a diverse class. As Lord Woolf MR said in Ex p Coughlan (paragraph 71): “May it be … that, when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ or, indeed, may be in conflict?”
“In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear … In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players … The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes.”” (Emphasis added)
“As Laws LJ recognised in both Begbie and in Bhatt Murphy in the passages I cited earlier (paras 141 - 142 above), whilst in theory there may be no limit to the number of beneficiaries of a promise, in reality the larger the class, the less likely it is that the statement/s made will generate a legally enforceable representation. Here the size of the class is very large, and the subject matter concerns the macro-economic and political field. Mr Sharland relied on the decision of Cox J in R (HSMP Forum (UK) Limited) v Secretary of State for the Home Department[2009] EWHC 711 (Admin) , that it would be unlawful for the Home Secretary to resile from a substantive legitimate expectation that the terms on which people had joined the Highly Skilled Migrant Programme, would be the terms on which they qualified for settlement. The Judge observed that the issue affected a specific well-defined group of people and did not lie within the macro-political field. She noted that in Begbie (at 1131D) the group of between 1,200 – 1,500 affected children was said to constitute a “relatively small, certainly identifiable, number of persons”; and commented that the number of skilled migrants affected in the present case was “considerably smaller and is clearly identifiable” (para 71). As such, I do not consider this authority assists the Claimant. Cox J applied the approach identified in Begbie, as I have done. In addition to the Judge’s characterisation of the subject-matter, the size of the class was much smaller. As Ms Callaghan pointed out, even if the cohort is limited to officers in the legacy schemes who were potentially affected by the representations to police (rather than members of the other public sector legacy scheme as well), the correct number is around 30,000, rather than the Claimant’s 7,750 officers, because the position for these purposes, should be considered at the time when the representations were made. 185. For these reasons I conclude that the representations to police did not give rise to an enforceable legitimate expectation. However, if I am wrong about this, both the numbers involved, and the subject matter are highly relevant to the question of whether the Defendant can lawfully resile from the representations.” (Emphasis added)
“11. The content of the policy papers and records of negotiations is set out in the Chronology ... Particular reliance is placed upon the following: a. a division between “member costs” and “employer costs”, with “only” the former to be included in the costs to be taken into account for the purpose of measuring changes in the valuation of the scheme subject to the cap; … b. “member costs” covering matters which arose from the “profile” of members of the scheme such as life expectancy, career, salary, age and gender; … c. the exclusion of “transitional costs” from those to be taken into account for that purpose…” a. a division between “member costs” and “employer costs”, with “only” the former to be included in the costs to be taken into account for the purpose of measuring changes in the valuation of the scheme subject to the cap; … b. “member costs” covering matters which arose from the “profile” of members of the scheme such as life expectancy, career, salary, age and gender; … c. the exclusion of “transitional costs” from those to be taken into account for that purpose…”
“…cost cap will control all other member cost risks, including the past and future cost risks associated with … Transitionally protected active members of the existing [i.e. legacy] schemes.”
“… decisions and assumptions that must be made to carry out a valuation [that] are financial or technical in nature – for example the discount rate that is used to assess the present costs of future benefits, or the actuarial methodology to be used… will be defined as “employer costs”.”
“…the government will need to balance the interests of scheme members against the need to protect the taxpayer and ensure that the costs to employers remain sustainable. If any adjustments are made, these may be via an adjustment to the level of the cap, to the valuation process, or by some other means.”
“170. Also to be noted is paragraph 2.25, which set out that costs in relation to past service would be controlled by the cap for active members of the reformed schemes, including for the service in the legacy schemes (which members without full transitional protection would have); for deferred and pensioner members of the reformed schemes; and for protected members of the existing schemes. The point is that, whilst the McCloud Remedy as such was obviously not foreseen at that stage, it was always envisaged that changes in past service costs could be within the scope of the CCM. 171. It is evident that the increase in costs resulting from the McCloud Remedy was a matter of a completely different nature to the potential changes in wider economic assumptions, or to technical actuarial methodology, which were mentioned in paragraph 2.33 of the March 2014 Valuation Paper. It is also right to say that it was not one of the matters specifically mentioned as a member cost in paragraph 2.31. However, those matters were not expressed to be an exhaustive list. 172. In my view, having discussed this matter with colleagues, including some of those who were directly involved at the time, the April 2020 ministerial submission was justified in taking the approach that it did. If one has to choose between the two categories envisaged by the March 2014 Valuation Paper, then in the context of that paper McCloud Remedy costs were in the nature of member costs rather than employer costs. The costs described as employer costs are indeed “financial or technical” in nature. The price and earnings assumptions are financial assumptions applied to generate the projected future cashflows in and out of the scheme, whilst the discount rate and the actuarial methodology are actuarial assumptions which are used to capitalise those projected cashflows. Discount rate and actuarial methodology changes do not change the cash cost of paying benefits net of income from member contributions. By contrast, the McCloud Remedy costs do affect the cash cost. They relate to the benefit design features of the scheme, and represent a real change, one that is beyond uprating in line with inflation, to the amounts of the benefits actually provided to members. 173. As the April 2020 submission also pointed out, the March 2014 Valuation Paper expressly contemplated (at paragraph 2.38) the need for case-by-case decision-making about certain changes, and whether they should “feed through” into the CCM and thus to scheme members. The sort of changes to which this approach was expected to apply were changes which were foreseeable but incapable of being accurately quantified at the preliminary valuation (paragraph 2.37), and changes which were unexpected (paragraph 2.36), including “one-off shifts in the cost of the schemes”
“57. The Court reaffirms that while in principle the legislature is not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature - other than on compelling grounds of the general interest - with the administration of justice designed to influence the judicial determination of a dispute.”
“89. In my judgment, the Zielinski principle is not confined to cases where a court claim is undisputed or indisputable. The ECtHR in that case referred to an offending measure being “designed to influence the judicial determination of a dispute” without such a qualification. The Court of Appeal in Reilly[2017] QB 657 commented on those words at para 44: “it is important to appreciate that the core principle on which the Court’s reasoning is based is that it is - at least prima facie - contrary to the rule of law for the state to interfere in current legal proceedings in order to influence the outcome in a manner favourable to itself. That seems to us self-evidently correct.” 90 If the legal proceedings in question were clearly without merit then it might also be questionable whether the supervening legislation was, in fact, designed to influence their outcome. In the present case, however, the Chancery claim was based on a clearly identifiable statutory cause of action and there was, at least, a serious prospect of it succeeding. The effect of the 2020 Regulations was to make that “outcome” impossible.” (Emphasis added)
“64. Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Decisions on social and economic policy are par excellence the stuff of government. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished…”
“25. A second salient feature is the contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. …”
“186. In my judgment the answer to the claimant's age claim is that, in reality, what she is complaining about is a difference in treatment arising from different rules applying to different schemes at different times; however, that is not an age-based reason for the different treatment complained of. In Ackermann v Germany(2005) 42 EHRR SE1 the European Court said: “In so far as the applicants further complained about discrimination on ground of age, alleging that earlier generations of pensioners received considerably higher pensions than they themselves would on reaching pension age, the court notes that the applicants have not established that their own situation is comparable to that of earlier pensioners. In this respect, it has to be taken into account that the state must be in a position to adapt the pension system to the change of socio-economic circumstances. Accordingly, the applicant cannot claim equal treatment ‘in time’.” 187. In R (Gurung) v Secretary of State for Defence[2008] EWHC 1496 (Admin) the claimants were Gurkhas challenging army pension arrangements. Gurkha pensions from1 July 1997 were paid at a rate equivalent to that of other army soldiers; Gurkha pensions under the Gurkha Pension Scheme established in 1949 were paid at a much less favourable rate. The claimants asserted that this amounted to indirect age discrimination, on the basis that (a) Gurkhas with more years of service were disadvantaged; and (b) those Gurkhas would on the whole be older. Ouseley J was not convinced that such an argument gave the claimants any “other status” for the purposes of article 14 at all; but, if it did, he considered that the matter was correctly approached on the basis that the Secretary of State had a wide margin of discretion; that the selected date of1 July 1997 was not irrational; and that the challenge failed accordingly. 188. He also observed, at para 74, that this type of differentiation between one group and another, based upon a particular cut-off date, was inevitable whenever there was a transition from one welfare scheme to another; and this could not form a strong basis for challenging a decision on social and economic policy: “There may be differences of view about whether ‘age’ is or can be a suspect ground for discrimination, requiring a more intense scrutiny, or whether ‘old age’, which is not quite the same, can be. But the grounds of differentiation here, not wholly aptly characterised as those of age, are not suspect grounds. The grounds of difference do not arise because someone is above or below a particular age, but because the introduction of changes which are not directly age-related are defined by dates, and years of service. The drawing of lines, by reference to dates, around schemes which help some and not others is an inevitable part of many legislative or policy changes; this is the more so where a past disadvantage or even wrong is being remedied retrospectively. Of course, this means that either the older or the younger will be affected; the date itself will import an indirect differentiation on age grounds. But that is a weak starting point for an assertion of indirect discrimination on age grounds. In any event, if there is a rational basis for the selection of the date as at which the changes are made, that disposes of the article 14 challenge.” 189. This, it seems to me, is largely dispositive of the claimant's case on age. As the defendants rightly point out, by their nature pensions are linked to age. The application of an indirect age discrimination claim to a pension scheme context can be problematic because the membership and benefits of all pension schemes are determined by rules based directly on, or otherwise related to, age. They are right to submit that pension schemes are necessarily linked to age and age-related concepts, such as length of service. If the claimant were correct then it seems to me that to introduce a new pension scheme with improved benefits would nearly always be liable to give rise to age-based claims, because it will generally be the case that older people are more likely to be members of the older and less advantageous pension scheme. But it is clear that pension schemes cannot stay static and have to be updated from time to time to reflect macro-economic and societal and demographic changes, among other reasons. That suggests that she cannot be correct. But that is not to say that pensions can never give rise to age-based claims: see eg Lord Chancellor and Secretary of State for Justice v McCloud[2018] ICR 1039 , where age discrimination was conceded in relation to the New Judicial Pension Scheme, but the Lord Chancellor argued it was objectively justifiable. There, however, the rules expressly defined benefits by reference to age, with older judges being eligible for more generous benefits than younger judges. It was not a case where a new pension scheme had been introduced with effect from a certain date.” (Emphasis added)
“83. It follows that the essential question is whether the employer's aim in acting in the way that gives rise to the discriminatory impact can fairly be described as no more than a wish to save costs. If so, the defence of justification cannot succeed. But, if not, it will be necessary to arrive at a fair characterisation of the employer's aim taken as a whole and decide whether that aim is legitimate. The distinction involved may sometimes be subtle (to adopt the Supreme Court's language in O’Brien ) but it is real… … 88. The upshot of all this is that there is certainly an established principle that, to take Rimer LJ's formulation in Woodcock[2012] ICR 1126 , para 66, “the saving or avoidance of costs will not, without more, amount to the achieving of a legitimate aim” for the purpose of the defence of justification in a discrimination claim; but that that principle needs to be understood in the way that I have sought to explain it in the preceding paragraphs. It only bites where the aim is, as the CJEU put it in Hill v Revenue Comrs[1999] ICR 48 , “solely” to avoid costs.” (Emphasis added)
“176. … The outcome of the McCloud litigation had huge implications, organisationally and financially. The discrimination identified had to be remedied. … Any solution would have had very significant costs indeed. The whole nature of a choice-based remedy is that many scheme members will receive better pension benefits than would otherwise have been the case, and those are benefits which have to be paid for. To let that huge cost fall upon employer contributions, and thus ultimately in very large measure upon the taxpayer, would (in the view which HMT took at the time and continues to take now) significantly undermine the purpose for which the CCM was introduced. 177. I appreciate, of course, that there will be some individuals who do not personally benefit from the McCloud Remedy, and who might have benefited in some way from the rectification of the floor breaches which would have resulted if the McCloud Remedy costs had been excluded from the 2016 valuations. However, almost any change in the design of pension scheme benefits will tend to benefit some individuals more than others. But it is in the nature of the CCM that it operates on a collective basis, so that changes in the collective cost of providing member benefits may have an impact upon future benefit and contribution structures for everyone, regardless of the relevance of that changed cost to themselves.”
“1. There is no general duty to consult at Common Law. The government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision. R (Harrow Community Support Limited) v. The Secretary of State for Defence[2012] EWHC 1921 (Admin) at paragraph [29], per Haddon-Cave J). 2. There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult (R (Cheshire East Borough Council) v. Secretary of State for Environment, Food and Rural Affairs[2011] EWHC 1975 (Admin) at paragraphs [68–82], especially at [72]). 3. The Common Law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation (procedural expectation), or as to the continuance of a policy to consult (substantive expectation) (R (Bhatt Murphy) v Independent Assessor[2008] EWCA Civ 755 , at paragraphs [41] and [48], per Laws LJ). … 6. The courts should not add a burden of consultation which the democratically elected body decided not to impose (R (London Borough of Hillingdon) v. The Lord Chancellor[2008] EWHC 2683 (QB) ). 7. The Common Law will, however, supply the omissions of the legislature by importing Common Law principles of fairness, good faith and consultation where it is necessary to do, e.g. in sparse Victoria statutes (Board of Education v Rice[1911] AC 179 , at page 182, per Lord Loreburn LC) (see further above)…” 9. The doctrine of legitimate expectation does not embrace expectations arising (merely) from the scale or context of particular decisions, since otherwise the duty of consultation would be entirely open-ended and no public authority could tell with any confidence in which circumstances a duty of consultation was to be cast upon them (Westminster City Council v Greater London Council[1986] 2 All ER 278 at 288,[1986] AC 668 at 692 per Lord Bridge)…” (Emphasis added)
“23. A public authority's duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, Ex p Baker[1995] 1 All ER 73 . But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted. 24. Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board[2014] AC 1115 , this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed JSC in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested”: para 67. Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel”: para 68. Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not: “Yes or no, should we close this particular care home, this particular school etc?”
“Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our borough, should we make one in the terms which we here propose?” 25. In R v Brent London Borough Council, Ex p Gunning(1985) 84 LGR 168 Hodgson J quashed Brent's decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said, at p 189: “Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”
“In this statutory context fairness does not require the council in the consultation process to mention other options which it has decided not to incorporate into its published draft scheme; much less does fairness require that the consultation document contain an explanation as to why those options were not incorporated in the draft scheme.”
“consulting about a proposal does inevitably involve inviting and considering views about possible alternatives.”
“34. I am generally in agreement with Lord Wilson JSC, but would prefer to express my analysis of the relevant law in a way which lays less emphasis upon the common law duty to act fairly, and more upon the statutory context and purpose of the particular duty of consultation with which we are concerned. 35. The common law imposes a general duty of procedural fairness upon public authorities exercising a wide range of functions which affect the interests of individuals, but the content of that duty varies almost infinitely depending upon the circumstances. There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWCA Civ 1139 ; [2008] ACD 20 , paras 43–47. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation. The general approach of the common law is illustrated by the cases of R v Devon County Council, Ex p Baker[1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p Coughlan[2001] QB 213 , cited by Lord Wilson JSC, with which the BAPIO case might be contrasted.” (Emphasis added)
“51. The courts have developed the principle of legitimate expectation as part of administrative law to protect persons from gross unfairness or abuse of power by a public authority. The constitutional principle of the rule of law underpins the protection of legitimate expectations as it prohibits the arbitrary use of power by public authorities. Such expectations can arise where a decision-maker has led someone to believe that he will be consulted or be given a hearing before a decision is taken which affects him to his disadvantage (a “procedural legitimate expectation”) or that he will retain a benefit or advantage (a “substantive right legitimate expectation”). The source of the expectation may be either an express promise given on behalf of the public authority or an established practice which the claimant can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 , 401 per Lord Fraser. The expectation of a continuance of a substantive right is not absolute, even in the strongest cases such as Ex p Coughlan (above), because a sufficient public interest can still override a legitimate expectation to which a representation had given rise. In this appeal counsel founds his argument on what Laws LJ in Niazi (above) has described as a “secondary case of procedural expectation”, which arises where the public authority has given no assurance of consultation or as to the continuance of a policy but its past conduct has been “pressing and focussed” on potentially affected persons and there is at least “an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to ensure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult.” (Laws LJ in Niazi at para 49) Laws LJ in formulating this expectation was considering unusual circumstances where, absent a representation that the policy would continue, an abrupt change of policy was held to be so unfair as to amount to an abuse of power. A classic example is R v Inland Revenue Commissioners, Ex p Unilever plc[1996] STC 681 . In that case the Inland Revenue Commissioners on thirty occasions over twenty years had exercised their lawful discretion to entertain late claims for loss relief against corporation tax and then suddenly, without notice or consultation and for no good reason, refused such claims as out of time. The Board does not need to address questions of taxonomy by deciding whether this is a separate head of legitimate expectation or whether it is a particular example of what Lord Fraser described as an established practice which the claimant could reasonably expect to continue. It is enough to observe that there are cases in which fairness requires that a change in policy cannot be made abruptly because it would defeat the legitimate expectations of an individual or group. In such cases, as Sedley LJ stated in Niazi at para 70, it is not the alteration of the policy but the way in which it is done which is capable of frustrating a legitimate substantive right expectation.” (Emphasis added)
“1.9 The Bill specifies that the Treasury will consult the Government Actuary before making these directions to ensure that they meet actuarial standards. The Treasury will also involve other stakeholders, such as public service employers, scheme actuaries and trades unions, when considering the approach to valuations. This will ensure that directions reflect individual scheme circumstances and economic and demographic changes.” (Emphasis added)
“When the mechanism was established, it was agreed that it would consider ‘member costs’: i.e. costs that affect the value of schemes to members. As the proposals in the consultation published today will increase the value of schemes to members, this falls into the ‘member cost’ category. As a ‘member cost’, this will be considered as part of the completion of the cost control element of the 2016 valuations process. Current employer contribution rates will not be affected. The government has published an ‘Update on the Cost Control Element of the 2016 Valuations’ today, providing additional details.” (Emphasis added)
“ 144. … Typically unions were represented by officials dealing with pensions matters. The intention of the meetings was to give us the opportunity to explain the proposals, and to give the unions the opportunity to ask questions. Typically I chaired the meetings, and other colleagues presented different aspects of the approach being taken, which included the relationship with the CCM. We ensured that we explained our approach to the CCM and gave the opportunity for attendees to raise questions as we were aware this was a key concern of unions. The desire to exclude the McCloud Remedy costs from the CCM was raised at various meetings alongside questions on the finer detail of how it would be taken into account as demonstrated in the minutes of the meetings. Indeed, it was one of the more prominent issues, not least because the ostensibly fundamental question, in terms of how the remedy should work, of immediate choice versus deferred choice underpin, was an issue on which unions had a clear preference for deferred choice underpin and was the approach which HMT ultimately also favoured. 145. Although not formally the subject of the consultation, if any points had been made to us in these meetings, or through consultation responses, or through feedback from SAB engagement, which caused us to think that there might be a need to reconsider the April 2020 “in principle” decision about the treatment of the costs for CCM purposes, we would have done so, and presented submissions accordingly. But the fact is that it was known (and obvious) at the time of that decision that member interests would prefer the exclusion of the costs, and nothing really new emerged on the issue. We simply did not accept the argument, which I remember being made, that we were “making people pay for discrimination by the Government”
“The High Court – (a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”
“(1) A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act ; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to - (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; …” (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act ; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; …”
"(1) …equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements… (3) The relevant duty is upon the Minister or other decision-maker personally…. (4) A [decision-maker] must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23 – 24] . (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: (a) The public authority decision-maker must be aware of the duty to have "due regard" to the relevant matters; (b) The duty must be fulfilled before and at the time when a particular policy is being considered; (c) The duty must be "exercised in substance, with rigour, and with an open mind"
“5. Clearly there are equalities impacts to consider in any change to pensions, including the differential impact faced by younger cohorts, who are likely to experience reduced pension benefits as result of changes. Further detailed work is required for each option to determine fiscal impact and quantify legal/ operational risks - ahead of advising Ministers we would welcome views from the Board on whether we should explore more ambitious options, or rule any options out now…”
“207. The PSED does not require a detailed analysis of the sort that might be undertaken by leading counsel in the course of submissions in legal proceedings (see Williams, paragraph 16). In R (SG) v Secretary of State for the Home Department[2016] EWHC 2639 (Admin) , at paragraph 329, Flaux J said that: "… what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court …. the PSED, despite its importance, is concerned with process not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse."” "… what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court …. the PSED, despite its importance, is concerned with process not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse."”
“83. It seems to us that this statement demonstrated a consideration of the potential for adverse impacts on protected groups. The requirement to pay due regard to equality impact under section 149 is just that. It does not require a precise mathematical exercise to be carried out in relation to particular affected groups or, for example urban areas as opposed to rural areas. The assessment undoubtedly acknowledged the effect of the proposals upon protected groups but sought to place that in context by reference to other policies impacting on affordable housing.” (Emphasis added)
“This document records the analysis undertaken by the Department to enable Ministers to fulfil the requirements placed on them by the Public Sector Equality Duty (PSED) as set out insection 149 of the Equality Act 2010 . The PSED requires the Minister to pay due regard to the need to: • eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act; • advance equality of opportunity between people who share a protected characteristic and those who do not; and • foster good relations between people who share a protected characteristic and those who do not.” (Emphasis added)
“The design of the cost control mechanism delivers some “intergenerational transfer”; costs associated with an earlier cohort (who are, on average, older) affect the level of benefits available to later cohorts (who are younger on average, although will include some older members).”
“…While this remedy status does not map directly on to protected characteristics such as age, sex, or other protected characteristics, different protected characteristics are more or less prevalent amongst different remedy status groups. • Members who are not eligible for remedy will have lower benefits by completing the 2016 cost control valuations with ‘remedy included.’ This group is likely to include the youngest members and the group’s members are also more likely to be female and/or to have other protected characteristics, including to be from ethnic minority groups and to have a disability (see below), than the overall group of members affected by the 2016 valuations. • Members that are eligible for remedy will have either unchanged benefits (if they choose legacy benefits and would have done so even if remedy had not been included) or reduced benefits (if they choose reformed benefits, or if inclusion of remedy means they choose legacy benefits when they would have otherwise chosen reformed benefits) by completing the 2016 cost control valuations with ‘remedy included.’ Remedy choices will vary by age, sex and other protected characteristics, and also which workforce a member is in. • In some workforces, members with transitional protection may be more likely to choose reformed scheme benefits and thus have reduced benefits with ‘remedy included’. Transitionally protected members are older members. This group may also have a lower proportion of members with other protected chacracteristics (sic). Remedy status is not a protected characteristic and so any differential impact by remedy status does not have an equalities impact. However, there may be a differential impact by protected characteristics due to the relative prevalence in remedy status groups, as described above. Where this is the case, the Government believes this is fair and proportionate given that: • the Government is required to provide McCloud remedy, • it is necessary to ensure the subsequent uplift in the value of members’ benefits is subject to cost control to protect taxpayers, and • all cost-sharing mechanisms will entail the possibility that members’ benefits may be affected by costs associated with other cohorts.”
“There may be differential impacts which are indirectly related to age, due to • Intergenerational impacts due to the inherent design of the cost control mechanism, and • Differential impacts by remedy status and remedy choice (see above).”
“70. The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice[2015] 3 All ER 261 , paras 99–100. In that passage, having referred to the speech of Lord Diplock in Tameside , Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject to a Wednesbury challenge (Associated Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223 ), it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken: see R (Khatun) v Newham London Borough Council[2005] QB 37 , para 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.” (Emphasis added)