Judges are inscrutable. Like wise old owls you can never be sure what they are thinking. This week’s two day hearing of the Court of Appeal into the rejected judicial review on behalf of 3.8 million women born in the 1950s who saw their pension age rise from 60 to 66 was no exception.
However the proceedings were extraordinary for a number of reasons. For a start the introduction of new technology clashed with the traditional proceedings of the courts.
Hit by Covid 19, the Court of Appeal decided that ” public interest ” in the case was so great that it should be live streamed with some of the judges and lawyers contributing via video link. They were justified with audiences over 2000 peaking at one point to just below 4000 – Court No 71 could never hold anything near that number ever, Covid 19 or not. Now two days later it has been seen by over 16,000 people.
For the first day it worked. But during the second day it ran into a number of technical problems -including cutting people off. And at the very end of the day the technology fizzled out for me so I didn’t see the very last part of the hearing . I have now seen it and Michael Mansfield makes a strong defence of why 50s women have been so badly affected by the delay in the pension age, citing one case where a woman contemplated suicide. He also emphasised the failure to notify people properly, saying there was a common law duty to do so.
Henrietta Hill was questioned by the judges about indirect and direct sex and age discrimination and how the lawyers saw their case being applied.
The judges reserved judgement which means it could be a few months before there is a decision.
Judges were engaged
The three judges presiding over the hearing were engaged with the debate.. The Master of the Rolls, 69 year old Sir Terence Etherton, is also president of the Property Bar Association and chairman of the Trust Law Committee and a visiting professor at Birkbeck College. In his youth he was a fencer and a member of the GB International Fencing Team, including being selected for the 1980 Olympics in Moscow.
Lord Justice Sir Nicholas Underhill, 68, is a former president of the Employment Appeal Tribunal so well versed in complex cases. He also is a former Attorney General to the Prince of Wales.
Lady Justice Dame Vivien Rose,60, is the most recently appointed appeal judge of the three, is an expert in EU and UK competition law, tax, has been a Treasury legal adviser and held a post in the Ministry of Defence as Director of Operations and International Humanitarian Law during the Gulf War. Unlike the other two judges, who were educated at public schools, she was educated at a London comprehensive school and is the first lawyer in her family. She also sings in a choir.
Given this expertise of the judges it was extraordinary that Sir James Eadie, QC, the Treasury First Counsel, nicknamed the ” Treasury devil” should try to get the Judicial review declared unlawful.
He was building on the questioning in the previous judicial review which raised whether Ms Justice Dame Beverley Lang was right in granting the judicial review for the 3.8 million women in the first place.
He was shot down with a rapier like comment from the Master of the Rolls who pointed out he could have raised this immediately after her judgement at a special hearing and again when the judicial review was heard.
” Not in my brief” -Sir James Eadie
His reply was “it was not in my brief from the DWP ” and talked about ” the bigger picture”. My interpretation of that is Amber Rudd, then works and pensions secretary, would have been well aware that to strike out a review for 3.8 million women would have been political dynamite and caused widespread furore well beyond the actual case.
But Sir James persisted citing judgments which said that the case could have been held in 1995 as soon as the Pension Act was passed. Michael Mansfield,QC dealt with that claim in his summing up.
What is important is that the judges were really engaged with the arguments and tested both sides equally. They looked at the notification ( or non) notification issue of the pension age rise, listened to the arguments involving EU law and the relevance of the UN Convention of the Elimination of Discrimination Against Women and noted the auto credits issue which allowed 4.6 million men over 60 from 1983 to 2018 to have their national insurance contributions paid by the state.
Sir James Eadie’s tactics seem to be to try and get most of the case law raised by Adam Straw and Henrietta Hill for the 50swomen ruled as irrelevant.
At one point the Master of the Rolls intervened to point out to Sir James that Adam Straw’s argument about one particular case was aimed at making a specific legal point not about the content of the case.
The other DWP tactic was to use out of date information. Sir James used 2011 as the reference for the continuing rise in longevity ( and pension payment costs) – the high point of the increase – ignoring it flatlining since. This I gather was corrected by Michael Mansfield later.
Sir James also got it wrong when he said the purpose of the case was to reduce the pension age to 60 for all women. It isn’t. It is to fully compensate the 3.8 million women who feel cheated about waiting six years for a pension and not being properly told about the change.
The DWP switched tactics over the economic plight of the 1950s women – in the original judicial review he made great play of the fact they were not worse off but some were well off.
This time he acknowledged that 1950s women faced economic disadvantages and social ills but these, he argued, were nothing to do with the raising of the pension age.
For people watching this case it must have seemed a bit arcane that it is based on case law rather than – though Michael Mansfield did highlight their catastrophic plight – going into detail of the hardships of 50swomen. Full statements on the hardships faced by the two women cited in the case were passed to the judges by Michael Mansfield.
Now for a judgment. The point of a judicial review is to question the administration of a policy to see if it was fit for purpose and had not disadvantaged people.
Therefore don’t expect a judgement ordering the women must have all the money. But you could expect a judgement saying the system cheated them which will have to lead to action by the government to redress the matter.
Either way win or lose the BackTo60 campaign will be considerably enhanced by the outcome of this case – because it highlights the women’s plight and will be a force to reckon with. Going to law is much more powerful than trying to persuade MPs.
After all very few campaigners can claim to have their case examined by the Master of the Rolls and I know BackTo60 lawyers are delighted that they got an appeal on all the points they raised in the first judicial review.