The second day of the judicial review into the rise in state pension age was a chance to hear the government’s defence – why it didn’t think the decision to raise the state pension age was unfair on women and why they didn’t need to have any form of compensation. To say it was eyebrow-raising at times is an understatement. Here are some of the main points made:
I’ve never sat through a judicial review hearing before and I’m not a legal journalist, so it was hard to work out how important some of the points being made were (or, indeed, whether they were important at all!).
I missed Michael Mansfield QC’s submission on Wednesday, so I was only able to hear his final points on Thursday afternoon. By definition, a judicial review is about the legal arguments. And legal arguments are generally very precise and the language is rarely easy to understand.
However, it was quite difficult at times to listen to some of the legal arguments made by the government. The lack of explanation and context didn’t help. I was very grateful that Lord Justice Irwin (the lead judge) asked Sir James Eadie QC, representing Department for Work and Pensions, to explain some of the technicalities.
It was good to see so many 1950s women at the high court. The court room was absolutely packed and many of the women who’d made the trip couldn’t get in, or could only get in for part of the hearing. I did wonder how hard it was for the claimants, and some of their supporters, to hear about decisions that had caused huge financial pain, described in such technical and precise language. But, I guess, that’s how the legal system works..
The government owed no duty to be fair to 1950s women
One of the statements made by Sir James Eadie QC, representing the Department for Work and Pensions, said that ‘the enactment of primary legislation carries with it no duty of fairness to the public’. The legal changes to raise the state pension age for women were done through primary legislation (a term normally used to describe main laws passed by parliament) and therefore didn’t need to be fair.
Sir James Eadie also said that MPs were under no obligation to take any notice of the economic disadvantage that women might suffer by their state pension age being raised. But he also added that, because women would be getting their state pension later, parliament must have been aware of the fact that this would affect women. In his words ‘those considering the legislation had the disadvantage well in mind’.
Claimants’ response: The team led by Michael Mansfield QC said that parliament had given the courts the power to look at whether someone’s human rights had been breached by specific legislation being introduced. Michael Mansfield said that the legislation pushed an ‘already disadvantaged group’ into a sub-class who are ‘surviving’. He said that the government should have taken a step back and said ‘is what we’re doing compatible with trying to equalise the state pension age’?
How are women disadvantaged?
One of the statements that caused a sharp intake of breath was when the DWP’s QC said that ‘there is no causal link between the rise in state pension age and the disadvantage experienced by women’.
I must confess that I was rather astounded by this. Sir James Eadie, representing the DWP, referred to a specific case in law and said that, for the court to intervene, would have to be established that there was a direct causal link between the rise in the state pension age and the disadvantage (to use his word) suffered by women. The DWP’s view is that there is no causal link.
Mrs Justice Whipple – the second judge hearing the case – said ‘The rise in state pension age made a bad situation worse?’. The DWP’s barrister replied that ‘you would have to be able to see that the rise in state pension age caused the problems for women’.
I did look round to some of the 1950s women in court at that point. Their expressions spoke volumes.
The way the rise in state pension age was introduced
Much of the criticism of the rise(s) in state pension age have been focused on how the changes have been introduced, not necessarily the principle behind it. But the government doesn’t think that the way the rises were introduced is discriminatory.
The DWP’s QC said that it was ‘hard to see how the method of getting to equal state pension age was discriminatory if the destination [of equal state pension age] was not.’ Lord Justice Irwin asked a question at this point, saying: ‘If you have a discriminatory situation (namely, women getting their state pension earlier than men), then changing it will disadvantage women.’
When is notice not notice?
There were quite a few references to the ‘notice period’ and the 15-year gap between the Pensions Act being passed in 1995 and 2010, when the rise in state pension age began to be phased in.
There was a lot of discussion on what this notice period meant and what, if anything, was supposed to happen during it. The DWP’s QC tried to make the point that the argument was about the length of the notice period and that if 15 years wasn’t enough, who was to say what the ‘right’ notice period was. He was questioned by Lord Justice Irvin who said that the claim is more about the notice [not given] rather than the notice period itself.
Sir James Eadie acting for the DWP said that there was ‘no expectation or obligation’ on the government to notify women that their state pension age had changed. He said that parliament knew when it passed the legislation that some women would not be informed.
Claimants’ response: Michael Mansfield QC said that it was a sad day when those on behalf of the government say that the government has no responsibility to notify people [of a major change in the law].
What happens next
The judgment will be delivered at a later date, in writing. I’m afraid I don’t know when that will be.
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