Legal background Public service pension schemes and the Court of Appeal’s judgment Judicial schemes
The older judicial pension schemes for salaried judges were substantially set out in primary legislation: most notably the Judicial Pensions Act 1981 (the 1981 Act) and the Judicial Pensions and Retirement Act 1993 (JUPRA). The 1981 Act consolidated the legislation applying to different salaried judicial offices, while JUPRA provided a unified scheme for all holders of salaried qualifying judicial office. The 1981 Act schemes closed to new members on 31 March 1995. The JUPRA scheme was open to all holders of salaried qualifying judicial office appointed on or after that date, and also to judges who held office before that date who elected that it should apply to them or who were appointed to a different office where the 1981 Act would have required a change in pension arrangements.
	As a result of the O’Brien litigation, 2 the Fee-Paid Judicial Pension Scheme (FPJPS 2017) was commenced on 1 April 2017. FPJPS 2017 was established under the Judicial Pensions (Fee-Paid Judges) Regulations 2017 (FPJR 2017), which were made under a new power inserted into JUPRA (section 18A) by the Pension Schemes Act 2015. FPJPS 2017 provides benefits for eligible fee-paid judicial office holders which are intended to mirror as far as possible those available to salaried judicial office holders under JUPRA.
	The PSPA 2013 implemented the cross-Government pension reforms following the Hutton report. It provides the vires for the new Judicial Pension Scheme 2015 (NJPS) which was established under the Judicial Pensions Regulations 2015 (JPS 2015), which came into effect on 1 April 2015. On 1 April 2015, active scheme members of the legacy schemes were transferred into the NJPS except where a judge was entitled to either full or tapered transitional protection; and by the operation of section 18(1) PSPA 2013, the legacy schemes were closed to further accrual except where a judge was entitled to either full or tapered transitional protection.
	These transitional protections were intended to protect judges closest to retirement. They were given effect by regulation 14 of and Schedule 2 to NJPS, which provide for exceptions to section 18(1) PSPA 2013. The exceptions gave full protection to judges who were in service on 1 April 2012 and aged 55 years (i.e. within 10 years of the NPA in the legacy schemes) or older at that date, thereby allowing them to remain in the legacy schemes until retirement. Tapered protection was available to judges who were in service on or before 31 March 2012 and aged between 51 and a half and 55 years on 1 April 2012. These judges were given the choice of whether to join NJPS on 1 April 2015 or to ‘taper’ across at a later date, determined by their date of birth, so that those judges retained legacy scheme benefits for a longer period. These provisions were found to be unlawful in the McCloud litigation and Chapter 2 of Part 1 addresses this discrimination for the judiciary.