Legal background Public service pension schemes and the Court of Appeal’s judgment
Public service pension schemes in respect of each workforce (civil service, NHS, teachers, police, firefighters, armed forces, and judiciary) can broadly be considered to fall into two categories: legacy schemes (pre-1 April 2015) and new schemes (from 1 April 2015). Whilst there is a patchwork of enabling legislation for the legacy (largely final salary) schemes across the main public service pension schemes, all of the main public service new schemes are made under (or deemed to be made under) the Public Service Pensions Act 2013 (PSPA 2013).1 Section 1(1) PSPA 2013 allows the making of regulations for the payment of pensions and other benefits in respect of persons specified in section 1(2) PSPA 2013. The person responsible for making (and maintaining) the regulations in respect of each scheme (defined in the PSPA 2013 as the "responsible authority") is specified in Schedule 2 to the PSPA 2013 and is generally the Secretary of State of the department responsible for the administration of the relevant service (e.g. the Secretary of State for Education, in the case of teachers). Where a scheme is devolved, the responsible authority is the equivalent Scottish or Welsh Minister, or the relevant Department in Northern Ireland. In Northern Ireland, devolved schemes are established under the Public Service Pensions Act (Northern Ireland) 2014 (PSPA(NI) 2014). Where these notes refer to existing provisions in PSPA 2013, comparable provisions currently exist for the devolved schemes under PSPA (NI) 2014, unless otherwise indicated. Before being made, the Treasury (or the Department of Finance in Northern Ireland) must consent to scheme regulations, unless an exception applies (as is the case for some but not all devolved schemes) (see sections 3(5) and 3(6) PSPA 2013).
	PSPA 2013 permits a scheme made under section 1(1) to make provision as to any of the matters specified in Schedule 3 – this includes eligibility for membership, the conditions subject to which benefits are payable, the recovery of overpaid benefits, the exclusion of double recovery of compensation or damages, interest on late payment of contributions, the return of contributions (with or without interest), the payment or receipt of transfer values for the purpose of creating or restoring rights to benefits, and the administration and management of the scheme (see section 3(2)(a) PSPA 2013).
	A scheme made under section 1(1) PSPA 2013, if a defined benefits scheme, must be a career average revalued earnings scheme, as defined in section 8(4) of the PSPA 2013 (see section 8(2) PSPA 2013), or a defined benefits scheme of such other description as Treasury directions may specify. A scheme made under section 1(1) PSPA 2013 cannot be a final salary scheme (section 8(3) of the PSPA 2013). The legacy schemes were closed by section 18(1) of the PSPA 2013; the closing date was 31 March 2014 for the legacy Local Government Pension Scheme for England and Wales and 31 March 2015 for any other legacy scheme (note that different provisions applied to public body pension schemes such as those listed in Schedule 10 of the PSPA 13).
	Sections 18(5), 18(5A) and 18(6) allowed for scheme regulations to make further exceptions for those members who were in service immediately before 1 April 2012, or who had ceased to be members of a legacy scheme before that date. Most main public service pension scheme regulations made under section 1(1) of the PSPA 2013 exercised the powers contained in sections 18(5), 18(5A), and 18(6) to introduce transitional and tapered protection. Provisions in section 31 PSPA 2013, largely mirroring those in section 18 PSPA 2013, apply to the legacy schemes of certain public bodies currently listed in Schedule 10, such as the Secret Intelligence Service and the Security Service.
	Those members who did not benefit from an exception in section 18(3) or scheme regulations made under sections 18(5), 18(5A) and 18(6) PSPA 2013 were afforded a ‘final salary link’ in accordance with section 20 and Schedule 7 PSPA 2013. In brief, the provisions providing for a final salary link ensure that, although the member is not accruing further pensionable service in a legacy scheme, it is a member’s salary on leaving service that is used for the purposes of calculating the value of any pension accrued in a final salary legacy scheme before 1 April 2015. Without this provision, a member would be regarded as having left that legacy final salary scheme and their accrued rights under a legacy final salary scheme would therefore be determined by their salary upon leaving that scheme (i.e. on or before 1 April 2015) rather than upon leaving service.
	As set out above, the genesis of the Act was the judgment of the Court of Appeal in Lord Chancellor v McCloud, Secretary of State for the Home Department v Sargeant [2018] EWCA Civ 2844, which found that the judicial and the firefighters’ new pension schemes, that were introduced under the PSPA 2013 with effect from 1 April 2015, contained transitional provisions which led to unlawful direct age discrimination, and in neither case could that discrimination be justified; there was also a finding of unlawful indirect discrimination in relation to equal pay and indirect race discrimination.
	The Act provides a comprehensive remedy to address the discrimination identified by the Court of Appeal, both retrospectively and prospectively, as well as the consequential effects of that remedy.