Wednesday, 8 September 2010

Are the PCS going to challenge the Superannuation Bill in Court?

See my earlier post on this - following the PCS's victory over the last Govt., quashing its attempt to limit civil service redundancy pay - the Coalition is using legislation to push through changes which they have been unable to agree with all the civil service unions - representatives of which gave evidence to a select committee on 27th July 2010.

It seems that litigation is again likely -here is the evidence of the PCS to the Committee:

Mr Lanning: No, we do not because it was the administration that was found to have acted unlawfully and the reason why they did was because they tried to take away without agreement people’s accrued rights, and that is effectively trying to replicate people’s contracts. It is a bit fortunate that maybe BP have made the point for us today that in the private sector people would be protected normally by their contracts on what they are entitled to on redundancy, and that was not available to people in the Civil Service. The main difference you find is actually between the low paid and high paid. We are not opposed to dealing with the exceptions that get quoted in the press, but we do not think you should penalise the majority in order to deal with the problems which are the exceptions rather than the generality. What we are keen to do is a fair deal.
Q6 Chair: So you do not think you are going to finish up with a worse outcome as a result of winning the court action?
Mr Lanning: We do not think so because we think what they are doing is still unlawful. The proposition of the capping at 12 months and 15 months, according to our legal advice, falls foul of exactly the same issue, although under a different law, where the administration is trying to take away the accrued rights under human rights legislation. Pensions are regarded as possessions and we think this will be as well. We do not think it will be a workable scheme. What the administration and the Cabinet Office need to do is come together and have an agreement. There is all this focus always on the terms. The best way to reduce staff is through natural wastage and not through compulsory redundancy, and we did that for about 100,000 people and that would be the best way to save money going forward.
That sounds like fighting talk - that the accrued pension rights of existing employees are their possessions within the meaning of article 1, protocol 1 of the European Convention of Human Rights and are therefore protected by the Human Rights Act 1998. Save that article 1 says this:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

In other words - Parliament can make laws in the public interest to deprive civil servants of their possessions - i.e.their pensions/redundancy rights.    There will have to be a legal debate in Court about whether the most proportionate way is being deployed to achieve a legitimate public interest - and if the PCS will not negotiate - the Govt may well argue that they have no other choice but to forcibly legislate in the public interest of saving the nation from bankruptcy.  

This is probably why the Minister (Criminal Barrister 1977-85) responsible replied to the PCS, in his evidence to the Committee, as follows:

Q38 Chair: Can I ask about the Bill and in particular the notes on compatibility with the European Convention on Human Rights, which is rather a longer paragraph than we usually have in such notes because in the case it was clear that the rights accrued through administrative practice were nevertheless legally enforceable rights. The Bill does not seek to address that directly. It places a cap on redundancy payments as an alternative to addressing that directly, but it could be argued that by limiting the right to compensation expected under the Civil Service Compensation Scheme you are in fact seeking to deprive people of their possessions as defined by Article 1 of Protocol 1 of the European Convention on Human Rights. Have you got a comment on that?
Mr Maude: I am a very long retired lawyer. It is 25 years since I donned a wig and entered a courtroom (in that guise anyway) and I am advised that what we are doing does not in any way breach the European Convention on Human Rights.

The battle lines between Union and Tory are drawn again.  Thankfully the battle will be in the court room rather than the streets.

POST SCRIPT - this Govt really is rushing through its legislation without proper consideration - by a majority of 63 - it had a motion passed last night which limits consideration of the Superannuation Bill to only 16th Sept in Committee and to only 7 hours thereafter in the House before it goes to the Lords.  This is a Bill which has major implications for 1,000s of civil servants?


Motion made, and Question put forthwith, (Standing Order No. 83A(7)) ,
    That the following provisions shall apply to the Superannuation Bill:
    1. The Bill shall be committed to a Public Bill Committee.
    Proceedings in Public Bill Committee
    2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 16 September 2010.
    3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
    Consideration and Third Reading
    4. Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of those proceedings.
    5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings on consideration.
    6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading. - (Jeremy Wright.)
    The House divided: Ayes 307, Noes 244.

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