Public Service Pensions And Judicial Offices Act 2022

Commentary on provisions of Act

Part 1: Public Service Pension Schemes

Chapter 1: Schemes other than Judicial Schemes and Local Government Schemes

Section 1: Meaning of "remediable service"

95. This Section identifies periods of service that will be subject to the remedy to address the discrimination identified by the Court of Appeal. This section underpins the treatment of all members with affected pensionable service, whether they are active, deferred, a pensioner member or deceased. Sections 1(3) to 1(6) set out four conditions that must be satisfied:
    1. that the service relates to a period when the discrimination arose;
    2. that the member was eligible for transitional protection or would have been eligible for transitional protection but for the discriminatory requirement in the schemes;
    3. that the member was on or before 31 March 2012 a member of a legacy scheme or, in the case of certain schemes for firefighters, eligible to be a member of such a scheme; and
    4. that the member does not have a disqualifying break in service falling within the period set out in section 1(6).
96. Section 1(7) provides that a disqualifying break in service for the fourth condition is a period of more than five years. This reflects the rules of public service pension schemes that allow members who leave to rejoin subsequently and have their service aggregated where the gap between leaving and rejoining is 5 years or less. Section 1(7)(b) provides that a break in service relating to a period where the member was in another pension scheme as a result of a compulsory transfer of employment to which the Fair Deal policy applies, is not a disqualifying break. Section 1(7)(c) provides that a break in service relating to a period where, as a result of a local government contracting-out transfer, the member was in another pension scheme that offers pension arrangements that are broadly comparable with those offered to the member before the transfer, is not a disqualifying break
97. Section 1(10) identifies that further provision is made later in the Act to allow certain persons to count a period of service as pensionable service where it would not otherwise have been, in particular where the second condition is not met due to a decision by the person to opt-out (see section 5).

Section 2: Remediable service treated as pensionable under Chapter 1 legacy schemes

98. Section 2(1) provides that where a person has a period of remediable service under a Chapter 1 new scheme that service is to be retrospectively treated as pensionable service under the relevant Chapter 1 legacy scheme (of which they would have been entitled to be a member in the period 1 April 2015 to 31 March 2022 but for age discrimination). The person is retrospectively treated as never having had pensionable service under the Chapter 1 new scheme. This is the core retrospective provision that ensures that a person with remediable service is returned with retrospective effect to the pension scheme in which they would have been, but for the discrimination.
99. Section 2(2) clarifies that where a person has separate pension entitlements in relation to different employments, they will also have separate periods of remediable service. For example, this could be someone who has been a member of both an NHS and Civil Service pension scheme simultaneously on account of having two part-time jobs and therefore essentially has two sets of "remediable service". However, section 38(2) sets out that where a member has service in multiple employments or offices and that service is aggregated for pension purposes, that service should be treated as a single employment or office.
100. Section 2(3) provides that where section 2(1) applies, it has effect for all purposes, unless the Act explicitly provides otherwise (such as under section 2(4)); be that determining which pension benefits were or are payable or determining to which pension rights members were or are entitled for the purposes of assessing whether any tax charge is due.
101. Section 2(4) provides an exception to the effect of section 2(1); that a member or employer liability to pay contributions is unchanged where a person is treated as having been a member of a legacy scheme under section 2(1). This means that contributions liabilities of members or employers are not affected by the retrospective provision made by section 2(1). For members who had remediable service in the new scheme prior to section 2(1) coming into force, this exception means that employee and employer contributions liabilities remain in the new scheme; this helps to avoid complex tax implications for members and schemes that would occur if the retrospective effect of section 2(1) applied to contributions liabilities. Further provision is made later in the Act (section 15 to 17) to correct any (notional) overpayment or underpayment of contributions the member has made compared to the amounts they would have paid, had they always been in the relevant scheme and had their contributions liabilities arisen in the relevant scheme instead.
102. Section 2(5) provides that any benefits that a member has in a Chapter 1 new scheme that relate to additional voluntary contributions made by the member or to a transfer into that scheme from another pension scheme, are not affected by section 2(1). The Act makes provision in respect of these matters at sections 20 and 21.
103. Section 2(6) refers to further provision that is made later in the Act to modify the application of section 2(3)(b) in respect of pensioner and deceased members. The policy objective is to ensure that changes to pension entitlement are not made until the member or their beneficiaries have had the opportunity to elect to instead receive new scheme benefits in relation to the member’s remediable service.

Section 3: Benefits already paid

104. This section relates to the treatment of benefits already paid from a new public service pension scheme to a pensioner member or in respect of a deceased member. Where the payments were in relation to remediable service, but that service is now retrospectively treated as service under a legacy scheme by virtue of section 2(1), any benefits paid are to be retrospectively treated as if they were paid by the Chapter 1 legacy scheme and not as if paid by the new scheme.
105. All members who have remediable service will receive their benefits in relation to that service from the relevant legacy scheme, even where they elect to receive benefits equivalent to those that would have been paid from the new scheme. The purpose of this approach is to avoid the need for administrative complexities related to tax, to allow for any overpayment or underpayment of benefits to be calculated, and to provide clarity as to where scheme costs fall.

Section 4: Meaning of "the relevant Chapter 1 legacy scheme" etc

106. Section 4 defines the meaning of "relevant Chapter 1 legacy scheme". The purpose of this section is to ensure that members in scope of section 1, who will be retrospectively ‘moved back’ to a Chapter 1 legacy scheme in respect of their remediable service in accordance with section 2(1), are returned to the appropriate Chapter 1 legacy scheme or section of a Chapter 1 legacy scheme. Most of the public service workforces have two or more Chapter 1 legacy schemes or have Chapter 1 legacy schemes with different sections for members depending on their joining date(s). The appropriate Chapter 1 legacy scheme, or section of a Chapter 1 legacy scheme, for an eligible member will usually be the scheme or section of which they were last a member (section 4(1)). Under section 4(2), where an individual opted-out of their Chapter 1 legacy scheme on or before the closing date (defined at section 1(8)) and on that date the rules of that scheme prohibited a person who opted-out from re-joining, the relevant Chapter 1 legacy scheme for that individual will be one which they would have been entitled to join on the closing date.
107. Under section 4(3), where an individual opted-out of their Chapter 1 new scheme after the closing date or ceased to be in an eligible employment or office, but re-joined their Chapter 1 new scheme or resumed service in an eligible employment or office before 1 April 2022, if the rules of the Chapter 1 legacy scheme of which they were last a member prohibited a person from re-joining, the relevant Chapter 1 legacy scheme for that individual will be one which they would have been entitled to join at the time they re-joined their Chapter 1 new scheme or resumed service in an eligible employment or office. It is possible that an individual had not previously been participating in a Chapter 1 legacy scheme or that there is no Chapter 1 legacy scheme which allows members who have opted-out to re-join; in such cases, subsections (6) and (8) provide that the appropriate Chapter 1 legacy scheme or section of a scheme will be the Chapter 1 legacy scheme or section of that scheme that they would have been entitled to join on 31 March 2012 (which corresponds with the condition set out in section 1(5)).
108. Section 4(4) provides for cases involving excess teacher service (as defined in section 110(2)).

Section 5: Election for retrospective provision to apply to opted-out service

109. Where an individual chose to opt out of a Chapter 1 legacy or Chapter 1 new scheme in relation to service between 1 April 2015 and 31 March 2022, section 5(1) of the Act provides that scheme regulations for the legacy scheme must make allowance for that service to be reinstated. Section 5(2) provides that, where an election is made, the period in question (being a period or periods of service between 1 April 2015 and 31 March 2022) is treated as pensionable service for the purposes of determining a member’s remediable service under section 1. This section ensures that members who would have had remediable service but for the fact that they opted-out of either a Chapter 1 legacy scheme or a Chapter 1 new scheme (for example, because they considered the Chapter 1 new scheme to be unsuitable) are able to re-join their Chapter 1 legacy scheme provided they fulfil the eligibility criteria set by scheme regulations. Once they have done so, the same provisions and processes will apply to them as to other eligible members; for example, they will be able to choose which set of benefits they wish to receive for the remedy period.
110. Section 5(3) and 5(4) provide that scheme regulations must set a deadline for members to make an election under section 5(1) and provide that the deadline must be no later than one year beginning with the day on which a remediable service statement is first provided in respect of the member (or such later time as the scheme manager considers reasonable). Section 5(3)(c) makes the member’s election irrevocable.
111. Under section 5(5) scheme regulations may make provision pursuant to which a person must first make an application to the scheme before an election can be made, or that the application may be refused unless a condition specified in the regulations is first met, for example.
112. Examples of conditions that may be specified pursuant to section 5(5) are set out in section 5(6). These may include, for example, allowing applications only where the member can demonstrate that they opted out as a consequence of the discrimination that arose or, where an individual participated in a partnership pension account, that an application may only be granted where they transfer to the relevant scheme those rights in their partnership pension account that are referable to contributions made in respect of opted out service, or, where their partnership pension account rights have already been transferred to another scheme, make a payment to the relevant scheme in respect of that transfer, and surrender any entitlement that arises in relation to those contributions made in relation to the employment (by the employer or the member). Partnership pension accounts are defined contribution occupational pension scheme accounts offered to employees of the Civil Service as an alternative to membership of one of the main public service defined benefit pension schemes. Instead of opting out of pension scheme membership entirely, members may have chosen to have a partnership pension account.

Section 6: Immediate choice to receive new scheme benefits

113. This section requires that scheme regulations make provision for a pensioner member or the beneficiary of a deceased member, in respect of whom Chapter 1 legacy scheme benefits are payable, to make an election to receive Chapter 1 new scheme benefits in respect of their remediable service. What is a deferred choice for active and deferred members (under section 10) needs to be an immediate choice in relation to members who have already retired or died by the time the remedy is implemented, as entitlement to the payment of benefits in relation to remediable service will have already arisen. Pensioner members, and survivors of deceased members (or authorised representatives, where appropriate) need to be able to make a choice as to which set of benefits to receive as soon as the scheme is able to facilitate it.
114. Section 6(2) defines the concept of "relevant member" for the purpose of interpreting section 6(1).
115. Under section 6(3), where a pensioner member has multiple employments that are pensionable separately provision must be made to allow for separate elections in respect of each employment.
116. Section 6(4) states that section 2(1) only has effect for the purposes of determining the amount of benefits payable in relation to a member's remediable service if an election for new scheme benefits under section 6 is not made.
117. If a section 6 election is made, then section 2(1) has effect but not for the purposes of section 2(3)(b): the benefits payable in respect of any of the member’s remediable service in a Chapter 1 new scheme will therefore be unchanged. Deferring the application of section 2(3)(b) until the member or their beneficiary has had the opportunity to determine whether they wish to elect to receive new scheme benefits in relation to the member’s remediable service means that the amount of benefits payable to or in respect of a pensioner or deceased member will not change upon the coming into force of section 2(1). This is designed to avoid double corrections of members’ pension benefits and to avoid unnecessary revisions to tax returns in cases where members who are already in receipt of their pension wish to retain their existing benefits.
118. Section 6(5) provides that the effect of a section 6 election is that the benefits payable by the Chapter 1 legacy scheme in relation to their legacy scheme remediable service (i.e. the service that was originally in the legacy scheme, prior to the effect of section 2(1)) are new scheme benefits. The overall effect of a section 6 election is that all the benefits payable in respect of remediable service will be new scheme benefits.
119. Section 6(7) confirms that elections under section 6 have effect in relation to the whole period of the member’s remediable service in the employment or office in question that is pensionable service under the scheme. For members who may have had tapered protection, they will not be able to retain mixed benefits for the period of remediable service; they must choose to have either all new scheme benefits or all legacy scheme benefits for the whole period of remediable service.

Section 7: Elections by virtue of section 6: timing and procedure

120. Section 7(1) sets out that an election under section 6 must be made before the end of the section 6 election period (which is defined in section 7(2)) and is treated as taking effect immediately before the member became a pensioner member or, if the member died before becoming a pensioner, immediately before the member’s death. The effect of the election is therefore retrospective, and the legislation specifies the timing of that retrospection to ensure that the member’s pension rights are retrospectively treated as having arisen at the correct point in time (i.e. just before the pension benefits became payable).
121. Section 7(2) provides that the end of the section 6 election period is one year from the date that a remediable service statement is first provided by the scheme or such later time as the scheme manager considers reasonable in the circumstances. A remediable service statement is provided for later in the Act. It will contain information about the benefits payable in relation to a member’s remediable service if an election to receive new scheme benefits is made or not made.
122. Section 7(3) sets out further provision that scheme regulations may make to manage immediate choice elections.

Section 8: Power to deem election by virtue of section 6 to have been made

123. It is possible that where a pension is already in payment, the member (if they are a pensioner) or survivor or personal representative (where a member is deceased) does not engage with the process of making an immediate choice within the section 6 election period specified in section 7(2).
124. Section 8 therefore provides that where no decision as to whether a section 6 election is to be made has been communicated to the scheme within the election period, scheme regulations may make provision deeming that an election has been made. This might be appropriate, for example, if the member or survivor lacks the legal capacity to make a decision. Section 8(1) provides that scheme regulations may treat a section 6 election as having been made immediately prior to the end of the election period if certain conditions have been met. Section 8(3) envisages that such conditions could relate to the value of benefits payable. This would, for example, allow a scheme to deem an election to be made where it is clear this would lead to a better outcome for the member.

Section 9: Persons with remediable service in more than one Chapter 1 legacy scheme

125. This section provides that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, an election under section 6 applies in all of those schemes. Section 9(2) and 9(3) specify how the election made under section 6 applies in relation to a person’s remediable service in another scheme. Where the person is also a pensioner member in relation to their remediable service in the employment or office under another scheme, or is deceased, the election has effect in that scheme as an election under section 6 and therefore new scheme benefits are payable in relation to the remediable service. Where the person is a deferred member in relation their remediable service in the employment of office under another scheme, the election has effect in that scheme as an election under section 10 and new scheme benefits will be payable in relation to the remediable service.

Section 10: Deferred choice to receive new scheme benefits

126. This section requires schemes to make regulations that permit an election to be made in relation to the remediable service of individuals who are active or deferred members when section 2(1) comes into force. Not all eligible members will be better off receiving Chapter 1 legacy scheme benefits for the remedy period. This section therefore allows active and deferred members to make the choice as to whether Chapter 1 legacy scheme or Chapter 1 new scheme benefits are most beneficial for them in the period immediately before their benefits are expected to be paid for the first time, when they will have greater certainty over factors such as their career path and earnings. It is therefore a ‘deferred choice’.
127. Section 10(3) provides that where an active or deferred member has multiple employments that are pensionable separately provision must be made to allow for separate elections in respect of each entitlement. For example, an active or deferred member may have different periods of employment in a workforce or across multiple workforces and may have decided to keep their pension entitlements separate (rather than transfer service from one scheme to another or to aggregate different periods pensionable under one scheme) and where that is the case, they will be able to take a decision in relation to each entitlement.
128. Section 10(4) provides that where an election is made the member or their beneficiary is entitled to Chapter 1 new scheme benefits in relation to their remediable service (in the absence of an election they (or their beneficiary) will be entitled to Chapter 1 legacy scheme benefits in relation to their remediable service by virtue of section 2(1)) and the benefits are paid from the legacy scheme.
129. Section 10(5) confirms that elections under section 10 have effect in relation to the whole period of the member’s remediable service in the employment or office in question that is pensionable service under the scheme. For members who may have had tapered protection, they will not be able to retain mixed service for the period of remediable service; they must choose to receive either new scheme or legacy scheme benefits in relation to their remediable service.

Section 11: Elections by virtue of section 10: timing and procedure

130. Section 11(1) provides that scheme regulations under section 10(1) must set a deadline by which an election in relation to a member’s remediable service must be made. Section 11(2) provides that the deadline must be no earlier than one year before the day on which new scheme benefits would become payable in relation to the member if they were to make an election under section 10.
131. Section 11(3) states that an election must be made before the deadline and takes effect immediately before the member becomes a pensioner member of the scheme. The effect of the election in this case is therefore prospective, and the legislation specifies the timing of when the election comes into force to ensure that the member’s pension rights prospectively arise at the correct point in time (i.e. just before the pension benefits become payable).
132. Section 11(4) states that where an election is made on behalf of a deceased member, the election is treated as having taken effect immediately before the member’s death. The effect of the election is therefore retrospective, and the legislation specifies the timing of that retrospection to ensure that the member’s pension rights are retrospectively treated as having arisen at the correct point in time (i.e. just before the pension benefits became payable).
133. Section 11(5) sets out what scheme regulations made under section 10(1) may in particular specify, which includes how and when an election may be revoked and who may make an election in respect of a deceased member. However, under section 11(6), an election cannot lapse or be revoked after any benefits have become payable to or in respect of the member. Under section 11(7), where an election lapses or is revoked, the election is treated as never having had effect.

Section 12: Power to deem election by virtue of section 10 to have been made

134. While it is less likely that an active or deferred member will fail to engage with the decision-making process than a pensioner member or representative of a deceased member (as they will need to communicate with the scheme in order for their pension to be put into payment when they retire), it is still possible that the member will not make a decision.
135. Section 12 therefore provides that scheme regulations made by virtue of section 10(1) may make provision about cases where no decision as to whether an election is to be made is communicated to the scheme before the specified deadlines set in accordance with section 11(1). This might be appropriate, for example, if the member or survivor lacks the legal capacity to make a decision.
136. Section 12(2) and 12(3) set out that provision may be made to deem an election to have been made (so the member would be entitled to new scheme benefits) and to specify conditions that are to be met if that is to be the case. Section 12(3) envisages that such conditions could relate to the value of benefits payable. This would, for example, allow a scheme to deem an election to be made where it is clear this would lead to a better outcome for the member.

Section 13: Persons with remediable service in more than one Chapter 1 legacy scheme

137. This section provides that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, an election under section 10 applies in all of those schemes. Section 13(2) and 13(3) specify how the election made under section 10 applies in relation to a person’s remediable service in another scheme. Where the person is also an active or deferred member in relation their remediable service in the employment of office under another scheme, the election has effect in that scheme as an election under section 10 and new scheme benefits will be payable in relation to the remediable service. Where the person is a pensioner member in relation to their remediable service in the employment or office under another scheme, or is deceased, the election has effect in that scheme as an election under section 6 and therefore new scheme benefits are payable in relation to the remediable service.

Section 14: Pension benefits and lump sum benefits: pensioner and deceased members

138. This section sets out the treatment of overpaid and underpaid pension benefits and lump sum benefits where a pensioner member or a representative of a deceased member is entitled to pension benefits from a legacy scheme in relation to a period of remediable service. Corrections may be necessary owing to the different pension benefits and lump sum benefits that arise as a consequence of the operation of section 2(1) and the section 6 election process.
139. Section 14(3) applies when a pensioner member or a representative of a deceased member makes an election to receive new scheme benefits, or if later, on the coming into force of section 2(1). If no election has been made to receive new scheme benefits, section 14(3) applies immediately before the end of the period during which a pensioner member or a representative of a deceased member could have made such an election (see definition of "the operative time" in section 14(7)). Under section 14(3), if the aggregate of pension benefits paid from a legacy scheme in respect of the remediable service exceeds the aggregate of pension benefits due from the legacy scheme (as a result of section 2(1) and 6(4) and (5)), then the beneficiary must pay the difference to the scheme. Section 14(4) states that where a member received less pension benefits than they are now entitled to under the legacy scheme, then the scheme manager will pay the difference.
140. Section 14(5) and 14(6) make equivalent provision to 14(3) and (4) in relation to any lump sum benefits already paid in respect of a member’s remediable service and any that the member is entitled to under the legacy scheme.
141. Where a pensioner member or the representative of a deceased member elects to receive new scheme benefits in relation to a period of remediable service (under section 6(1)) they may be entitled to higher or lower benefits as a result of their choice. Similarly, where a pensioner member or the representative of a deceased member decides not to make a section 6 election in relation to a period of remediable service they may be entitled to higher or lower benefits, where the remediable service includes a period that would have been pensionable under a Chapter 1 new scheme but for section 2(1). Section 14(3) to 14(6) provide for any overpayment or underpayment in benefits before the choice was made and came into effect to be corrected.
142. The reason for treating lump sum benefits and pension benefits separately is that the payments are assessed differently for the purposes of determining whether tax is due on the payments. Pension lump sums paid to pensioner members and in relation to those who died before reaching age 75 are usually exempt from tax. The legacy pension schemes generally (but not universally) provide for an automatic lump sum to be paid, although sometimes with both an automatic lump sum and an option to convert some of the separate continuing pension to lump sum (known as "commutation"). However, the new schemes generally do not provide for any automatic lump sum, but allow a member to commute a proportion of their pension to receive a lump sum payment instead. Where a pensioner member or the representative of a deceased member becomes entitled to receive alternative benefits to those that have already been paid (i.e. makes an election to receive new scheme benefits rather than legacy scheme benefits in relation to a period of remediable service that was pensionable service under a Chapter 1 legacy scheme (under section 6), or does not make such an election and therefore becomes entitled to legacy scheme benefits rather than new scheme benefits in relation to remediable service that would, apart from section 2(1), have been pensionable service under a Chapter 1 new scheme) they will also need to make a decision about any lump sum payable, including whether to convert that to or from pension. Where they choose to receive a lower lump sum than that already paid, they will need to repay the difference to the scheme, but they will be able to instead choose to receive an equivalent or larger lump sum where the existing scheme provisions allow. The same choices will be available to members as would have been available to them had they been members of the relevant scheme during their remediable service.

Section 15: Pension contributions: pensioner and deceased members

143. Section 15 provides for any overpayment or underpayment of member contributions made in relation to the remediable service of a pensioner or deceased member to be corrected. By virtue of section 2(4), contributions liabilities are unaffected by section 2 for any member that is retrospectively returned to the legacy scheme under that section. However, when compared to the contributions that the member would have paid, had they always been in their legacy scheme, there may be a notional over or underpayment. Similarly, where a member opts for new scheme benefits, they may have paid more or less in contributions than they would have had they been a member of the new scheme, leading to a notional over or underpayment of contributions.
144. Section 15(3) and 15(4) provide that where at the operative time (see definition at section 15(5)), in relation to remediable service, there is a difference between the amount of member contributions paid by a pensioner or deceased member and the amount of member contributions that would have been paid by that pensioner or deceased member to the relevant legacy scheme, any surplus or shortfall must be covered. In other words, section 15(3) provides that the scheme manager must pay compensation in respect of any overpaid contributions, while section 15(4) provides that the pensioner or a representative of a deceased member must pay to the scheme any amounts required in contributions to make up an underpayment.
145. Section 15(5) defines the operative time. If an election under section 6 is made to receive new scheme benefits then the operative time is either the time the election is made, or if later, the coming into force of section 2(1) in relation to the Chapter 1 legacy scheme. If no election is made, the operative time is the end of the section 6 election period in relation to the pensioner or deceased member.
146. Section 15(6) defines the term "the paid contributions amount" and includes any member contributions paid to a Chapter 1 legacy or new scheme and, where an election has been made under section 5 for opted-out service to be reinstated, any contributions paid to a partnership pension account.
147. Section 15(7) provides that in determining the contributions that have been paid by a pensioner or deceased member under section 15(3) and 15(4), where the contributions were to a partnership pension account, that amount includes any tax relief deducted at source in relation to the contributions.
148. Section 15(8) defines the term "the adjusted contributions amount", which is the amount of contributions that the pensioner or deceased member would have paid in relation to their remedial service had they always been a member of the relevant scheme, reflecting whether they have chosen to receive legacy or new scheme benefits in relation to that service.
149. The reason for taking this approach is to ensure that pensioner or deceased members pay the correct contributions for the benefits that they receive. In most of the public service schemes, contributions rates are the same for legacy schemes and new schemes; however there are differences in some of the schemes and, further, the definition of pensionable pay will also vary between some legacy schemes and new schemes (for example overtime and allowances are not usually pensionable in a final salary scheme, but might be in a career average scheme). Section 18(2) and 18(3) makes further provision for an adjustment so that the member is placed in the correct position net of tax.

Section 16: Pension contributions: active and deferred members (immediate correction)

150. This ssection provides for the correction of any overpayment or underpayment of member contributions made in relation to the remediable service of active and deferred members at the time when section 2(1) comes into force, where pensionable service that would otherwise have been service in the new scheme is returned to the legacy scheme by virtue of ssection 2(1).
151. As under section 15, these member’s contributions liabilities are unaffected by section 2(1) (due to section 2(4)), but when compared to the contributions that they would have paid had they always been a member of the legacy scheme, they may have paid more or less.
152. Section 16(3) and 16(4) provide that where, pursuant to section 2(1), there is a difference between the amount of member contributions paid by an active or deferred member and the amount of member contributions that would have been paid by that active or deferred member had they always been in the legacy scheme, the surplus or shortfall must be covered. In other words, section 16(3) provides that the scheme manager must pay compensation for any overpaid contributions, whilst section 16(4) provides that the active or deferred member, or, where the member is deceased, their personal representatives, must pay to the scheme any amounts required to make up an underpayment.
153. Section 16(5) defines the term "the paid contributions amount", which includes any member contributions paid to a Chapter 1 legacy or new scheme and any contributions paid to a partnership pension account where they have made an election under section 5.
154. Section 16(6) provides that in determining the contributions that have been paid by an active or deferred member under section 16(3) and 16(4), where the contributions were to a partnership pension account, that amount includes any tax relief deducted at source in relation to those contributions.
155. Section 16(7) defines the term "the adjusted contributions amount", which is the amount of contributions that the active or deferred member would have paid in relation to their remediable service in the legacy scheme had they always been a member.
156. This section applies to active and deferred members when section 2(1) comes into force and as a result any remediable service that would, apart from section 2(1) had been pensionable service in a Chapter 1 new scheme is now treated as pensionable service under the relevant Chapter 1 legacy scheme. Section 16 ensures, in combination with section 18, that such members are put into, so far as possible, the same position with respect to contributions that they would have been in had they always been in the legacy scheme. The contributions under the legacy scheme may differ from those that were previously paid under the new scheme and either compensation will be due from the scheme manager or a payment will be required from the member or their personal representatives to correct the contributions position. Some members may end up opting for new scheme benefits before their benefits are paid (making use of the election in section 10). In this case, further provision is made later in the Act to adjust their contributions again to reflect this (section 17). Section 18(2) and 18(3) makes further provision for an adjustment so that the member is placed in the correct position net of tax.

Section 17: Pension contributions: active and deferred members (deferred correction)

157. This section concerns the correction of contributions where an active or deferred member of a Chapter 1 legacy scheme elects to receive new scheme pension benefits under section 10.
158. Section 17(3) and (4) provide that where, immediately after the end of the period during which an election for new scheme benefits may be made under section 10(1), the aggregate of the pension contributions paid by a member up to that point and the contributions that would have been paid to the relevant new scheme are different, the surplus or shortfall must be covered. Section 17(3) provides that the scheme manager must pay compensation for any overpaid contributions and section 17(4) provides that the member or, where the member is deceased, their personal representatives must pay the scheme an amount to make up any underpayment.
159. Section 17(5) defines the term "the paid contributions amount" and includes any member contributions paid to a Chapter 1 legacy or new scheme and any contributions paid to a partnership pension account in respect of their service where they have made an election under section 5.
160. Section 17(6) provides that in determining the contributions that have been paid by a pensioner or deceased member under section 15(3) and 15(4), where the contributions were to a partnership pension account, that amount includes any tax relief deducted at source in relation to the contributions.
161. Section 17(7) provides that the paid contributions amount includes any amounts paid either by the scheme to the member or by the member to the scheme under section 16 (immediate correction).
162. Section 17(8) defines the term "the adjusted contributions amount", which is the amount of contributions that the member should have paid in relation to the new scheme benefits they have chosen to receive.
163. This section applies where an election to receive new scheme pension benefit is made in relation to an active or deferred member under section 10. This section ensures that they are put into, so far as possible, the position with respect to contributions that they would have been, had they always paid contributions on the basis of new scheme membership, accounting for contributions already paid. Section 18(2) and 18(3) makes further provision for an adjustment so that the member is placed in the correct position net of tax.

Section 18: Powers to reduce or waive liabilities

164. Section 18 provides that scheme regulations for a legacy scheme may make provision whereby a liability on an individual to repay overpaid benefits (section 14) or to pay an amount in respect of underpaid contributions (section 15, 16 or 17) is reduced or waived. This power is intended to allow schemes discretion where sums are owed to schemes by members as a result of corrections made under section 14, 15 ,16 or 17. For example, where a pensioner member has been overpaid their pension benefit and reimbursing the pension scheme would cause hardship, the pension scheme could write off part of the liability. Similarly, section 18 provides that scheme regulations for a legacy scheme may make provision where a scheme manager has a liability to pay compensation to a member under section 15, 16 or 17, to either reduce that amount to reflect excessive tax relief or, with respect to amounts owed under section 16, by agreement with the member, waive it entirely.
165. Section 18(1) allows scheme regulations to make provisions to reduce or waive a liability owed by a person to the scheme under section 14.
166. Section 18(2) allows schemes to make provisions to reduce or waive a liability owed by a person to the scheme under section 15, 16 or 17.
167. Section 18(3) and 18(4) envisage that scheme regulations may include provision that reduces liabilities by tax relief amounts. This reflects the fact that payments due under this Chapter may be made at a different time to when they would have been made if the member had always been entitled to the pension benefits that they choose to receive and, as a result, might have received different tax treatment. For example, where a member would have been entitled to tax relief if payments had been made in a different tax year, but has lower taxable income at the time the payment is actually made (e.g. because their earnings are below the personal allowance) or if a member is no longer active, they will not be eligible for tax relief. Under this provision, scheme regulations can reflect that and reduce the liability accordingly.
168. Section 18(5) to 18(7) envisage that schemes may reduce or waive compensation owed by the scheme to individuals under section 15, 16 or 17. In particular, it is intended that the compensation may be reduced to reflect tax relief amounts. The policy intent of these sections is to ensure that where a member is either returned to the legacy scheme under section 2 or makes an election to receive new scheme benefits under section 6 or 10, they are returned to the correct net position with respect to contributions and tax relief.
169. Section 15, 16 and 17 correct the member’s contributions position by either allowing the scheme to pay compensation where there has been an overpayment of contributions or requiring a payment from the member to make up for underpaid contributions. These sections ensure that the member’s position is corrected for any excess tax relief received for contributions that were historically paid. For example, where a member has previously overpaid contributions, they will be due compensation from the scheme. However, they will have received excessive tax relief on the higher amount. This section allows schemes to reduce the compensation paid to the member by the amount of the excess tax relief to ensure that the member is returned to the correct position with regards to their contributions and tax relief.
170. Section 18(8) provides that scheme regulations may make provision to reduce or waive, with the member’s agreement, any liability for the scheme to pay members compensation in relation to overpaid contributions under section 16. The purpose of this is to allow members to defer any correction to their contributions position until the point their benefits are paid and their choice of legacy or new scheme benefits is known, thereby avoiding the need to correct the contributions position twice where the member envisages electing to receive new scheme benefits in the future.

Section 19: Pension credit members

171. Pension sharing orders for divorces or dissolutions of civil partnerships generally award the member’s ex-spouse a percentage of the value of the pension at the time of the divorce. The value is expressed as a Cash Equivalent Transfer Value (CETV). The ex-spouse/civil partner then becomes a member of the pension scheme in their own right and is known as the pension credit member, with a pension equivalent to the credit. As a result of the remedy, it is possible that the value of the pension at the time of the divorce/dissolution would have been different had the member always been a member of the alternative scheme for the remedy period. This means that even if the percentage quoted in the pension sharing order remains the same, the actual amount credited to the pension credit member may have been different.
172. This section therefore enables the responsible authority for a Chapter 1 legacy scheme or a Chapter 1 new scheme (as the pension credit member may have credits in a legacy scheme, a new scheme or both depending on their particular divorce settlement) to award any additional credit due to the pension credit member as a result of the remedy. However, it does not give schemes the power to amend the pension sharing order itself.
173. This is an important part of the Government’s commitment in its consultation response 1 that where the alternative CETV would have been higher, the pension credit member’s benefits will be increased in proportion with the increase in CETV to reflect the additional amount.
174. Section 19(1) permits a scheme to make regulations about the resulting pension credit (the benefit awarded by the Court to the former spouse or civil partner) and the pension debit (the equivalent deduction made to the entitlement of the member with remediable service).
175. Section 19(4) envisages that scheme regulations may include provision to adjust the pension benefits of both parties to the Court order (the pension credit member and the pension debit member) to reflect a retrospective change in the entitlement relating to the period of remediable service under this Chapter. The scheme may make provision to adjust a pension debit (which relates to the member with remediable service) where the member elects to receive new scheme benefits. The scheme may make provision to adjust a pension credit on the assumption that an election is made or is not made. The reason for providing for scheme regulations to make an assumption is to enable the scheme to award the higher pension credit, based on the higher value of the legacy or new scheme benefits, and to reflect the fact that the pension credit may be accessed prior to the point where a pension debit member is able to make their election (for example, where the pension credit member is younger than the pension debit member).
176. As members with remediable service that is mixed (because they had tapered protection) will not be able to retain that mixed service under the remedy, section 19(5) provides that scheme regulations must include provision that a pension credit may only be based on the value of legacy or new scheme benefits in relation to the remedy period and cannot be based on a combination of the two.

Section 20: Voluntary contributions

177. Section 20 provides that scheme regulations may make provision about any additional pension benefits or entitlement to earlier payment of benefits that members have obtained by making additional voluntary contributions during the remediable period.
178. Section 20(2) allows schemes to adjust any rights gained from voluntary contributions in a legacy scheme where a member elects to receive new scheme benefits under section 6 (immediate choice) or section 10 (deferred choice). In particular, the rights can be varied so that they are of an equivalent value to rights the member would have secured under the new scheme if the voluntary contributions had been paid to that scheme (section 20(3)).
179. Section 20(4) envisages that scheme regulations for a Chapter 1 new scheme may provide for any rights to additional benefits or earlier payment of benefits to be extinguished. Section 20(5) provides that where such provision is made, scheme regulations must provide for alternative benefits to be awarded in the relevant Chapter 1 legacy scheme or compensation. This allows the voluntary contributions made by the member to be honoured. There are three permitted options: benefits of an actuarially equivalent value to the extinguished rights; benefits that are the same as the benefits that would have arisen had the voluntary contributions been made to that scheme; or compensation for the voluntary contributions made. Where compensation is provided the amount paid will be equal to the voluntary contributions paid, less any tax relief given which will place the member in the net position in which they would have been had they not made the voluntary contributions.
180. The policy is to allow members to retain the benefit of any additional voluntary contributions that they have made during their remediable service. Where a member does not wish to receive additional benefits when they move to the legacy scheme in relation to their remediable service, they, or in the case of a deceased member, their personal representatives, will instead be entitled to compensation for the contributions that they have made. In some of the new schemes, members were able to make voluntary contributions to buy out an actuarial reduction to their pension benefits that would otherwise apply where their benefits were brought into payment before the scheme Normal Pension Age (NPA). This type of benefit is not necessarily appropriate in the corresponding legacy scheme, where normal retirement age is typically earlier. In such cases the member would receive an alternative additional benefit in the legacy scheme, but if an election to receive new scheme benefits in relation to the member’s remediable service were ultimately made, the policy is that the original benefit purchased would apply (i.e. the buy-out of actuarial reduction on early retirement).

Section 21: Transfers

181. This section provides that scheme regulations may make provisions about transfers in and out of the scheme. Where a member leaves a pension scheme they may be eligible to transfer their pension rights to another pension scheme. Where a member joins a public service pension scheme they may be able to transfer other pension rights into the scheme, including rights from another public service pension scheme. Section 21(1)(a) provides for scheme regulations to make provision about the transfer out of remediable service. This will allow schemes to reflect, when calculating the transfer value, that members with remediable service are able to choose whether to receive new scheme benefits or legacy scheme benefits when calculating the transfer value.
182. Section 21(1)(b) to (1)(d) therefore provides for scheme regulations to make provision about transfers into the scheme in respect of rights in relation to remediable service in another public service pension scheme.
183. Section 21(1)(e) allows schemes to make equivalent provision for other transfers into a Chapter 1 scheme made during the period between 1 April 2015 and 31 March 2022. In such cases, the transfer will not have included rights in relation to remediable service (i.e. to which the member had a choice of benefits), but this section will allow for scheme to provide rights, for example, in the legacy scheme rather than the new scheme where the transfer was originally received in the new scheme, or to vary the rights to reflect a member’s decision under section 6 or 10.
184. Section 21(2) provides for scheme regulations to vary the benefits arising in a legacy scheme from a transfer under section 21(1)(b) to (e) where an election for new scheme benefits is made under section 6 or 10. Section 21(3) provides that the rights may be varied so that they are of equivalent value to rights that would have been secured under another Chapter 1 scheme.
185. Section 21(4) envisages that scheme regulations may provide for any rights to benefits that would otherwise have been secured by the transfer in to be extinguished. Section 21(5) provides that where such provision is made, scheme regulations must provide for alternative benefits to be awarded in a Chapter 1 scheme. There are two permitted options: benefits of an actuarially equivalent value to the extinguished rights; or benefits that are the same as the benefits that would have arisen had the transfer in been made to that scheme.
186. Public service pension schemes and some public body pension schemes participate in an arrangement known as the Public Sector Transfer Club (the Club). The Club is concerned with the portability of pension rights in the public sector and provides that a transfer between the participating schemes is carried out on the basis that the member will receive equivalent benefits in the receiving scheme (provided the transfer is made within specified time limits). Where a member transfers remediable service from a public service pension scheme into another public service pension scheme on the Club terms, the policy is that they will continue to receive a choice of whether to receive legacy scheme benefits or new scheme benefits in the receiving scheme. The scheme will therefore calculate two separate transfers: the rights arising from the transfer of rights relating to legacy scheme benefits in relation to remediable service from the exporting scheme and those relating to rights in relation to new scheme benefits in relation to remediable service. The member will then receive legacy scheme benefits or new scheme benefits in relation to the transfer in line with any election under section 6 or 10.

Section 22: Further powers to make provision about special cases

187. This section provides that scheme regulations may make further provision about a number of areas in relation to members’ remediable service.
188. Section 22(2) provides a non-exhaustive list containing specific examples of the types of provision that scheme regulations may need to make. For example, provision in relation to a member with mixed service (i.e. a member who had tapered protection), who has a period of service that entitles them to receive benefits under more than one Chapter 1 scheme, or who had a right under a Chapter 1 new scheme to buy-out an actuarial reduction to their pension benefits that would otherwise apply if they retired before the scheme normal retirement age, or who is partially retired. Section 22(6) describes the broad variety of provision that may be made under section 22, or under section 19, 20, 21.
189. Section 22(2)(e) allows scheme regulations made under section 22 to make provision about the benefits payable where a member dies, in respect of surviving children who do not live in the same household as a surviving adult. This will allow schemes to deliver the policy set out in the Government’s consultation and consultation response, which set out that where a member has died and a child pension is already in payment which would otherwise be impacted by a decision taken by someone outside the child’s household, that pension will be protected. Section 22(2)(f) and (g) enables provision to be made in scheme regulations about cases in which a person has remediable service as a teacher which is excess teacher service or cases in which a person has pensionable service as a teacher which takes place in the remedy period but is not remediable service (i.e. teachers who would not be eligible to join the LGPS because there was no existing relationship between the LGPS and the employer). Section 22(2)(h) allows scheme regulations made under section 22 to make provision for cases in which a member has a Partnership Pension Account. Section 5 of the Bill already provides for members of the civil service, who opted to have a Partnership Pension Account, to be able to be reinstated to the appropriate legacy scheme where they wish, and meet any criteria that may be specified in scheme regulations. However, there may be cases where that is not possible, for example where the member has died. This provision therefore provides schemes with powers to make provision to take a different approach where needed to provide a remedy in such cases. Section 22(2)(i) allows scheme regulations made under section 22 to make provision for cases in which a person who has remediable service is made redundant. This will ensure that schemes are able to make provision for a member to make their deferred choice to receive new scheme benefits at the time their employment ends. This approach will be needed in cases where the member’s redundancy payment is calculated by reference to the pension scheme in which they have remediable service, which is the case for example in the Armed Forces.
190. Section 22(2)(j) provides that schemes can make appropriate provision for cases where the administrator of a Chapter 1 scheme pays a member’s liability to a lifetime allowance charge, or an annual allowance charge and the member’s benefits are reduced in consequence. Schemes will, for example, be able to make provision to adjust a reduction of member benefits that was applied previously where the member’s liability to a charge changes as a consequence of the remedy provided under Chapter 1. Section 22(2)(k) allows provision to be made about cases in which a person’s remuneration may be determined by reference to whether their service is, or is eligible to be, pensionable service under a Chapter 1 scheme. Section 22(2)(l) enables provision to be made in relation to members of the armed forces who would be entitled to an incapacity lump sum under the new armed forces pension scheme, even if they would not have been entitled to such a payment under the rules of the legacy scheme.
191. Section 22(3) provides that scheme regulations for a Chapter 1 new scheme may make provision about injury and compensation benefits payable to or in respect of a member with remediable service. Section 22(4) allows such provision to be made in particular by amending the relevant injury or compensation scheme and section 22(5) defines which schemes and benefits are in scope of the power. Where Chapter 1 of Part 1 retrospectively alters pension benefits payable to or in respect of a person, this may require retrospective changes also to be made to the injury or compensation benefits to which the person is entitled (for example where their injury or compensation benefits amount is calculated in a way that takes account of the amount of pension benefits payable).

Section 23: Power to pay compensation

192. This section provides for scheme managers to pay compensation in respect of any losses incurred by a member or, in the case of deceased members, their representatives, as a result of the discrimination that arose or the remedy under this Act. Section 23(2) allows schemes to make regulations for an employer to reimburse amounts paid out by a scheme manager under section 23(1).
193. Section 23(3) defines the instances where a loss in this section is compensatable. A compensatable loss is one that meets any of the three conditions set out at section 23(4) to 23(6) and is of a description specified in Treasury directions.
194. The first condition is that the loss is attributable to, or is reasonably regarded as attributable to, a relevant breach of a non-discrimination rule. The second condition is that the loss is attributable to the application of any provision of, or made under, Chapter 1. Both these losses can include ‘Part 4 tax losses’ – see section 23(8) and 23(9). The third condition refers to a specific situation where new scheme benefits are chosen in the context of pensioner and deceased members. The third condition applies where the member is a relevant member and the loss is a "Part 4 tax loss" (see section 23(9)) that is attributable to the value of rights in respect of the remediable service under a Chapter 1 new scheme.
195. Section 23(7) defines a relevant member and section 23(8) specifies that, in this section, a "loss" includes a loss of any kind, in particular, a Part 4 tax loss.
196. Section 23(9) defines a "Part 4 tax loss" as a loss arising as a result of the member either incurring a charge, or incurring an increased charge, under Part 4 of Finance Act 2004 or not being entitled to a relief, or being entitled to less relief, under that Part of that Act. This ensures that compensation can be paid in respect of members where HMRC’s statutory time limits do not allow for correction of the amount of tax paid.
197. Section 23(10) sets out that a loss does not include an amount that is already payable under Chapter 1 or under any other regulations made by virtue of the Chapter. Section 23(13) ensures that compensation in respect of losses is not paid in relation to members where they or their personal representatives have already received compensation through an order of a court or tribunal or otherwise.

Section 24: Indirect compensation

198. This section allows scheme managers to give members entitlements to additional benefits where the member may not have been able to access the compensation scheme.
199. This is to allow schemes to increase people's benefits when they retire instead of providing compensation. There may be instances where the member has paid a tax charge using "scheme pays", where the amount of benefits they would have received is reduced at retirement. This allows those benefits to be reinstated where there is equivalent amount of compensation entitlement.

Section 25: Remedial arrangements to pay voluntary contributions to legacy schemes

200. This section provides that scheme regulations for a Chapter 1 legacy scheme may make provision giving members with remediable service the facility to enter into new arrangements to pay voluntary contributions.
201. Section 25(2) sets out that provision may be made in relation to members, other than deceased members, who have remediable service.
202. Section 25(3) provides that scheme regulations may permit a member to enter into new arrangements to pay voluntary contributions only if they can show that it is more likely than not that they would have entered into similar arrangements, but for the unlawful discrimination.
203. Section 25(4) allows for the provision made under scheme regulations, in particular, to adjust the amount of member voluntary contributions that are due under a new arrangement to reflect the tax treatment of those contributions. This is to allow for members to be charged an amount that is equivalent to the net amount that they would have paid had the contributions instead been made during their remediable service, reflecting the fact that they may not be eligible to receive tax relief on the voluntary contributions paid under a new arrangement.
204. Section 25(6) prevents scheme regulations from permitting members to enter into new voluntary contribution arrangements after one year from the date a remediable service statement is first provided in relation to the member, or such later time as the scheme manager considers reasonable in all the circumstances.
205. Section 25(7) confirms that the time limit in section 25(6) does not affect the continued operation after that time of any remedial arrangements entered into before then.

Section 26: Interest and process

206. This section provides that scheme regulations may make provision about how interest is calculated and paid on amounts that are owed by a person to the scheme or by the scheme to a person, and about the process by which amounts owed are paid. This is to ensure that members who have underpaid their contributions are not placed in an advantageous position compared to their comparators in the scheme who have been paying the correct level of contributions throughout, so would not have had the benefit of the additional money over time. Similarly, interest will be paid on amounts owed to members by the scheme where they would have been received in previous periods or amounts owed to the scheme in relation to overpayments made in previous periods.
207. Section 26(2) envisages that provision could be made about matters such as providing for amounts to be repaid by instalments, netting off amounts owed to a person against amounts owed by a person and conferring rights of appeal against a decision taken under the regulations.

Section 27: Treasury directions

208. This section details the specific powers outlined in the Act which must be exercised in accordance with Treasury Directions. For devolved schemes in Northern Ireland, Directions will be given by the Department of Finance as explained by the definition of ‘Treasury directions’ in section 38(1). Respondents to the Government’s consultation on changes to implement a remedy for public service pensions were supportive of central direction to ensure consistency across and within schemes in the way the remedy is implemented.
209. Section 27(4) provides that the Treasury directions relating to the calculation and payment of interest may only be made may only be made after consultation with the Government Actuary.

Section 28: Scheme rules that prohibit unauthorised payments

210. This section is designed to override any scheme rules that prevent an unauthorised payment being made where such a payment is permitted or required by this Act, where Treasury directions so provide. For example, schemes may be required to make payments in respect of underpaid lump sum benefits by virtue of section 13 that could be unauthorised payments due to the passage of time between the original lump sum being paid and the further payment.

Section 29: Remediable service statements

211. This section provides that legacy scheme regulations must make provision requiring the scheme manager to provide information in respect of each member with remediable service about the legacy scheme benefits and the benefits that would be available under the scheme in respect of the member’s remediable service were an election under section 5, 6 or 10 to be made. Information must also be provided to enable the recipient to decide whether they are entitled to enter new arrangements to pay voluntary contributions to a Chapter 1 legacy scheme. This information will enable members to make an informed decision about whether to elect to retain legacy scheme benefits, receive new scheme benefits, or opt in to receive benefits in respect of their remediable service, or whether they wish to enter an arrangement to pay voluntary contributions.
212. Section 29(3) and 29(4) state the necessary conditions for such information to be provided in respect of a member.
213. Section 29(5) sets out certain things which a remediable service statement must include.
214. Section 29(6) provides that Treasury directions (as defined in section 38(1)) may set further requirements about remediable service statements. Treasury directions may require certain information to be included in a remediable service statement, the form it is to take, how and to whom it is to be provided, and whether it is to be included with or provided alongside a member’s annual benefit statement.
215. Section 29(7) to (10) requires remediable service statements to be provided on or before the day after the final day of the period of 18 months beginning on the day on which section 2(1) comes into force (or such later day as the scheme manager considers reasonable), and then annually for active members. After the initial statement, deferred members may once in each 12-month period request to receive a remediable service statement. This is consistent with the requirements placed on schemes by the Pensions Act 1995 in relation to annual benefit statements.
216. Section 29(11) confirms that schemes may comply with their obligation to provide a remediable service statement before the coming into force of this section or any other provision of this Chapter.

Section 30: Section 61 of the Equality Act 2010 etc

217. This section disapplies section 61 of the Equality Act 2010 (and the equivalent provision in Northern Ireland) for the purposes of determining whether a member’s remediable service is pensionable in a new or legacy scheme. The Act provides a remedy for the discrimination that arose in public service pension schemes. In doing so, it directly determines which scheme a person is a member of in relation to their remediable service. This provision will prevent any inconsistency in interpretation or application between section 61 of the Equality Act 2010 and the provisions contained in or made under this Act. As set out in section 31(1), this section does not apply in relation to a person’s remediable service in an employment of office if an immediate detriment remedy has been obtained in relation to the service, in order to ensure the Act does not override or interfere with any remedy already provided under section 61 of the Equality Act, except to the extent that provisions are necessary to ensure consistent treatment. 2

Section 31: Application of Chapter to immediate detriment cases

218. This section sets out how Chapter 1 applies in relation to a person’s remediable service in an employment or office if an immediate detriment remedy has been obtained in relation to the service. In some cases, either a full or partial remedy may have been obtained for the discrimination identified by the Court of Appeal, prior to this Act and scheme regulations coming into force. Accordingly, the policy intention is to ensure that the remedy that those in this position have already received is respected, and appropriate alternative provision may be made by scheme regulations to address their individual circumstances in order to ensure that the discrimination is rectified. In particular, the intention is to ensure that these persons are not compensated twice, that the Act does not override any prior court or tribunal orders, and that there is provision for scheme regulations to make provision to correct or ‘top up’ any aspects of the remedy already provided to ensure consistent and fair treatment. 
219. Section 31(1) sets out that sections 2 to 30 do not automatically apply in relation to a person’s remediable service in an employment of office if an immediate detriment remedy has been obtained in relation to the service. This is to ensure that the immediate detriment remedy that has been obtained is not undermined – for example by granting a second opportunity to make an election - and that the Act does not override any prior court or tribunal orders, or any prior agreement between the scheme manager and another person. Section 31(1) does not carve out section 1 of the Act. This is so that relevant service counts as remediable service where this is necessary.
220. Section 31(2) sets out that scheme regulations may make provision for those who have rights in respect of remediable service in relation to which an immediate detriment remedy has been obtained, in order to put them, so far as possible, in the position that they would have been in if there had been no relevant breach of a non-discrimination rule in relation to their service.
221. Section 31(3) sets out that these provisions may include provisions to apply any of sections 2 to 30 of the Act, or to make equivalent provisions in scheme regulations, either with or without modifications. The purpose of this is to allow scheme regulations to apply particular provisions of the Act to persons who have rights in respect of remediable service in relation to which an immediate detriment remedy has been obtained, to rectify the discrimination. In some cases, achieving that may require a provision that differs from the provisions in the Act for persons with remediable service where an immediate detriment remedy has not been obtained and this section, together with the broader power contained in section 31(2), is intended to allow for that.
222. Section 31(4) sets out that for the purposes of this chapter a "non-discrimination rule" is a rule that was included in a Chapter 1 legacy scheme as a result of (a) either section 61 of the Equality Act 2010, or (b) paragraph 2 of Schedule 1 to EEAR(NI) 2006 Employment Equality (Age) Regulations (Northern Ireland) 2006.
223. Section 31(5) sets out that a relevant breach of that rule is one that arises from the application of "transitional protection" or "tapered protection" made under section 18 of PSPA 2013 or section 18 of PSPA(NI) 2014.

Section 32: Whether an "immediate detriment remedy" has been obtained

224. This section defines whether an immediate detriment remedy has been obtained under section 61 of the Equality Act 2010 or paragraph 2 of Schedule 1 to the EEAR(NI) 2006 in respect of a person’s remediable service in an employment or office. This is where either full or partial remedy for the discrimination identified by the Court of Appeal has been obtained prior to this Act and scheme regulations coming into force in relation to their scheme.
225. Section 32(2) sets out that an immediate detriment remedy has been obtained in relation to a person’s remediable service in an employment or office if a court or tribunal has determined that, as a result of a non-discrimination rule, any person has any rights under a Chapter 1 scheme in respect of the remediable service, and the scheme manager has paid pension benefits or compensation in accordance with the determination, or has taken any other step to implement the determination.
226. Section 32(3) sets out that an immediate detriment remedy has been obtained in relation to a person’s remediable service in an employment or office if there has been an agreement between any person and the scheme manager of a Chapter 1 scheme that, as a result of the non-discrimination rule, the person has any rights under a Chapter 1 scheme in respect of the remediable service, and the scheme manager has paid benefits or compensation in accordance with the agreement, or has taken any other step to implement the agreement.

Section 33: Meaning of "Chapter 1 scheme" etc

227. This section contains the definitions of "Chapter 1 scheme", "Chapter 1 new scheme" and "Chapter 1 legacy scheme".
228. Section 33(2) provides the definition of a Chapter 1 new scheme by reference to section 1 of PSPA 2013 or section 1 of PSPA(NI) 2014 and does not include a scheme for local government workers or a scheme for holders of a judicial office.
229. Section 33(3) defines a Chapter 1 legacy scheme by reference to PSPA 2013 or PSPA(NI) 2014 (that is not a judicial or local government scheme).

Section 34: Meaning of "new scheme benefits"

230. This section defines "new scheme benefits" for remediable service for this Chapter.
231. Where a member has remediable service and elects to receive new scheme benefits, they are entitled to receive benefits that are the same as those that would have been payable in relation to that service had they been a member of the new scheme. For example, where a member with remediable service retires at age 64 they would be entitled, if they elect for new scheme benefits, to receive the same benefits in relation to that service as would have been paid from the new scheme at that time (with a fair adjustment to reflect the fact they were being paid before the member’s NPA if that is higher than age 64 in the new scheme). Where a member with remediable service retires and elects for new scheme benefits, but would not have been entitled to the immediate payment of new scheme benefits at that time (for example, where they retired before the new scheme minimum pension age) but would be entitled to a deferred new scheme pension instead, then they would be entitled to a benefit equal to that deferred benefit.
232. Where benefits are paid in relation to remediable service, they are paid from the legacy scheme regardless of whether a member makes an election for new scheme benefits or not.

Section 35: Meaning of "legacy scheme contributions" and "new scheme contributions"

233. This section defines legacy scheme contributions and new scheme contributions in relation to a member’s remediable service. This is relevant to sections 15, 16 and 17, which are concerned with the correction of overpaid and underpaid contributions.
234. Section 35(2) defines legacy scheme contributions as pension contributions payable by the member under the relevant Chapter 1 legacy scheme as if the service had, at the time it took place, been pensionable under that scheme.
235. Section 35(3) defines new scheme contributions as pension contributions payable by the member under the relevant Chapter 1 new scheme as if the service had, at the time it took place, been pensionable under that scheme.

Section 36: Meaning of "opted-out service"

236. This section defines the term "opted-out service" as referring to service in which the conditions described in section 1 are met but for the second condition, which would have been met had the person not opted-out of the pension scheme:
     1. that the service relates to a period when the discrimination arose;
     2. that the member was eligible for transitional protection or would have been eligible for transitional protection but for the discriminatory requirement in the schemes;
     3. that the member was on or before 31 March 2012 a member of a legacy scheme, or in the case of certain schemes for firefighters, eligible to be a member of such a scheme; and
     4. that the member does not have a disqualifying break in service falling within the period set out in section 1(6).
237. Section 36(2) also covers partnership pension accounts, a specific Civil Service defined contribution scheme which members may have elected to join instead of accruing Chapter 1 scheme benefits.

Section 37: Scheme regulations

238. The definition of "scheme regulations" is contained in this section. This section clarifies that the definition for scheme regulations is the same as it is in the PSPA 2013 and PSPA(NI) 2014, where scheme regulations made under s.1(4) of those Acts established the Chapter 1 new schemes and made related provision.
239. Section 37(2) confirms that, where Chapter 1 of the Act grants a power to make provision by means of "scheme regulations for a Chapter 1 legacy scheme", that means that the power is to be exercised by the responsible authority for the Chapter 1 new scheme that is connected with the Chapter 1 legacy scheme. The responsible authority may exercise that power by amending the Chapter 1 legacy scheme in the scheme regulations. Accordingly, the policy intention is that the responsible authorities for the Chapter 1 new schemes may use scheme regulations (as defined in s.1(4) PSPA 2013 and s.1(4) PSPA(NI) 2014) to exercise the powers contained in the Act, and may use those scheme regulations to make the necessary amendments to both the new schemes and the legacy schemes within the same statutory instrument (i.e. the scheme regulations).
240. Section 37(3) contains the definition of "responsible authority", which has the same meaning as in the PSPA 2013 and PSPA(NI) 2014.

Section 38: Interpretation of Chapter

241. This section provides the definitions for terms found in this Chapter.

Chapter 2: Judicial Schemes

Section 39: Meaning of "remediable service"

242. This section is the judicial scheme equivalent of section 1. It defines "remediable service" and sets out five conditions to establish whether a member’s period of service is eligible for being in scope of the legislation:
     1. first, that the remedy period service takes place at a period beginning with 1 April 2015 and ending on 31 March 2022;
     2. second, that the service was pensionable service under a judicial scheme. Section 39(4)(b) clarifies that service is "pensionable service under a judicial scheme" even where a judge opted out of the 2015 reformed scheme;
     3. third, that the member was in pensionable public service before 31 March 2012;
     4. fourth, that the member has not had a "disqualifying gap" in service (see section 39(9)); and
     5. fifth, that the member is under 55 on 1 April 2012. This is because "protected" members, who never left the legacy scheme because they were over 55 on 1 April 2012, are not in scope of the remedy.
243. Judges were able to opt out of the 2015 reformed scheme and instead join a partnership pension account ("PPA") – a registered stakeholder pension scheme. As a member of the PPA, a judge holds an account with a nominated third-party provider (Prudential plc) into which the member and the "employer" pay contributions. Section 39(8) ensures that, for those who opted for PPA, that time as a PPA member counts as "remediable service" in the same way that those who opted out of judicial pension altogether qualify for the remedy (section 39(4)(b)).
244. Section 39(9) excludes those with a gap in pensionable public service of more than five years (who would otherwise be in scope) from the remedy.
245. Section 39(10) states that the effect of section 61 Equality Act 2010 and paragraph 2 of Schedule 1 to the Employment Equality (Age) Regulations (Northern Ireland) 2006 (non-discrimination rule) and sections 2, 42 and 45 of this Act (under which service may be treated as pensionable, or not pensionable) are to be disregarded for determining pensionable service under a particular scheme. This is intended to ensure that these provisions, which might otherwise have shifted people into different schemes, are disregarded for the purposes of determining which scheme a judge’s service is in.

Section 40: Legacy scheme elections

246. This section sets out how a legacy scheme election is made.
247. Section 40(1) provides that a legacy scheme election may be made if a judge has remediable service (as defined in section 39) and has not made a 2015 scheme election. A judge with salaried remediable service in the PPA may not make a legacy scheme election if they have not complied with the requirement in section 41 regarding the transfer and surrender of their PPA rights. In the case where a judge is deceased see section 46 for who can make the election.
248. Section 40(4) sets out how and when a legacy scheme election is to be made and provides that such an election is irrevocable. Section 40(5) provides that an election takes place at the end of the election period or, in the case of a judge with salaried remediable service in the PPA, after the requirement to transfer and surrender rights under section 41, if later.

Section 41: Partnership pension account: requirement to transfer and surrender rights

249. Section 41(1) addresses the position of judges with salaried remediable service in the PPA. While these judges are entitled to full legacy scheme benefits, provision is needed to ensure that they do not receive double compensation. This is achieved by requiring a transfer of PPA assets to their legacy schemes.
250. Section 41(2) and 41(3) require that, before making a legacy scheme election, a PPA judge (or, if they are deceased, the person by whom a legacy scheme election may be made) must notify the scheme of their intention to instigate and facilitate steps to (a) transfer any relevant PPA assets and liabilities to the legacy scheme and (b) surrender any entitlement to a pension that would otherwise arise in respect of these assets.
251. Section (41)(c) also requires that where a transfer of any relevant assets or liabilities from the PPA (otherwise than in the course of a transfer to the relevant judicial legacy scheme) has already been made, an amount equivalent to the transfer out must be paid by the appropriate person. Given the potential complexity arising in respect of transfers, the amount to be paid is to be determined by the relevant authority, after consulting the Government Actuary.
252. Section 41(4) to 41(6) apply the same requirements as section 41(1) to 41(3) but where a person has remediable service in a fee-paid rather than salaried judicial office.
253. Section 41(8) to 41(10) provide that PPA "assets and liabilities" are referable to the contributions made by or on behalf of the judge in respect of their service. This includes mandatory and voluntary contributions made by the judge to the PPA up to the net value of contributions that would have been payable to the judge’s legacy scheme. Assets and liabilities referable to any excess contributions do not need to be transferred to the judicial legacy scheme. The value of the excess is to be determined by the relevant authority, after consultation with the Government Actuary.

Section 42: Legacy scheme elections: effect

254. Section 42(1) to 42(5) provide that, when a person elects legacy scheme membership, any remediable service in the 2015 scheme, or remediable service where a judge opted out of a judicial pension, will be treated as pensionable service under the relevant judicial legacy scheme (either the fee-paid scheme or the appropriate salaried scheme). Consequently, any service previously in the 2015 scheme will be extinguished (although see section 42(7)).
255. Section 42(6) provides that the effect of making a legacy scheme election is that individuals’ pensionable service will be treated as if it had always been in the legacy scheme for the purposes of determining pension benefits and pension contributions and (unless provided for otherwise) for all other purposes.
256. Section 42(7) permits a person to make a legacy scheme election while being able to retain certain member rights in the 2015 scheme, such as transfers of external pension benefits or added pension.

Section 43: Meaning of "the relevant judicial legacy salaried scheme"

257. Where a person elects legacy scheme benefits, this section defines the relevant salaried scheme as the scheme of which they were a member most recently before 1 April 2015. Where a judge was not a member of a scheme on that date, the relevant salaried scheme is JUPRA.

Section 44: 2015 scheme elections

258. This section sets out how a 2015 scheme election is made.
259. Section 44(1) provides that a 2015 scheme election may be made if a judge has remediable service (as defined in section 39) in a judicial office. Section 44(2)(a) and 44(4) provide that a 2015 scheme election may not be made if a judge previously opted out of the 2015 scheme (since they already had the option to join the scheme). There is an exception for judges who opted out to join the PPA scheme provided part of their remediable service has been in a judicial legacy scheme.
260. Section 44(2)(b) provides that an individual who has made a legacy scheme election cannot make a 2015 scheme election. In the case where a judge is deceased see section 46 for who can make the election.
261. Section 44(3) provides for how and when the election is made. It also provides that the election takes effect at the end of the election period, and that such an election is irrevocable.

Section 45: 2015 scheme elections: effect

262. Section 45(1) and 45(2) provide that, where a person makes a 2015 scheme election, any remediable service in the legacy scheme (whether salaried or fee-paid) will be treated as pensionable service under the relevant 2015 scheme and as having never been under the judicial legacy scheme.
263. Section 45(3) defines "relevant 2015 scheme". Reformed (post 2015 reform) pensions for devolved Northern Irish judges are provided for by Northern Irish legislation (unlike the legacy schemes where pension for these judges was provided by UK legislation), hence the need for section 45(3)(b).
264. Section 45(4) explains that the effect of making a 2015 scheme election is that individuals’ pensionable service will be treated as if it had always been in the 2015 scheme for the purposes of determining pension benefits and pension contributions and (unless provided for otherwise) for all other purposes.

Section 46: Person by whom election is to be made

265. Section 46(1) provides that the election of scheme membership is ordinarily to be made by the judge. Where the judge is deceased, the adult survivor or (if there is none) personal representatives would make the election.
266. Section 46(2) and 46(3) define adult survivor as a surviving spouse, civil partner or other adult entitled to a pension under the judicial scheme under which the deceased judge most recently accrued pensionable service.

Section 47: Cases in which 2015 scheme election treated as made

267. For most members, if they do not make an election, they will retain their current rights. However, those with "tapered-protection" (referred to as "mixed service" in the Act) with rights in both the legacy and reformed schemes, will not be able to retain this mix of rights but will need to choose legacy or reformed scheme rights for the entire remedy period. (The effect of McCloud is that tapered protection was discriminatory and that such discrimination was unlawful.)
268. If they do not make an election, section 47(2) sets out the default position: they will be considered to have made a 2015 scheme election.
269. Section 47(3) defines "mixed service". A person has mixed service if they have pensionable service under both the legacy scheme and either the 2015 scheme or PPA (or a mix of both).

Section 48: Benefits for children where election made

270. In some cases, there may be a conflict between the interests of potential beneficiaries because of the different entitlements under the legacy and 2015 reformed schemes.
271. In the case where an adult beneficiary and a child beneficiary reside in separate households this section provides that the child is entitled to receive the more favourable pension, looked at in the round, regardless of the choice made by the surviving adult.

Section 49: Effect of elections on benefits previously paid or payable

272. Section 49(1) to 49(4) deem that, where a person has made a legacy scheme election, any benefits received from a 2015 scheme are to be treated as having been paid on a year by year basis from their legacy scheme. Section 49(1) and 49(2) apply to the salaried judicial legacy scheme; 49(3) and 49(4) apply to the fee-paid judicial legacy scheme.
273. Section 49(5) to 49(7) deem that, where a person has made a 2015 scheme election, any benefits paid from their legacy scheme are to be treated as having been paid on a year by year basis from the 2015 scheme.
274. Where, as a result of this section, the scheme owes a person a shortfall in benefits (or vice versa where there has been an overpayment to a person), this is to be paid in line with the steps set out in section 51.

Section 50: Effect of elections on pension contributions previously paid or payable

275. Section 50(1) to 50(4) deem that, where a person has made a legacy scheme election, any contributions made to a 2015 scheme are to be treated as having been made on a year by year basis to their legacy scheme. Section 50(1) and 50(2) apply to the salaried judicial legacy scheme; section 50(3) and 50(4) apply to the fee-paid judicial legacy scheme.
276. Section 50(5) to 50(7) deem that, where person has made a 2015 scheme election, any contributions made to their legacy scheme are to be treated as having been made on a year by year basis to the 2015 scheme.
277. Where, as a result of this section, the scheme owes a person a refund of excess contributions (or vice versa where there is a contributions shortfall), this is to be paid in line with the steps set out in section 52.

Section 51: Pension benefits and lump sums benefits

278. This section applies where pension and lump sums benefits have already been paid from the ‘wrong’ scheme (i.e. there has been an election for different scheme membership after benefits have begun to be paid from the judicial pension scheme).
279. Section 51(2) and 51(3) apply to pension benefits: 51(2) sets out that where the amount paid by the ‘wrong’ scheme exceeds the amount that should have been paid by the scheme of which the judges is now considered to have been a member (as a result of an election, or in respect of, the judge), the difference must be paid to the scheme; 51(3) sets out where the amount received from the ‘wrong’ scheme is less than would have been received, the scheme must pay the difference.
280. Section 51(4) and 51(5) apply the same principles to lump sum benefits.
281. Section 51(6) ensures that where a death lump sum has been paid to a PPA member, and a legacy scheme election is made in respect of the late member, the PPA death lump sum will be treated as having been paid under the relevant legacy scheme.
282. Similarly, section 51(7) deals with judicial service awards (JSA) that have been paid from the legacy scheme to a member who subsequently makes a 2015 scheme election. Where that arises, the JSA is to be treated as a lump sum paid from the 2015 scheme.

Section 52: Pension contributions

283. This section sets out the treatment of pension contributions already made that, as a result of previous sections, are to be treated as having been made on a year by year basis to the elected scheme. The tax consequences of earlier sections (see 42(6)(c) to(d) and 45(4)(c) to (d)) and 50(2) and 50(4) are that, where those who were previously members of the 2015 scheme elect the legacy scheme, they will owe tax to HMRC. This is because they received tax relief on their 2015 scheme contributions whereas tax relief is not available on their legacy scheme contributions.
284. The effect of section 52(2) is that where a judge has overpaid contributions, the scheme must refund this if the excess falls in a tax year in which HMRC can enforce Pay As You Earn (PAYE) corrections (in most cases only the tax year in which the choice is made, and four full preceding years).
285. Because judges will not need to pay underpaid tax in years that HMRC is unable to enforce the PAYE correction, the Act provides that the scheme will not refund excess contributions for these years, i.e. the historic contributions position will be preserved (see section 52(3)).
286. Section 52(4) requires the judge, or if the judge is deceased, their personal representatives, to pay any shortfall in contributions to the scheme.
287. Section 52(5) and (6) explain how to calculate the amount of contributions that have been paid and the amount of contributions that are payable. Section 52(5) clarifies that in calculating the contributions that have been paid, account is taken of both mandatory and voluntary contributions made by the judge to the PPA up to the level of contributions that would have been payable to the judge’s legacy scheme. Section 52(6) provides that the value of member contributions to the PPA for – for the purpose of, this section means an amount less any tax relief that was received on them.

Section 53: Effective pension age payments

288. Under the 2015 scheme, the effective pension age (EPA) option enables contributions to be paid to secure a lower pension age than Normal Pension Age (but no lower than 65). Since the pension age in legacy schemes is 65, such contributions are of no benefit to a person electing to return to their legacy scheme.
289. The effect of this section is that where a judge has made EPA contributions and a legacy scheme election is made by or in respect of that judge, the judge (or if they are deceased, their personal representatives), must receive an amount by way of compensation equal to the value of the net contributions. Section 53(2) clarifies that any rights which would otherwise have been secured by the EPA payments are extinguished.

Section 54: Transitional protection allowance

290. When the 2015 scheme was introduced, judges who satisfied certain criteria were given a one-off option to opt out of the pension scheme and instead receive an allowance known as transitional protection allowance (TPA) (representing in monetary terms the ‘actual’ employer contribution that would otherwise have been paid to the pension scheme).
291. This section requires that if a judge who received TPA wishes to make a legacy scheme election, they, or if they are deceased, their personal representatives, must repay the amount of the TPA payment less the tax paid on the amount.

Section 55: Power to reduce benefits in lieu of paying liabilities owed to scheme

292. This section provides for scheme regulations which may reduce an amount owed by a person under Chapter 2 of the Act, by instead reducing the benefits payable to or in respect of that person under the scheme.
293. Section 55(2) provides that where a person’s pension scheme benefits are so reduced in respect of an amount owed to the person’s "employer", scheme regulations may require the scheme to reimburse the "employer".

Section 56: Powers to reduce or waive liabilities

294. Section 56(1) provides for scheme regulations which may reduce or waive an amount owed by a person under section 51. This is needed where, for example, a pensioner member’s benefits have been overpaid as a result of electing different scheme membership. Where repaying these overpaid amounts would cause particular difficulties or hardship for the member, scheme regulations may provide for some or all of that amount to be written off.
295. Section 56(2) to 56(4) apply the principle to contributions owed under section 52, for example allowing the scheme to reduce a contribution shortfall to take account of the fact that the judge would have received tax relief on the contributions if they had actually been paid at the relevant time. This scenario will arise where tapered judges elect 2015 scheme benefits for the whole remedy period. Because they will be unable to receive tax relief on all their contributions, regulations may enable schemes to reduce the obligation to pay the contribution by the amount of tax relief lost, ensuring the judges are not left worse off as a result.

Section 57: Pension credit members

296. This section refers to divorced members where a pension sharing order has been made in respect of a public service pension as part of the financial settlement. Scheme regulations may make provision about the benefits payable to the potential pension credit member and the pension debit member.
297. Section 57(4) provides a power for scheme regulations to adjust the pension credit with the aim of providing the most valuable benefits to the pension credit member.
298. Section 57(5) addresses the position of pension debit members who may have a combination of 2015 and legacy scheme benefits. Scheme regulations must provide that pension credit members retain benefits based on either the legacy scheme or the 2015 scheme benefits but not a mix of both. This is consistent with the approach taken to mixed service generally (see section 47).
299. The section defines a pension credit member as a person in a scheme with rights attributable to a pension credit. This is because the judicial legacy scheme does not use the term pension credit member.

Section 58: Further powers to make provision about special cases

300. This section provides a power for scheme regulations to make provisions designed to respond to particular individual circumstances that arise as a result of adjusting a member’s service. For example, section 58(2)(a) permits regulations in respect of members’ additional voluntary contributions; and (c) does likewise for sums that have been transferred in from another pension scheme.

Section 59: Power to pay compensation

301. This section provides a power for scheme managers to pay members compensation in respect of losses incurred by members, or, in the case of deceased members, their personal representatives, either as a result of the scheme having breached a non-discrimination rule (by virtue of relevant equality legislation), or by application of any provisions of (or made under) this Chapter.
302. Section 59(3) requires compensation payments to be paid in accordance with Treasury directions.
303. Section 59(6) clarifies that "loss" includes, in particular, a Part 4 tax loss, as defined in section 59(7).

Section 60: Remedial arrangements to pay voluntary contributions to judicial schemes

304. This section makes it possible for scheme regulations to make provision giving judges with remediable service the facility to enter into new arrangements to pay voluntary contributions. The facility may only be made available for members who would have entered into similar arrangement but for the unlawful discrimination and may be made available only for a limited period or such later as the scheme manager considers reasonable in the circumstances.
305. It may be the case that a judge is not able to receive the full value of tax relief on their voluntary contributions that would have been available if they had been made at the relevant time (for example if the judge is now retired). Section 60(4) and (5), therefore provide that scheme regulations may reduce the amount of voluntary contributions payable by the amount of tax relief that would, but is not now, available.

Section 61: Interest and process

306. This section provides that scheme regulations may make provision for interest to be applied to relevant amount, including where a judge owes a sum to the scheme or "employer" and where the scheme owes sum to a judge.
307. Section 61(2) provides that regulations may make provision for: payments to be made via instalment plans; an application process to access certain payments; netting off arrangements; and conferring rights of appeal.

Section 62: Treasury directions

308. This section lists the regulation making powers in Chapter 2 which must be exercised in accordance with Treasury directions.

Section 63: Scheme rules that prohibit unauthorised payments

309. Under section 164 of the Finance Act 2004, registered pension schemes may only make payments to members of the types listed in that section. Where "unauthorised" payments are made, a tax charge applies. As it is possible that some of the payments that schemes are required to make to a member under Chapter 2 of this Act could be considered to be unauthorised and in breach of scheme rules, section 63(2) provides a power for the Treasury to set out in directions payments which would normally be unauthorised but, for the purposes of this Act, schemes are permitted to make.
310. Section 63(3) and (4) provide that a payment required in respect of a transfer from a PPA under section 41, which would otherwise be an unauthorised payment in breach of scheme rules, may also be made.

Section 64: Information statement

311. Section 64(1) requires that prior to a person making a scheme election, the relevant authority (as defined in section 72) must prepare an information statement and send it to the person.
312. According to section 64(3), the statement must contain a description of the benefits that would be available in respect of the judge’s remediable service in both the 2015 and legacy schemes, as well as other relevant information, for example a description of remedial voluntary contribution arrangements that may be made by the judge in accordance with section 60.

Section 65: Power to delegate

313. This section enables the Lord Chancellor and Northern Ireland Department of Justice to delegate any of their respective functions under Chapter 2 of the Act. 

Section 66: Section 61 of the Equality Act 2010 etc

314. This section removes the effect of the non-discrimination rule in section 61 of the Equality Act and paragraph 2 of Schedule 1 to EEAR(NI) 2006 when a pension scheme determines what pensionable service a member should have.
315. Section 66(2) provides that the non-discrimination rule ceases to have effect in relation to a person’s remediable service at the end of the election period.

Section 67: Application of Chapter to immediate detriment cases

316. Section 67(1) clarifies that section 40 to 66 do not apply where an "immediate detriment remedy" has been obtained. Section 68 sets out where an immediate detriment remedy has been obtained, including where an election for legacy scheme membership in respect of a judge’s remediable service has already been made and benefits or compensation have been paid out or steps such as changing pension scheme records have been taken. Where an immediate detriment remedy has been obtained, a subsequent election of scheme membership may not be made by or on behalf of the judge.
317. Section 67(2) and 67(3), however, permit scheme regulations to apply, with or without modification, any provisions of Chapter 2 to cases where an immediate detriment remedy has been obtained where it is required to return judges, or their beneficiaries, to the position they would have been in if there had not been a breach of the non-discrimination rule.

Section 68: Whether an "immediate detriment remedy" has been obtained

318. This section describes the conditions whereby an "immediate detriment remedy" has been obtained, including where their remediable service benefits or records have been adjusted by making an election or where a judge’s entitlement has been determined by a court or tribunal.

Section 69: Meaning of "the election period"

319. This section provides that the election period should last three months, from a date to be determined by the relevant authority. Provision is also made for the relevant authority to extend the period for a particular person where he or she considers it is just and equitable to do so.
320. The section also makes provision for there to be different "the elections periods" for different descriptions of judge.

Section 70: Meaning of "a judicial scheme" etc

321. This section defines "a judicial scheme" and "a judicial legacy scheme" by reference to the relevant judicial pension scheme legislation.

Section 71: Meaning of "judicial office" etc

322. This section defines "judicial office" by reference to the relevant legislation.

Section 72: Meaning of "the relevant authority"

323. This section defines the relevant authority as the Lord Chancellor or Department of Justice in Northern Ireland.

Section 73: Meaning of "opted-out service" and "PPA opted-out service"

324. Section 73(1) defines "opted-out service" by reference to the definition in section 36(4)(b).
325. Section 73(2) defines "PPA opted out service".

Section 74: Scheme regulations

326. This section defines "scheme regulations" as being scheme regulations under section 1(4) of the PSPA 2013 (or PSPA(NI) 2014). Section 74(2) provides that these scheme regulations may amend the judicial legacy schemes and are to be exercised by the responsible authority for the judicial 2015 scheme. This provision therefore clarifies how the broad range of amendments to both the judicial legacy and 2015 schemes are to be made.

Section 75: Interpretation of Chapter

327. This section defines terms used in the Chapter.

Section 76: Modifications of Chapter in relation to fee-paid judicial offices

328. This section ensures that fee-paid judges (and ex-fee-paid judges) can meet the conditions for their service in a fee-paid office to be considered "remediable service".

Chapter 3: Local Government Schemes

Section 77: Meaning of "remediable service"

329. This section is the equivalent of section 1 for the Local Government Pension Scheme (LGPS). It defines what service is in scope of being remedied through the legislation. A member has "remediable service" if certain conditions are met. Broadly, the conditions are that:
     1. the member has pensionable service under a local government new scheme between 31 March 2014 (31 March 2015 for the LGPS Scotland and Northern Ireland) and the earlier of their legacy scheme normal pension age and 31 March 2022; and
     2. that on or before 31 March 2012 the member was in pensionable service under a local government legacy scheme or other relevant public service pension scheme, and there is no disqualifying gap (more than five years) falling within the relevant service period, disregarding any period of time when a person was a member of a broadly comparable private sector scheme after being outsourced from their public sector employment.

Section 78: Power to pay final salary benefits

330. This section allows local government new scheme regulations to be made to provide that member benefits in relation to remediable service (as defined in section 77) are final salary benefits. This is the core power that will allow LGPS regulations to be amended to remove the discriminatory provisions, by giving younger qualifying members equivalent protection to their older colleagues. In this context, a final salary benefit broadly means that a benefit has been calculated by reference to a member’s pensionable earnings when a member’s pensionable service ends, or when the member would have attained their Normal Pension Age applicable to the local government legacy scheme (usually 65). Section 78(3) allows responsible authorities to make provision that a member may only have final salary benefits in respect of a period of service where they have aggregated or transferred previous pensionable service.

Section 79: Section 78: transitional provision

331. Section 79 provides for transitional provisions relating to section 78. In particular, this section ensures that local government transitional protection provisions made under PSPA 2013 or PSPA(NI) 2014, which could have been made under section 78, are treated as having been made under section 78. This ensures that transitional protection for all protected local government scheme members is treated as being provided for under this Act. Section 79(2) clarifies that this does not affect the continued operation of any scheme regulations made before section 78 comes into force.

Section 80: Pension credit members

332. Section 80 provides for scheme regulations to make provision regarding pension credit members. Pension sharing orders for divorces or dissolutions of civil partnerships generally award the member’s ex-spouse a percentage of the value of the pension at the time of the divorce. The value is expressed as a Cash Equivalent Transfer Value (CETV). The ex-spouse/civil partner then becomes a member of the pension scheme in their own right and is known as the pension credit member, with a pension equivalent to the credit. As a result of the remedy, it is possible that the value of the pension at the time of the divorce/dissolution would have been different had the member always been a member of the alternative scheme for the remedy period. This means that even if the percentage quoted in the pension sharing order remains the same, the actual amount credited to the pension credit member may have been different.
333. This power therefore enables the responsible authority for a local government new scheme to amend provisions to award any additional credit due to the pension credit member as a result of the remedy. However, it does not give schemes the power to amend the pension sharing order itself.
334. To ensure that this power is applied consistently with other public service pension schemes, section 85 requires the power to be exercised in accordance with Treasury directions.

Section 81: Further powers to make provision about special cases

335. Section 81 provides for scheme regulations to make provision regarding two types of special case.
336. The first enables scheme regulations to make provision about cases where a person has excess teacher service, as defined in section 110(2). Excess teacher service is service that is in excess of the maximum that could be accrued under a teachers’ Chapter 1 legacy scheme. Depending on the circumstances, that service may have been pensionable in a local government new scheme or in the teachers’ new scheme. To ensure a consistent approach to this group, section 4(4) provides that any remediable service which is excess teacher service should be pensionable in a local government new scheme, where members may be entitled to underpin protection, if applicable. Due to the unique circumstances in which these members have become eligible for membership of the local government new scheme and the complexities that may arise from their transition to the local government scheme, this section ensures that responsible authorities are able to make specific provision in scheme regulations relating to these members.
337. The second enables scheme regulations to make provision about injury and compensation schemes, in particular by amending the relevant injury and compensation scheme. Certain workforces provide injury and compensation schemes, which pay benefits to those who are injured whilst at work or carrying out their duties. These schemes are set out in Schedule 6 to the PSPA 2013 or Schedule 6 to PSPA(NI) 2014. The payments from injury and compensation schemes usually take into account any benefits payable from a connected pension scheme. The retrospective changes to a person’s pension made by scheme regulations under Chapter 3 may mean that an award from a connected injury or compensation scheme was wrong in so far as it took into account pension benefits that will be changed by the Act. The award may have been overpaid in previous years and will need to be adjusted in future, once the pension is revised. This section ensures that responsible authorities are able to make provision in scheme regulations for the connected scheme to take account of any change to pension benefits payable to a member, attributable to the application of Chapter 3.

Section 82: Power to pay compensation

338. Section 82 enables scheme regulations to make provision allowing scheme managers to pay compensation in respect of compensatable losses incurred by local government scheme members. Most compensatable losses would be for the schemes to pay –for example, where the loss is attributable to the value of pension rights payable from the scheme. Other losses would normally fall to the employer to pay – for example, losses attributable to a breach of the non-discrimination rule. The power at section 82(2) allows scheme regulations to make provision for a scheme employer to reimburse the scheme where it is considered that the employer rather than the pension scheme should meet the cost.

Section 83: Indirect compensation

339. There may be instances where, for example, a member has paid a tax charge using "scheme pays" which results in the amount of benefits they would have received being reduced at retirement. In such circumstances, section 83 provides a power for local government new scheme regulations to make provision so that scheme managers can give members entitlements to additional benefits instead of cash compensation. These additional benefits would be paid when the member retires.

Section 84: Interest and process

340. Where sums are owed to members, for example relating to past pension benefits, section 84 allows regulations to be made which will set out the process for such sums to be paid. As the remedy period could span eight years, interest would be added to amounts payable by schemes.
341. This power allows interest to be calculated and paid. Regulations under this section have to be exercised in accordance with Treasury directions and, in the case of regulations that relate to the calculation and payment of interest, following consultation with the Government Actuary (under section 85(1), (2)(f) and (4)).

Section 85: Treasury directions

342. Section 85 provides that the powers in relation to the matters covered in sections 80 to 84 must be exercised in accordance with Treasury directions. This ensures that, where Treasury ministers (or in relation to Northern Ireland, the Department of Finance), who are responsible for policy on public service pensions, consider that a consistent approach is necessary or desirable, the Treasury (or in relation to Northern Ireland the Department of Finance), may give directions to schemes.
343. Section 85(2)(a) is concerned with pension credit members. Section 85(2)(b) is concerned with special cases. Sections 85(2)(c), (d) and (e) are concerned with matters relating to payments made to members through direct or indirect compensation. Section 85(2)(f) relates to the power to make scheme regulations concerning interest to be calculated and paid on amounts owed to members.
344. The provisions in this section are consistent with the approach provided for in section 27 in respect of Chapter 1 schemes and ensure that the Treasury and the Department of Finance can provide for consistent approaches between schemes on similar issues.

Section 86: Meaning of "local government scheme" etc

345. This section contains relevant definitions for the terms used in this Chapter:

• a "local government scheme" is defined as either a local government "new" scheme or a local government "legacy" scheme;
• a "local government new scheme" means a scheme for local government workers established under section 1 of PSPA 2013 or PSPA (NI) 2014 – broadly, a career average scheme; and
• a "local government legacy scheme" means an existing scheme for local government workers mentioned in Schedule 5 of PSPA 2013 or PSPA (NI) 2014 – broadly, a final salary scheme.

Section 87: Interpretation of Chapter

346. Section 87 provides definitions for terms found in this Chapter.

Chapter 4: General

Section 88: Restriction of existing schemes

347. This section amends sections 18 and 31 of the PSPA 2013, and sections 18 and 32 of the Public Service Pensions Act (Northern Ireland) 2014 (PSPA(NI) 2014); it also makes consequential amendments to the Judicial Pensions and Retirement Act 1993 (JUPRA).
348. This section closes the legacy schemes to further accrual from 1 April 2022. All members of public service pension schemes from that date accrue pension benefits in a new scheme, subject to the narrow exceptions set out in section 89.
349. Section 88(2)(c) is the core operative provision and repeals sections 18(5) to 18(8) of the PSPA 2013. This section prospectively, with effect from 1 April 2022, removes the power for scheme regulations to make exceptions to section 18(1) of the PSPA 2013, which closed the legacy schemes to further accrual from 1 April 2015. As a consequence, and subject to the transitional and savings provisions in section 89, the power to provide tapered and transitional protection will no longer be available from 1 April 2022, and any exceptions that were made under these powers will no longer have effect from 1 April 2022 (this is the effect of the law when powers are repealed prospectively, and this effect is also clarified by the wording of section 89(1)).
350. Section 88(2)(b) inserts a new subsection (4A) into section 18 PSPA 2013, which clarifies that the closure of the legacy schemes by section 18(1) of the PSPA 2013 does not apply and is retrospectively treated as never having applied in relation to a member’s remediable service in a legacy scheme. This section therefore inserts an exception to the closing date in section 18(1) PSPA 2013, with retrospective effect, for all those who have remediable service which is treated as pensionable service under the legacy schemes by virtue of the provisions of this Act. This ensures that the provisions of section 18 PSPA 2013 do not conflict with the provisions of this Act (particularly section 2(1)) which retrospectively treat members’ remediable service as pensionable service under the legacy schemes.
351. Section 88(3) amends section 31(4) of the PSPA 2013 to reflect the repeal of sections 18(6) and 18(7) of that Act.
352. Section 88(4) to 88(6) replicate the provisions in section 88(1) to 88(3) in respect of the PSPA(NI) 2014.
353. Consequential amendment is made to JUPRA by section 88(7).

Section 89: Restriction of existing schemes: savings and transitional provision

354. This section makes transitional and savings provisions in respect of section 88, whereby scheme regulations may continue to exercise the powers contained in (repealed) sections 18(5) to 18(8) of PSPA 2013 or (repealed) sections 18(5) to 18(9) of PSPA(NI) 2014 to provide exceptions to the closure of legacy schemes from 1 April 2022 only in the narrow circumstances specified by section 89(2).
355. The circumstances specified by section 89(2) are:
     1. in connection with transitional protection, only to the extent that it existed in scheme regulations prior to 1 April 2022 and in respect of a member’s service between 1 April 2015 and 31 March 2022;
     2. in connection with transfers into a public service pension scheme by a Fair Deal employee 3 , or by other employees accruing benefits in an unreformed public sector pension scheme. In such a case, if those employees have accrued any pensionable service on or after 1 April 2022 in a scheme broadly equivalent to a legacy scheme, they may be awarded credit in a legacy scheme; and
     3. in connection with weighted accrual. To the extent that a member’s accrual rate in a legacy scheme is dependent on their length of service (regardless of the scheme in which that service is pensionable), that accrual rate should continue to be adjusted on the same basis; in such a case, further accrual will be permitted in a legacy scheme only to the extent that it derives from an increase in the relevant member’s length of service.
356. Section 89(4) to (6) replicate the provisions in section 89(1) to 89(3) in respect of the PSPA(NI) 2014.

Section 90: Restriction of other schemes

357. Section 90 closes the judicial schemes that are not listed as "existing schemes" under Schedule 5 to the PSPA 2013 and the pension scheme established for certain employees of the Secret Intelligence Service.
358. Section 90(1) prevents members of a "relevant scheme" from accruing benefits in relation to their service after 31 March 2022. Section 90(2) outlines the definition of "relevant scheme". These are the pension schemes established for certain employees of the Secret Intelligence Service, the NJPS, the Northern Ireland Judicial Pension Scheme 2015, and the FPJPS 2017.
359. Section 90(3) expands on the definition of benefits in relation to a person’s service under section 90(1) to include benefits relating to the person’s death in service.

Section 91: Prohibition of new arrangements to pay voluntary contributions

360. This section provides that no arrangements to pay voluntary contributions to a relevant scheme (as defined in subsection (2)) may be entered into after 31 March 2022.
361. Section 91(3) provides that section 91(1) does not affect arrangements that were entered into on or before 31 March 2022 and does not apply to new arrangements entered into by virtue of scheme regulations made under section 25 or 60 of this Act.

Section 92: Amendments relating to employer cost cap

362. PSPA 2013 and PSPA NI 2014 provide for the operation of the cost control mechanism (CCM). The CCM assesses certain elements of scheme costs and compares these costs to a base level (the "employer cost cap"), set at the first valuation. If the costs measured in the CCM have decreased/increased by more than the specified margins below/above the employer cost cap, then member benefits are increased/reduced to bring costs back to target (or member contributions are reduced/increased). The upper and lower margins have been specified in Treasury Regulations as a percentage of pensionable pay. So, there is effectively a corridor either side of the employer cost cap, with margins representing the ‘ceiling’ and ‘floor’.
363. By amending section 12 of PSPA 2013, section 92 sets the legislative framework for the implementation of two of the Government’s three reforms to the CCM, namely the reformed scheme only design and the economic check. Section 92 confers powers on HM Treasury (or Northern Ireland’s Department of Finance) to implement the two reforms through Directions. It also makes some minor technical changes to PSPA 2013.
364. Subsection (2) provides for the employer cost cap to be set within a year of the date on which a scheme’s first valuation (i.e., the valuation that includes a calculation of the employer cost cap) is completed. In effect, this allows the employer cost cap to be set after the regulations of a new scheme are made.
365. Subsection (3) clarifies that "employer cost cap" in section 12 of PSPA 2013 refers to the rate set by virtue of s.12(1) PSPA 2013.
366. Subsection (4) clarifies that employer cost caps are set for schemes made under section 1 of PSPA 2013 and that how changes in costs are to be measured is to be in accordance with Treasury Directions.
367. Subsection (5)(a) and (b) make further minor clarifications by substituting "the cap" with "the employer cost cap of the scheme" and "subsequent valuations" with "the second or any subsequent valuation".
368. Subsections (5)(c) and (7) relate to the reformed scheme only design. Subsection 5(c) makes a minor amendment to s.12(4)(c) PSPA 2013, clarifying that Treasury Directions may determine whether and to what extent costs or changes in the costs of connected schemes are to be considered by the CCM. This makes it explicit that Treasury Directions may provide for the costs or changes in costs of connected schemes to be excluded from the CCM. Subsection (7) amends s.12(5)(a) PSPA 2013 to clarify that whether and how to take into account the costs of connected schemes is determined by Treasury Directions made under s.12(4) PSPA 2013, which is amended by subsection (5)(c) as per the above.
369. Subsection (5)(d) sets the framework for the introduction of the economic check. It inserts a new subsection into s.12(4) PSPA 2013, stating that the data, methodologies, and assumptions used for the purposes of specifying (in Treasury Directions) the costs, or changes in costs, that are to be taken into account by the CCM are to relate to the growth in the economy, growth in earnings or the rate of inflation. This creates a new power for the Treasury to implement the economic check in Directions.
370. Subsection (6) inserts a new subsection to clarify that statements made prior to the date the Government Actuary’s (GA) report was delivered to the Government (27 May 2021) should no longer apply to the operation of the CCM, in order to reflect clearly in law and for the avoidance of doubt the change in policy position that the implementation of the economic check represents. This ensures subsection (5)(d) creates a power that can introduce an economic check designed in line with the GA’s recommendation and the Government’s policy intention as expressed in the Government’s consultation response and public statements made since.
371. Subsection (8) clarifies that in s.12(6) PSPA 2013 "the scheme" refers to a scheme under section 1 of PSPA 2013. It also clarifies that "the margins" refers to either of the margins specified under s.12(5)(a) PSPA 2013 – that is, either the upper or lower margin.
372. Subsection (9) makes a number of clarifications regarding the process that follows a breach of the CCM by inserting four new subsections into s.12 PSPA 2013. First, it provides for Treasury Directions to specify the time at which an increase or decrease in members’ benefits or contributions should take effect. Second, it requires that steps to rectify a breach are only taken after the scheme actuary has certified those steps would achieve the target cost of the scheme. Third, it provides that Treasury Directions may specify which costs or changes in costs are to be taken into account, or which data, methodologies and assumptions are to be used, for the purposes of determining whether any steps, if taken, would achieve the target cost of the scheme. Finally, it clarifies that "the scheme actuary" means the actuary who carried out, or is, for the time being, exercising actuarial functions in relation to, the valuation under s.11 of PSPA 2013 that suggests a breach has occurred.
373. Equivalent changes are made to PSPA NI 2014, save for the fact that the relevant powers are conferred on Northern Ireland’s Department of Finance, not HM Treasury. Subsection (19) also provides for the removal of "and Personnel" in subsections (3), (4), (5), (8), (9) and (10) of section 12 PSPA NI 2014.

Section 93: Operation of employer cost cap in relation to 2016/17 valuation

374. Where a breach of the CCM has occurred, rectification must take place. This involves adjusting member benefits or contributions prospectively. Rectifications are determined through a process involving Scheme Advisory Boards established under s.7(1) of PSPA 2013 or s.7(1) of the PSPA NI 2014. There is a default rectification method in case agreement cannot be reached through that process. If the assessed cost is above the upper margin, known as a ceiling breach, then action is taken to reduce the value of benefits that will be accrued in the new scheme, and/or member contributions will be increased. Alternatively, if the assessed cost is below the lower margin, known as a floor breach, then the value of benefits that will be accrued in the new scheme will be increased, and/or member contributions will be decreased.
375. Section 93 provides that ceiling breaches above the upper margin of the employer cost cap are not rectified at the 2016 valuations (or 2017 valuations for the Local Government Pension Scheme (Scotland)) to ensure that no benefit reductions take place as a result of the conclusion of the 2016 (and 2017) valuation process. Section 93 does not, however, prevent the rectification of any floor breaches that occur at the 2016 valuations (or 2017 valuations for the Local Government Pension Scheme (Scotland)) so any benefit improvements or cuts to member contributions that are due will be honoured.
376. Subsections (1) and (2) remove the requirement to rectify a ceiling breach at the 2016/17 valuations of a public service pension scheme, including retrospectively, by removing the effect of Treasury regulations 4 made under s.12(5) of PSPA 2013. Accordingly, where the cost of a scheme goes above the ceiling, this section also removes the effect of Treasury regulations that specify a target cost.
377. Subsection (3) clarifies that, in this section, "section 1 scheme" means a scheme under section 1 of PSPA 2013, "the employer cost cap", in relation to a section 1 scheme, has the same meaning as in section 12 of PSPA 2013, and any reference to a section 1 scheme’s "2016/17 valuation" is to the scheme’s valuation under section 11 of PSPA 2013 with an effective date in 2016 or 2017.
378. Equivalent changes are made to PSPA NI 2014, save for the fact the relevant powers are conferred on Northern Ireland’s Department of Finance, not HM Treasury.
379. Subsection (7) provides that the actuarial valuation with an effective date of 31 March 2016 that was signed on 18 December 2018 under regulation 123 of the Local Government Pension Scheme Regulations (Northern Ireland) 2014 (S.R. (N.I.) 2014 No. 188) is of no effect. Unlike the other public service pension schemes, the Northern Ireland Local Government Pension Scheme signed this valuation report before the Court of Appeal judgment was made and the cost control valuations were paused. In line with the Government decisions taken following that judgment and for consistency with other public service pension schemes, the Northern Ireland Local Government Pension Scheme is now preparing a valuation report that will supersede the report signed on 18 December 2018. Section 93(7) clarifies that the report signed on 18 December 2018 is therefore of no effect.

Section 94: Amendments relating to scheme regulations

380. This section provides for amendments to the PSPA 2013 and the PSPA(NI) 2014. Section 94(1) to 94(4) amend section 3 of the PSPA 2013 to allow scheme regulations to make consequential, supplementary, incidental or transitional provision amending any primary legislation passed before or in the same session as this Act or secondary legislation. In conjunction with section 37 and 74, this allows responsible authorities for new schemes to use scheme regulations to amend both legacy schemes and new schemes, in order to make consequential, supplementary, incidental or transitional provision in relation to any provision of Part 1 of this Act. Section 94(11) to 94(14) make the same provision in respect of the PSPA(NI) 2014.
381. Section 94(5) and 94(6) remove an exception to the requirement in section 3(5) (and contained in section 3(6)(b)) of the PSPA 2013) for Treasury consent in the making of scheme regulations by a responsible authority. The relevant exception is set out in section 3(6)(b) PSPA 2013 and relates to scheme regulations of the Welsh Ministers for fire and rescue workers. This reflects the introduction of an Exchequer grant for these pensions where employer and employee contributions are insufficient to meet the current costs of paying pensions. As a consequence, Treasury consent will now be required before the Welsh Ministers make scheme regulations relating to fire and rescue workers. The section also introduces a delegated power for the Treasury to make future amendments to the exceptions set out in section 3(6) PSPA 2013 through a Treasury order.
382. Section 94(7) amends section 8 of the PSPA 2013 to clarify that local government new schemes remain career average revalued earnings schemes, notwithstanding the changes made through this Act to remedy the discrimination. Section 94(15) makes the same provision in respect of the PSPA(NI) 2014.
383. Section 94(8) amends the PSPA 2013, section 21, to provide that the consultation requirements in relation to scheme regulations imposed by that section may be satisfied by consultation before, as well as after, the coming into force of the powers in this Act, and the consequential amendment power inserted by this Act into section 3(2)(c) of the PSPA 2013. The policy intention is that this will allow schemes to consult upon their scheme regulations when they are ready to do so. Section 94(16) makes the same provision in respect of the PSPA(NI) 2014.
384. Section 94(9) amends the PSPA 2013, section 23, which sets out the procedure in relation to retrospective provision in scheme regulations. Under section 23 PSPA 2013, where a responsible authority proposes to make scheme regulations containing retrospective provision, the responsible authority must first consult the persons likely to be affected (or their representatives) with a view to reaching agreement with them (or obtain their consent where the provision appears to have significant adverse effects) and is required to lay a report before Parliament, Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly. Section 84(9) inserts an exception to section 23 PSPA 2013 where retrospective provision is made under any provision contained in Part 1 of this Act, or any consequential, supplementary, incidental or transitional provision under section 3(2)(c) PSPA 2013 (which is inserted by section 84(3)). Section 84(10) provides a definition for the abbreviation of this Act to be inserted into section 37 PSPA 2013. Section 94(17) and 94(18) make equivalent provision in respect of the PSPA(NI) 2014.

Section 95: Amendments relating to the establishment or restriction of schemes

385. PSPA 2013 and PSPA (NI) 2014 set out the governance and valuation frameworks for pension schemes set up under these Acts. This section ensures that the governance and valuation frameworks operate as intended where a pension scheme established under PSPA 2013 or PSPA (NI) 2014 is closed, and a new scheme is established for persons of the same description. Where two schemes have been established for persons of the same description, they are known as "connected schemes" (see section 4(6) PSPA 2013 and PSPA (NI) 2014).
386. Section 95(2), (3) and (4) insert new subsections into sections 4, 5, and 7 of PSPA 2013 to ensure that scheme regulations do not need to provide for the appointment of a scheme manager, pension board and scheme advisory board respectively, if the scheme in question is connected with another scheme and a scheme manager, pension board or scheme advisory board is provided for in regulations for that connected scheme. Section 95(4) also amends section 7 PSPA 2013 to require scheme advisory boards to provide advice on the desirability of changes to connected schemes, as long as those schemes are not injury or compensation schemes. Sections 95(9), 95(10) and 95(11) make the equivalent changes to PSPA (NI) 2014.
387. Section 95(5) inserts a new subsection which removes the requirement under s.11(1) PSPA 2013 for a scheme’s regulations to provide for actuarial valuations of that scheme where the scheme is connected with another scheme and actuarial valuations are provided for in the regulations of that other scheme. Section 95(12) makes the equivalent changes to PSPA (NI) 2014.
388. Section 95(6) inserts a new subsection (12A) which states that where a scheme is a restricted scheme and is specified for the purposes of this section in Treasury regulations, the requirement under section 11(1) PSPA 2013 is removed and section 12(1) PSPA 13 is disapplied in respect of that scheme, meaning scheme regulations need not provide for actuarial valuations or the setting of an employer cost cap for the purpose of measuring changes in the cost of that scheme. Treasury regulations which specify a scheme for the purpose of this section are subject to the negative Commons procedure. Section 95(13) makes the equivalent changes to PSPA (NI) 2014, save for the fact that schemes to which this section applies are to be specified in regulations made by Northern Ireland’s Department of Finance. Those regulations will be subject to negative resolution.

Section 96: Amendments relating to the Secret Intelligence Service etc

389. This section amends the PSPA 2013 to accommodate provisions related to Secret Intelligence Service pensions. Section 96(2)(a) clarifies the closing date for legacy schemes as being 31 March 2016 and section 96(2)(b) defines "relevant Agency scheme".
390. Section 96(3) to 96(5) state the words or paragraphs to be omitted with regard to these schemes. Section 96(6) states that any provision of subordinate legislation related to Agency schemes under sections 18 or 31 of the PSPA 2013 that came into force before this section and could have been made under section 18 of the PSPA 2013 if the amendments under section 96(1) to 96(4) had been in force at that time, are to be treated as having been made under section 18 of the PSPA 2013.

Section 97: Amendments relating to the judiciary

391. Section 97(1) and 97(2) insert a new section 25A into the PSPA 2013 which enables scheme regulations made under the PSPA 2013 for the judiciary to take into account relevant past service of a holder of a judicial office subsequently added to the scheme through an order made under paragraph 2(1) of Schedule 1 to the PSPA 2013. This means that the relevant pensionable service of such a judicial office holder can be backdated so that it may start before the date of inclusion of the judicial office in the order under Schedule 1. For example, if a judicial office is added to the definition of the judiciary (e.g. if there is a new judicial office) in 2024, but it is deemed that a holder of that office should be able to accrue pensionable benefits in the scheme for service from 2023, then scheme regulations made under section 25A of the PSPA 2013 may make provision so that pension benefits of that office holder are to be determined by reference to judicial service from 2023. The scheme regulations will also enable the collection of member contributions in relation to accrual of pension benefits for that service prior to being specified in the relevant order.
392. Section 97(3) replaces the prohibition on including Northern Irish or Scottish devolved offices within the scope of the definition of the judiciary in the PSPA 2013 so that the Lord Chancellor or the Secretary of State for Scotland (depending on who is the appropriate minister for the purposes of paragraph 2(1) of Schedule 1 to the PSPA 2013) may specify such a devolved judicial office in the definition of the judiciary in that Act in response to a request from the Scottish Ministers or the Department of Justice.
393. Section 97(4) and 97(5) make equivalent provision for the PSPA (NI) 2014 to that in section 97(1) and 97(2).

Section 98: Amendments relating to non-scheme benefits

394. Section 98(1) to 98(3) amend section 26 of the PSPA 2013 which allows the scheme manager or employer of a section 1 PSPA 2013 scheme to pay in respect of a person, pensions or other benefits into a scheme other than a section 1 scheme. The amendments clarify that such benefits can only be paid to persons who are members of a section 1 scheme, by virtue of section 1(2) or section 25 PSPA 2013, in addition to persons who would be such members but for the fact they are members of a stakeholder or personal pension scheme or occupational defined contributions scheme.
395. Section 98(4) to 98(6) make equivalent provision for the PSPA (NI) 2014 to that in section 98(1) to 98(3).

Section 99: Amendments relating to pension schemes for members of the Senedd

396. Section 99 amends section 30 of the PSPA 2013 to disapply subsection (1)(e) (cost control) and (3) for new public body pension schemes for members of the Senedd. Section 30(1)(e) required a scheme for Senedd members to provide for actuarial valuations to be made of the scheme (and any statutory scheme that is connected with it) and for an employer cost cap (to be used for the purposes of measuring changes in the cost of the scheme). Section 30(3) required Treasury consent to be obtained before a new public body pension scheme for Senedd members was made or amended. The Wales Act 2017 inserted Schedule 7A to the Wales Act 2006 to provide the Welsh Government with legislative competence for pensions in relation to members of the Senedd. The changes to the PSPA 2013 ensure, in accordance with the provisions of the Wales Act 2006, that there is no interference with the devolved responsibility of the Welsh Government for Senedd pensions.

Section 100: Guidance to public service pension scheme managers on investment decisions

397. Section 100(1) to 100(2) amends the power in paragraph 12(a) of Schedule 3 to the PSPA 2013. The provision allows the responsible authority of a public service pension scheme to make regulations allowing for the issuing of guidance or directions to the scheme manager regarding the administration and management of the scheme, to cover investment decisions which it is not proper for the scheme manager to take in light of the UK’s foreign and defence policy. The power applies to the responsible authorities of the LGPS which for the LGPS in England and Wales is the Secretary of State and for the LGPS in Scotland is the Scottish Ministers.

Section 101: Power of Treasury to make scheme for compensation

398. This section provides that the Treasury may make regulations to create a compensation scheme to pay compensation in relation to any compensatable losses incurred by relevant members.
399. Section 101(2) provides that the Treasury may make provision including: 
     1. appointing a body to administer the scheme; 
     2. establishing a body to administer the scheme including the appointment of members, staffing, expenditure, procedures and other matters the Treasury consider appropriate;
     3. allowing the body to exercise a discretion;
     4. conferring power on the Treasury to give guidance or directions to the body administering the scheme; and
     5. any provision that could be included in regulations made by virtue of section 26 (interest and process) in relation to compensation payable under section 23 (power to pay compensation) or 61 (interest and process) in relation to compensation payable under section 59 (power to pay compensation).

Section 102: Power of Department of Finance to make scheme for compensation

400. This section confers equivalent powers to the Department of Finance in Northern Ireland to create an equivalent scheme to the one detailed in section 101.

Section 103: Power to make provision in relation to certain fee-paid judges

401. Section 103(1) provides a power to make provision for the purpose of ensuring certain judges whom it is accepted have fee-paid service in a relevant legacy scheme from April 2015 are put in the position, so far as possible, that they would have been in had they always been treated as members of that legacy scheme. This specific group of judges (defined in section 103(3)) were aged over 55 on 1 April 2012, in fee-paid service on 31 March 2012 and took up salaried office between 1 April 2012 and 1 December 2012 or, in the case of members of a Northern Ireland scheme, on 31 January 2013.
402. The mechanism to deal with rectifying individual circumstances, for example, pension benefits paid, contributions liability and member options that may have been purchased in the 2015 scheme are complex. Section 103(1) therefore provides that regulations may be made in respect of these judges. Section 103(2) sets out provision that may be made under the power in section 103(1) which includes regulations that correspond with some of the powers in Chapter 2 in respect of judges with remediable service.

Section 104: HMRC information-sharing and other functions relating to compensation etc

403. This section provides a new function enabling HMRC (or anyone acting on their behalf) to exchange information with a relevant person for the purpose of facilitating the exercise of any "compensation function" (as defined in section 104(6)) or to do anything else which HMRC think necessary or expedient for that purpose. This is to facilitate the sharing of any information required to process any claims for compensation under this Act.
404. Section 104(2) sets out the conditions for data use by the person who receives the data and the consequences if that data discloses personal information.
405. Section 104(3) extends the criminal offence found in section 19 of the Commissioners for Revenue and Customs Act 2005 (offence of wrongful disclosure) to contraventions of section 104(2)(b) in relation to identifiable personal information. Section 104(4) and (5) clarify the relationship between this section and other legislation relating to disclosure of information. Section 104(6) contains definitions of terms used in this section.

Section 105: Section 91 of the Pensions Act 1995 and section 356 of Armed Forces Act 2006

406. Section 105(1) and (2) disapplies section 91 of the Pensions Act 1995 and Article 89 of the Pensions (Northern Ireland) Order 1995. These provisions state that occupational pension entitlements to a pension or right to a future pension cannot be assigned or commuted or surrendered, and that there can also be no set-off exercised against it. Section 105(2)(a) provides that these prohibitions do not apply to any provision in this Act. Section 105(2)(b) provides that the surrender of a pension entitlement or right as a condition for inclusion of opted-out service in remedy under section 5(5)(b), or the surrender of a pension entitlement or right to a partnership pension account under section 41(3) or (6), is permitted.
407. Section 105(3) and 105(4) provides that restrictions in section 356 of the Armed Forces Act 2006, which prevent certain armed forces pension benefits from being assigned, do not apply to the operation of Part 1 of the Act.

Section 106: Minor amendment

408. Section 106 makes a minor correction to section 2(7A) of JUPRA on a cross-reference within that section on ill-health retirement benefits.

Section 107: Parliamentary procedure for judicial schemes: transitory provision

409. Section 107 provides that scheme regulations for the judiciary made within one month of the passing of this Act are subject to the made-affirmative procedure. Section 107(3) states that such regulations will cease to have effect 28 days after being made unless they are approved by each House of Parliament. The 28-day period does not include days in which Parliament is dissolved or prorogued or where either House is adjourned for more than four days (section 107(4)). Scheme regulations for the judiciary are generally subject to the draft affirmative procedure as provided for in section 24 of the PSPA 2013. This change in procedure for a short period after the passing of this Act is to ensure that there is no gap in pension provision for the judiciary when all current pension schemes for the judiciary close to future accrual after 31 March 2022.
410. Section 107(6) provides that regulations otherwise subject to the negative procedure may be combined with scheme regulations made under this section, with the combined instrument being subject to the made-affirmative procedure. This enables a single instrument to establish the reformed judicial pension scheme and to add devolved office holders to the definition of judiciary.

Section 108: Power to make consequential provision

411. This section permits amendments, repeals or revocations of primary and secondary legislation that are consequential upon the provisions contained in Part 1 of this Act. Regulations made under this section can make retrospective provision. Where regulations made under this section affect primary legislation (as defined in section 108(6), to include devolved legislation), those regulations will be subject to the affirmative procedure. Any amendments to, repeals or revocations of secondary legislation are subject to the negative procedure.

Section 109: Meaning of "member" etc

412. This section defines a member as being someone who is a member of any pension scheme, whether alive or deceased. An active member refers to a member who is presently accruing benefits as part of an employment or office held. A pensioner member refers to a member who is entitled to present payment of benefits from a pension scheme. A deferred member has accrued rights under the pension scheme but is neither an active member nor a pensioner member.

Section 110: Interpretation of Part

413. This section provides definitions for words and phrases found in this Act.

Part 2: Pensions and Banking (Special Provisions) Act 2008 Bodies

Section 111: Establishment of new public schemes and transfer of rights

414. Section 111(1) allows the Treasury to make regulations to establish one or more new pension schemes to provide for pension payments and other benefits to and in respect of persons who are, or have been, members of the BBS Pension Scheme or the NRAM Pension Scheme.
415. Section 111(2) allows the Treasury to make regulations to transfer qualifying accrued rights from the BBS Pension Scheme and the NRAM Pension Scheme to a new public scheme, without requiring any approval or consent.
416. Section 111(3) allows regulations under section 111(2) to include provision for the discharge of any liabilities that are transferred under section 111(2). This may be used to discharge the liabilities of the trustees of the BBS Pension Scheme and the NRAM Pension Scheme.
417. Section 111(4) and 111(5) define the qualifying accrued rights that may be transferred to a new public scheme. These include rights or entitlements to and in respect of members of BBS or NRAM pension scheme, and their survivors, to present or future benefits under the relevant scheme. This includes rights and entitlements to money purchase benefits, also known as defined contribution pensions, and pension credit rights, which are rights provided to an ex-spouse or ex-civil partner under a pension sharing order.
418. Section 111(4) provides that qualifying accrued rights are rights that exist immediately before "the qualifying time" specified in regulations by the Treasury.
419. Section 111(6) provides that regulations specifying or describing "the qualifying time" may make provision for transfers of qualifying accrued rights generally, or for other transfers. This means that these regulations may specify "the qualifying time" in relation to these types of transfers.

Section 112: New public schemes: further provision

420. Section 112(1) allows a new public scheme to provide for:
     1. the payment of pensions or benefits to or in respect of some or all persons who are, or have been, members of the BBS Pension Scheme or the NRAM Pension Scheme;
     2. the payment of money purchase benefits and/or benefits which are not money purchase benefits;
     3. increasing the amounts payable in respect of qualifying accrued rights by the new scheme; and
     4. the payment or receipt of transfer values or other lump sum payments.
421. A new public scheme established under section 99 would not come within the definition of an occupational pension scheme in section 1(1) of the Pension Schemes Act 1993. Section 112(2) allows for regulations to provide for a new scheme to be treated as an occupational pension scheme. Section 112(2) also enables regulations to provide that a new public scheme to be treated as a previously contracted-out scheme. This will allow a new public scheme to make provision for qualifying accrued rights that were contracted out under the BBS Pension Scheme or the NRAM Pension Scheme. Finally, section 112(2) enables a new scheme to be treated as another type of occupational pension scheme, such as a public service pension scheme under section 1(1) of the Pension Schemes Act 1993. It also provides for such an enactment to apply to a new public scheme with modifications specified in the regulations.
422. Section 112(3) provides that regulations that amend a new public scheme may have retrospective effect. This would be subject to the affirmative procedure under section 107. Such powers are common in public service pensions legislation. For example, it may be necessary to adjust schemes to accommodate changes in law or where the Government does not want to delay the benefit of a particular change but needs time to consider the consequences and appropriate method of making the change.
423. Section 112(4) permits regulations under section 112(1) to confer functions on the Treasury or another person, and for that person to exercise discretion.
424. Section 112(5) allows the Treasury to make arrangements for a new public scheme to be administered by any person, and to delegate to any person a function exercisable by the Treasury (such as the administration of the scheme) under the new public scheme.

Section 113: Protection against adverse treatment: transfer of rights

425. This section provides protection against the accrued rights of members of the BBS or NRAM Pension Scheme being adversely affected by the transfer of their rights to a new public scheme.
426. Section 113(1) imposes an obligation on the Treasury, when making regulations under section 99 which transfer qualifying accrued rights to a new public scheme, to ensure that the general scheme requirement under section 113(2) is met. It also imposes an obligation on the Treasury where qualifying accrued rights are money purchase benefits which are not in payment, to ensure that the money purchase requirement under section 113(3) is met.
427. Section 113(2) defines the general scheme requirement: the provision in the new public scheme in respect of qualifying accrued rights must be, in all material respects, at least as good immediately after the regulations are made, as under the BBS or NRAM Pension Scheme (as appropriate) immediately before that time.
428. Section 113(3) defines the money purchase requirement: the value of a person’s money purchase benefits (other than pensions in payment) under a new public scheme, immediately after the transfer, must be at least equivalent to the value of their qualifying accrued rights under the BBS Pension Scheme or NRAM Pension Scheme (as appropriate). Pensions in payment are not included in this section. This is because they will not be money purchase benefits in a new public scheme, under the statutory definition of section 181 of the Pension Schemes Act 1993. Qualifying accrued rights to pensions in payment will however be protected under the general requirement.
429. Section 113(4) provides that the Treasury may make regulations about the determination of the value of money purchase benefits for the purposes of section 113(3).
430. Section 113(5) permits regulations under section 113(4) to make provision about the person by whom and manner by which the value of rights or entitlements are valued. It also enables these regulations to make other provisions.
431. Section 113(6) makes clear that section 113(4) may not provide for the value of qualifying accrued rights to be determined by reference to a date more than three months before the transfer.
432. Section 113(7) provides that section 113(1) does not require the Treasury to include any provision in a new scheme if the Treasury is of the opinion that such provision would be incompatible with an enactment. 
433. Section 113(8) makes clear that section 113(1) to 113(3) should not be read as: requiring a new scheme to take a particular form; to be established in a particular way; requiring any duty or power imposed by a new scheme to be performed in a particular way; or affecting the power of any person to amend a new scheme.

Section 114: Protection against adverse treatment: amendment of new public schemes

434. Section 114(1) provides that the Treasury may not exercise its power to make regulations to amend a new public scheme, if those amendments would or may adversely affect individuals’ subsisting rights, unless the requirement for the consent of interested persons or their representatives under section 114(2), or the procedure requirements in section 102(4), have been met. In all other cases, the requirements for the consultation of interested persons or their representatives in section 114(3) must be met.
435. Section 114(2) provides that the consent requirements will be specified or described in regulations made by the Treasury.
436. Section 114(3) provides that the consultation requirements will be specified or described in regulations made by the Treasury.
437. Section 114(4) provides that procedure requirements will also be specified or described in regulations made by the Treasury. It also specifies that these are not requirements for the consent or consultation of interested persons or their representatives.
438. Section 114(5) to 114(7) provide definitions for terms used in this section.

Section 115: Transfer of assets and liabilities

439. Section 115(1) enables the Treasury, through regulations, to provide for the assets and liabilities of the BBS or NRAM pension schemes to be transferred to a nominee of the Treasury, or a company established by the Treasury for the purpose of holding the assets and liabilities pending their disposal or discharge.
440. Section 115(2) provides that regulations may only be made under this section where regulations have been made under section 99.
441. Section 115(3) provides that regulations made under this section may include provision for payments to be made into the Consolidated Fund.

Section 116: Transfer of other pensions and benefits

442. Section 116(1) enables the Treasury, through regulations, to provide for the transfer to the Treasury of qualifying liabilities of Bradford & Bingley, NRAM Limited, or UK Asset Resolution Limited.
443. Section 116(2) provides the definition of "qualifying liability" in this section: a qualifying liability is defined as a liability to pay a person a pension or other benefit in connection with that person’s past service with Bradford & Bingley, Northern Rock plc or another entity, excluding liabilities arising under the BBS Pension Scheme or NRAM Pension Scheme.
444. Section 116(3) allows the Treasury, through regulations, to provide for disapplication, or application with modifications, of relevant enactments to a qualifying liability which is an occupational pension scheme.
445. Section 116(4) defines "relevant enactment" under section 116(3) as an enactment pertaining to occupational pension schemes which is identified in regulations made under section 98(3).
446. Section 116(5) allows the Treasury to make regulations that provide for these arrangements that are an occupational pension scheme to be treated as a particular type of occupational pension schemes for the purposes of enactments identified in the regulations.

Section 117: Taxation

447. Section 117(1) allows the Treasury to make regulations to modify the way in which any relevant tax would have effect in relation to a new scheme; the members of the new scheme; survivors of those members; or a company established by the Treasury for the purpose of holding assets and liabilities that have been transferred to it from the BBS Pension Scheme or the NRAM Pension Scheme pending their disposal or discharge.
448. Section 117(2) allows for such regulations to treat a new scheme as a registered pension scheme.
449. Section 117(3) allows for the Treasury, by regulations, to vary the way in which any relevant tax would be applied as a consequence of regulations made under this Part of the Act, or in connection with anything done under the regulations, with regard to:
     1. the BBS Pension Scheme;
     2. the NRAM Pension Scheme;
     3. members of the BBS or NRAM pension scheme;
     4. persons who have survived a member of either of those schemes, who have an entitlement or right to benefits or future benefits in respect of that member;
     5. UK Asset Resolution Limited;
     6. persons in respect of whom there is a qualifying liability.
450. Section 117(4) provides that regulations made under section 99(1) or 99(3) may include provision for:
     1. a tax provision to be disapplied or applied with modifications;
     2. anything done to have or not to have a specified consequence for the purposes of a tax provision;
     3. the withdrawal of tax relief and the charging of a relevant tax.
451. Section 117(5) provides that regulations made under section 117(1) or 117(3) can have retrospective effect, provided that the regulations do not charge a relevant tax or withdraw tax relief.
452. Section 117(6) provides definitions for terms used in this section.

Section 118: Information

453. Section 118(1) allows the Treasury, by regulations, to make provision, to require prescribed persons to disclose information prescribed in the regulations to the Treasury.
454. Section 118(2) ensures that provisions under section 118(1) may only apply in respect of information which the Treasury reasonably requires for: making regulations under this Part of the Act; establishing or administering a new public scheme, including the transfer of accrued rights to the scheme; or administering arrangements under which a qualifying liability arises.
455. Section 118(3) allows regulations under section 118(1) to make provision about: the time, form and manner in which the information must be given; and the imposition of a financial penalty on a person who fails to comply with a requirement under the regulations without a reasonable excuse. This includes provision for appeals to a court or tribunal.
456. Section 118(4)(a) and (5) allow for information relating to rights or entitlements to pensions and or other benefits under the BBS Pension Scheme, or a new public scheme (so long as the rights and entitlements are for or in respect of persons who were members of the BBS Pension Scheme), and information relating to the administration of the BBS Pension Scheme or the new public scheme, to be shared between certain parties. These parties are: the Treasury; UK Asset Resolution; the trustees of the BBS Pension Scheme; or any persons administering or exercising functions under the BBS Pension Scheme or a new public scheme.
457. Section 118(4)(b) and 118(6) allows for information relating to rights or entitlements to pensions and or other benefits under the NRAM Pension Scheme, or a new public scheme (so long as those rights and entitlements are for or in respect of persons who were members of the NRAM Pension Scheme), and information relating to and the administration of the NRAM Pension Scheme or the new public scheme, to be shared between certain parties. These parties are: the Treasury; UK Asset Resolution; the trustees of the NRAM Pension Scheme; or any persons administering or exercising functions under the NRAM Pension Scheme or a new public scheme.
458. Section 118(7) and 118(8) ensure that the information sharing arrangements also apply to qualifying liabilities of UK Asset Resolution Limited; Bradford & Bingley; and NRAM Limited. These sections provide for:
     1. information relating to qualifying liabilities of UK Asset Resolution to be shared between UK Asset Resolution and the Treasury;
     2. information relating to qualifying liabilities of Bradford & Bingley to be shared between UK Asset Resolution; the Treasury; and Bradford & Bingley;
     3. information relating to qualifying liabilities of NRAM Limited to be shared between UK Asset Resolution; the Treasury; and NRAM Limited.
459. Section 118(9) ensures that, except under section 118(10), the disclosure of information under this section does not breach any restriction on the disclosure of that information, including any obligation of confidence that exists in relation to that information.
460. Section 118(10) makes clear that this section or regulations made under it do not make provision for the disclosure of information if that disclosure would breach data protection legislation. It also makes clear that duties or powers imposed by this section or the regulations must be considered when determining whether a disclosure would constitute such a breach.

Section 119: Regulations

461. Section 119(1) provides that the Treasury must consult the relevant trustees before making:
     1. regulations under section 99 which establish a new public scheme or transfer qualifying accrued rights to the new scheme; or
     2. regulations under section 103 which make provision for the transfer of assets and liabilities.
462. Section 119(2) defines "the relevant trustees" as the trustees of the BBS Pension Scheme, where the regulations would affect members or survivors of members of the BBS Pension Scheme and the trustees of the NRAM Scheme, where the regulations would affect members or survivors of members of the NRAM Pension Scheme.
463. Section 119(3) provides that regulations made under section 99 are subject to the affirmative procedure if:
     1. those regulations are subject to the consent requirements under section 96(1)(a) and (2); or
     2. the provisions of those regulations have retrospective effect.
464. Section 119(4) provides that regulations under section 118(1) are subject to the affirmative procedure if they make provision about the amount of a financial penalty.
465. Section 119(5) provides that a statutory instrument containing regulations under section 105 is subject to annulment in pursuance of a resolution of the House of Commons.
466. Section 119(6) provides that any other regulations made under this Part of the Act are subject to the negative procedure.

Section 120: Interpretation

467. This section provides definitions to be used in this Part of the Act.

Part 3: Judicial Offices

Section 121: Retirement date for holders of judicial offices etc

468. Section 121 introduces Schedule 1 which makes provision to raise the mandatory retirement age, which is the age at which judicial office holders, including judges, tribunal non-legal members, magistrates and coroners, are required to vacate office, to 75.

Section 122: Allowances for judicial office holders

469. Section 122 introduces Schedule 2 which makes provision for the determination of allowances for certain judicial posts.

Section 123: Sitting in retirement offices

470. Section 123 provides for new "sitting in retirement" offices by reference to the existing judicial offices listed in Schedule 3. Where a judicial office is listed in Schedule 3, a sitting in retirement equivalent version of the office will also be created. Section 123(2) confirms that this new office will be given the name of the original judicial office followed by the words "(sitting in retirement)".
471. Schedule 3 consists of six Parts. Each Part of the Schedule lists the existing judicial offices in respect of which a sitting in retirement office will be made. The Parts are separated by the relevant appointing authority (the appointing authority being the person who in law has the authority to make appointments in respect of the sitting in retirement offices created by that Part).

Section 124: Appointment to sitting in retirement offices

472. Section 124 makes provision for the eligibility criteria and steps that must be taken for appointment to a sitting in retirement office. This includes section 124(1) which confirms that sitting in retirement offices are subject to business need, and that the appointee must be qualified for appointment to the relevant original office. Section 124(2) sets out which member of the senior judiciary will be responsible for appointments to each sitting in retirement office.
473. Section 124(3) and (4) together ensure that appointees to sitting in retirement offices have previously held specific judicial offices, to be set out further in regulations by the Northern Ireland Department of Justice, the Welsh Ministers or the Lord Chancellor as appropriate. Such regulations may also prescribe additional eligibility requirements. Section 124(11) confirms that these regulations are to be made under the negative procedure.
474. Section 124(5) to 124(8) requires appropriate concurrence before a sitting in retirement appointment is made.
475. Section 124(9) and 124(10) allows the Lord Chief Justice and the Lord Chief Justice of Northern Ireland respectively to delegate their powers under the section to a nominated judicial office holder to exercise these powers on their behalf.

Section 125: Appointment to sitting in retirement offices: further provision

476. Section 125 makes further provision in respect of appointment to a sitting in retirement office.
477. Section 125(2) confirms that a person appointed to a sitting in retirement office is to be treated for all purposes as if they were still the holder of the pre-retirement office, other than in relation to the exceptions set out in section 125(3) (appointment, removal and tenure, oaths, remuneration, allowances and pensions). This will allow holders of sitting in retirement offices to be deployed flexibly across the courts and tribunals system in the same way as their pre-retirement counterparts. Section 125(4) to 125(9) together specify that terms of appointment and remuneration for the sitting in retirement offices are to be set by the same person who exercises such powers in relation to the original offices, subject to the mandatory retirement age of 75 and to section 126 (Discipline and removal from office).

Section 126: Discipline and removal from office

478. Section 126 makes provision for discipline and the removal of a sitting in retirement office holder from office with the effect that, other than certain exceptions, holders of sitting in retirement offices will be subject to the same disciplinary regimes as the holders of corresponding original offices. Section 126(1) to 126(5) apply to sitting in retirement offices in England, Wales and Scotland (created by Parts 1, 2, 5 and 6 of Schedule 3), while section 126(6) and 126(7) apply to the Northern Ireland sitting in retirement offices (created by Parts 3 and 4 of Schedule 3).
479. Section 126(1) specifies that the power of removal for relevant sitting in retirement offices is exercisable by the same person who holds such powers in relation to the equivalent original office. The only exception (in section 126(1)(a)) is for judges of the High Court and Court of Appeal, where the sitting in retirement officeholders may be removed by the Lord Chancellor with the agreement of the Lord Chief Justice. In accordance with section 126(2), removal from a sitting in retirement office is subject to the same approval requirements as are required for the corresponding original office. Section 126(1) further provides that a person appointed to a sitting in retirement office can only be removed from office on a qualifying ground, defined by section 126(3) as a ground specified in the person’s term of appointment or the ground of inability or misbehaviour.
480. Section 126(4) and 126(5) together mean that, where the original office is a ‘judicial office’ within the meaning of section 126(4) of the Constitutional Reform Act 2005, the corresponding sitting in retirement office will be subject to Chapter 3 of Part 4 of the Constitutional Reform Act 2005 (discipline) as if it were listed in Schedule 14 to that Act.
481. Section 126(6) and 126(7) together mean that the Northern Ireland sitting in retirement offices (created under Parts 3 and 4 of Schedule 3) are subject to the provisions of section 7 of the Justice (Northern Ireland) Act 2002 (removal from listed offices). Section 126(8) and 126(9) make interpretive provision for section 126.

Section 127: Power to add new offices

482. Section 127(1) creates the power for the ‘appropriate national authority’ to make regulations to add a judicial office to the list in Schedule 3, with the exception of offices for which the Scottish Parliament have legislative competence (see section 127(3)). Section 127(2) defines "appropriate national authority". The effect of this definition is for the Northern Ireland Department of Justice, the Welsh Ministers or the Lord Chancellor to each be an "appropriate national authority" as appropriate by context.
483. Section 127(4) and 127(5) together create a requirement for either the Lord Chief Justice, Senior President of Tribunals, Lord Chief Justice of Northern Ireland or the President of Welsh Tribunals to be consulted as appropriate before regulations are made under this provision.
484. Section 127(6) confirms that regulations made under section 128 are subject to the affirmative procedure.

Section 128: Consequential etc provision

485. Section 128 brings into effect Schedule 4, which makes consequential amendments relating to sitting in retirement. Section 128(2) allows the "appropriate national authority" to make regulations to amend Schedule 4. Section 128(3) defines "appropriate national authority". The effect of this definition is for the Northern Ireland Department of Justice, the Welsh Ministers or the Lord Chancellor to each be an "appropriate national authority" depending on the context.
486. Section 128(4) provides that any regulations made under section 128(2) may amend, repeal or revoke any provisions made by any enactment. Under section 128(5), regulations made under section 128(2) which deal with primary legislation are subject to the affirmative procedure, while section 128(6) specifies that any other regulations are subject to the negative procedure. Section 128(7) makes interpretive provision.

Part 4: General

Section 129: Regulations and directions

487. This section sets out the procedure that applies where regulations, other than those listed at section 129(8), are made under this Act.
488. Section 129(2) provides that scheme regulations made by the Lord Chancellor or the Treasury must be made by statutory instrument.
489. Section 129(3) provides that a power or duty of a Northern Ireland department to make regulations is exercisable by statutory rule.
490. Section 129(4) and (5) sets out the meaning of "affirmative procedure" and "negative procedure" in the relevant legislatures, and further procedural matters are dealt with by section 129(6) and (7). Section 129(9) confirms that directions given under this Act by the Treasury or the Department of Finance in Northern Ireland may be revoked or varied.

Section 130: Extent

491. This section confirms that the Act extends to England, Wales, Scotland and Northern Ireland, and amendments, repeals or revocations made by this Act have the same extent as the provision amended, repealed or revoked.
492. This section also confirms that Part 5 of Schedule 3 extends to England and Wales only and Part 4 of Schedule 3 to Northern Ireland only.

Section 131: Commencement

493. This section provides when and how the provisions of the Act are to come into force, including powers for certain provisions of the Act to be brought into force by commencement regulations.

Section 131: Short title

494. This section confirms that the short title is the Public Service Pensions and Judicial Offices Act 2022.

Schedule 1: Retirement date for holders of judicial offices etc

Part 1: Amendments of primary legislation

495. Part 1 of Schedule 1 makes a series of amendments to primary legislation which set the MRA for holders of specified judicial offices.
496. Paragraph 25, which amends the JUPRA, in addition to raising the MRA of those judicial offices listed in Schedule 5 to that Act from 70 to 75, also makes a number of relevant changes.
497. Paragraph 25(2)(b) removes the power under section 26(5)-(6) which allowed the extension of certain judges’ appointments beyond the age of 70 on an annual basis up to 75 where such extension was considered to be in the public interest.
498. With the new MRA of 75, judicial office holders in scope will only be able to continue exercising office after their MRA to complete a case which began before they reached this age, as provided for under section 27 JUPRA, meaning that there is no longer a requirement for extensions under section 26(5)-(6) JUPRA.
499. Paragraph 25(3) extends the power in section 27 JUPRA to coroners (including Chief Coroner, Deputy Chief Coroner, senior coroners, area coroners and assistant coroners) and traffic commissioners, allowing them to act beyond the MRA in exceptional circumstances to complete a part-heard case.
500. Paragraph 25(4) amends Schedule 5 JUPRA to provide clarification of certain judicial offices and to include additional judicial offices to be captured by the effect of the increase in MRA and other relevant provisions in that Act.
501. Paragraph 33 amends the Courts Act 2003 to raise the MRA of magistrates in the magistrates’ courts of England and Wales from 70 to 75. In the context of magistrates, the MRA is the age at which their names are automatically entered into the supplemental list, meaning that they may no longer exercise office as magistrate. However, magistrates in the supplemental list retain the title of "justice of the peace" as recognition of their service.
502. Amendment to section 13(3) of the Courts Act 2003 ensures magistrates continue to be able to exercise office to complete a part-heard case which began before that lay justice reaches the MRA (75); however the provision under section 13(2) of that Act which allowed Bench Chairs to continue exercising office after reaching their MRA to complete their term as Bench Chair is removed. These changes bring magistrates in line with the wider judiciary.

Part 2: Transitional provision

503. Part 2 of Schedule 1 deals with transitional matters relating to the increase in the mandatory retirement age from 70 to 75.
504. Paragraph 43 sets out that the changes made in Parts 1 and 2 of this Schedule will apply to individuals appointed to the specified judicial offices both before and after these amendments come into force.
505. Paragraph 44 makes provision to allow magistrates whose names were entered in the supplemental list before the change in their MRA under paragraph 32 of this Schedule came into force and who are between 70 and 75 on commencement to apply to be reinstated for a temporary period to support business need. Paragraph 44(7) clarifies that this application process will apply to all magistrates aged between 70 and 75 at the date of commencement, regardless of the reason their names were originally entered in the supplemental list. Paragraph 44(5) makes provision to enable this temporary period to be extended where there is business need, and such extensions may occur more than once under paragraph 44(6). Paragraph 44(8) specifies that, once the temporary period specified in the reinstatement is over, the magistrate’s name will be re-entered in the supplemental list.
506. Paragraph 45 makes provision to allow the Northern Ireland Judicial Appointments Commission to reappoint lay magistrates in Northern Ireland who ceased to hold office before the change in their mandatory retirement age under paragraph 25(4) came into force and who are younger than 75. Paragraph 45(2)(b) permits the Northern Ireland Department of Justice to make an order regarding eligibility for reappointment in the same way as is currently provided for initial appointments under section 4(7) of the Justice Act (Northern Ireland) 2015.

Part 3: Repeal of spent provisions etc.

507. Part 3 of Schedule 1 repeals those provisions which are no longer required as a consequence of the changes made in the other Parts of this Schedule.

Schedule 2: Allowances payable to judicial office holders

508. Schedule 2 makes changes to a number of pieces of primary legislation to insert the provision to pay allowances in addition to salary or remuneration for relevant judicial office holders in England and Wales.

Schedule 3: Judicial Offices

Part 1: Lord Chief Justice as appointing authority for corresponding sitting in retirement office

509. Part 1 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Lord Chief Justice is the appointing authority.

Part 2: Senior President of Tribunals as appointing authority for corresponding sitting in retirement office

510. Part 2 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Senior President of Tribunals is the appointing authority.

Part 3: Lord Chief Justice of Northern Ireland as appointing authority for corresponding sitting in retirement office

511. Part 3 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Lord Chief Justice of Northern Ireland is the appointing authority.

Part 4: Northern Ireland Judicial Appointments Commission as appointing authority for corresponding sitting in retirement office

512. Part 4 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Northern Ireland Judicial Appointments Commission is the appointing authority.

Part 5: President of Welsh Tribunals as appointing authority for corresponding sitting in retirement office

513. Part 5 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Welsh Ministers are the appointing authority.

Part 6: Lord President of the Court of Session as appointing authority for corresponding sitting in retirement office

514. Part 6 of Schedule 3 provides for the existing judicial offices in respect of which a sitting in retirement office shall be created for which the Lord President is the appointing authority. 

Schedule 4: Consequential etc amendments in connection with Part 3

Part 1: Amendments of primary legislation

515. Part 1 of Schedule 4 makes a series of consequential and related amendments to multiple existing legislative provisions to prevent contradiction between those provisions and the new provisions on sitting in retirement being made by these sections.

Part 2: Amendments of secondary legislation

516. Part 2 of Schedule 4 makes a consequential amendment to omit wording from the Access to Justice Act 1999 (Destination of Appeals) Order 2016.

Part 3: Repeal of spent provisions

517. Part 3 of Schedule 4 repeals spent provisions within existing primary legislation.