Unison v First Secretary of State

In judicial review of a policy decision, the court will not intervene where an unlawful reason was relied on but the decision-maker would inevitably have reached the same result on independent, lawful grounds. The assessment of whether directly age-discriminatory arrangements can be justified under Article 6(1) of Council Directive 2000/78/EC is ordinarily a judgment for the decision-maker. The court reviews that judgment on conventional public-law principles and asks whether it was irrational or otherwise unlawful; it does not decide the merits afresh. A pension rule which determines access to an unreduced pension by a formula combining retirement age with age on joining the scheme is age-discriminatory and falls outside the Article 6(2) derogation.

UNISON sought judicial review of changes to the Local Government Pension Scheme made by the Local Government Pension Scheme (Amendment) Regulations 2006. The changes abolished the 85 year rule, subject to transitional protection. UNISON argued that the Government had misunderstood Council Directive 2000/78/EC, that the rule was not discriminatory or was justified, and that the consultation and regulations relied on materially flawed cost projections.

The Defendant maintained that the rule would have been abolished, and the transitional arrangements adopted, independently of the Directive because of cost and scheme-viability considerations. The central issues were whether any legal error materially affected the decisions, whether the Directive applied to the rule, and whether the Government’s assessments and actuarial evidence were irrational.

1. Application dismissed. The court applied the principle in R v Broadcasting Complaints Commission ex parte Owen [1985] QB 1153: where reasons are separable and the decision-maker would inevitably have reached the same decision on valid grounds, judicial review relief should not be granted.
2. The evidence established that the 85 year rule would have been removed on policy grounds concerning the affordability and financial stability of the Scheme even without the perceived need to comply with the Directive. The same conclusion applied to the transitional arrangements. Cost and financial viability were major considerations, and the decisions would have been the same independently of the Directive issue.
3. Although unnecessary to the result, the court concluded that the 85 year rule was direct age discrimination. It produced different pension outcomes for members in comparable situations where age was the distinguishing characteristic. The rule could disadvantage either younger or older members, depending on the age at which they joined the Scheme.
4. Article 6(2) of Council Directive 2000/78/EC did not remove the rule from the Directive’s scope. The provision concerned ages for admission or entitlement to retirement benefits and did not extend to a formula based materially on the member’s age when joining the Scheme. R v Secretary of State for Social Security ex parte EOC [1991] ECR 1-4297 was not analogous. The Directive nevertheless permitted direct age discrimination to be justified under Article 6(1).
5. The Government’s view that it could not successfully defend the rule as justified was a judgment reviewable only on conventional public-law grounds. The question was whether a reasonable decision-maker could have reached that conclusion, not whether the court considered it correct. The conclusion was rational. The transitional protection was also rationally based on proximity to retirement, the ability to make alternative arrangements, and cost.
6. The challenge based on actuarial assumptions failed. The Government was entitled to rely on advice from the Government Actuary’s Department after extensive discussion with UNISON and its advisers. The competing actuarial choices did not demonstrate irrationality. The application was dismissed, with UNISON ordered to pay the Defendant’s costs.

First-instance judicial review decision. No prior appellate decision is stated in the judgment.