British Medical Association (BMA), R (On the Application Of) v Secretary of State for Health And Social Care

This judicial review challenge concerned the lawfulness of the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 which introduced a power to suspend payment of NHS pension benefits upon charge as well as upon conviction. The court found the suspension power (in new paragraph 12(8)–(15) of Schedule 3 to the 2015 Regulations) unlawful.

Key legal principles and grounds for decision:

• The suspension power, as enacted, discriminated in the enjoyment of pension rights in breach of Article 14 read with Article 1 Protocol 1 ECHR because it treated retired NHS members (and their dependants) less favourably than comparable groups (notably current NHS employees and other public servants) without objective and reasonable justification.
• The absence, at the time of enactment, of adequate procedural safeguards (including a full right of appeal and appropriate prior representations) amounted to a breach of Article 6(1) ECHR and the common law rules of natural justice.
• The Secretary of State had also failed to comply with the Public Sector Equality Duty under section 149 of the Equality Act 2010 by not properly considering the likely disproportionate impact on those with protected characteristics (notably age and disability).
• Those defects could not be cured by interpretation under section 3(1) of the Human Rights Act 1998.

Accordingly, the claim succeeded and the relevant provisions enabling suspension after charge were quashed.

The claimant, the British Medical Association, challenged the 2019 Regulations that amended the NHS Pension Scheme by adding a power allowing the Secretary of State to suspend payment of pension benefits where a member is charged with certain serious offences, as well as where convicted. The claimant alleged breaches of Convention rights, natural justice and the Public Sector Equality Duty and sought declaratory and quashing relief.

Background and parties:

• The 2019 Regulations were made on 28 February 2019 and came into force on 1 April 2019. The suspension power was contained in new paragraph 12(8)–(15) of Schedule 3 to the 2015 Regulations. Before the amendment, the Secretary of State could only forfeit pension benefits after conviction in specified circumstances. The new power permitted suspension on charge and allowed suspension to continue (potentially indefinitely) without a right of appeal and with no automatic termination on acquittal.
• The BMA represented NHS doctors concerned at the disproportionate impact on retired members, who are more likely to be older or disabled.

Nature of the claim and relief sought:

• The claim sought judicial review of the decision to introduce the suspension power and a quashing order in respect of the provisions permitting suspension after charge. Grounds included discrimination (Article 14 read with Article 1 Protocol 1), breach of Article 6(1) and natural justice, failure to comply with the Public Sector Equality Duty (s.149 Equality Act 2010), and irrationality/Tameside duties.

Issues framed by the court:

• Whether the suspension power fell within the ambit of A1P1 and engaged Article 14; if so, whether differential treatment was justified.
• Whether the suspension power complied with Article 6(1) and the common law rules of natural justice given the lack of prior representations, lack of appeal and possibility of indefinite deprivation pending criminal proceedings.
• Whether the Secretary of State had discharged the Public Sector Equality Duty in making the Regulations.
• Whether any incompatibility could be remedied by interpretive powers under s.3(1) Human Rights Act 1998.

Court's reasoning (concise):

• The court accepted that pension rights engage A1P1 and that Article 14 applies to discrimination in enjoyment of those rights. There was a relevant comparator: (a) retired NHS members subject to suspension on charge and (b) current NHS employees (and other public servants) who, although facing similar allegations, do not have pay suspended in the same manner and have different procedural safeguards. The court found the differential treatment was not objectively and reasonably justified. The suspension on charge, by reference to the presumption of innocence and the purpose of forfeiture as a penalty following conviction, went beyond the policy underpinning the forfeiture power and was manifestly without reasonable foundation.
• The lack of appropriate procedural safeguards (initially no prior representations, no right of appeal and an unfettered discretion exercised by a decision-maker with a vested interest) meant the measure also breached Article 6(1) and the rules of natural justice. The judge considered that a full right of appeal would be necessary to cure the Article 6(1) defects but even that would not cure the Article 14/A1P1 incompatibility.
• The Secretary of State had failed to have due regard under the Equality Act 2010 s.149 to the impact of the suspension power on older and disabled members; no equality impact assessment was carried out and the decision‑making process did not reflect the rigour required by the PSED.
• The court could not read into the Regulations under s.3(1) HRA provisions sufficient to render them compatible with Convention rights.

Remedy:

• The court granted declaratory relief and quashed the provisions of the 2019 Regulations enabling suspension of pensions after charge and prior to conviction.

The claim is allowed. The court quashed the provisions of the 2019 Regulations that permit suspension of NHS pension payments upon charge (prior to conviction). The suspension power, as introduced, unlawfully discriminated in breach of Article 14 read with Article 1 Protocol 1 ECHR; it was compounded by procedural unfairness contrary to Article 6(1) and the common law rules of natural justice, and by a failure to comply with the Public Sector Equality Duty (s.149 Equality Act 2010). The incompatibilities could not be remedied by interpretation under section 3(1) of the Human Rights Act 1998.