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

A pension-scheme power permitting suspension of benefits merely because a member has been charged with a serious offence is unlawful where it operates before conviction, without adequate limits, review or appeal, and may retrospectively facilitate forfeiture. Such a power can offend the presumption of innocence, Article 14 read with A1P1, and the requirements of natural justice and Article 6. The court must assess the measure as enacted, including its procedural safeguards. A discretionary power is unlawful where its structure prevents fair consideration of material matters, including the prospects of conviction, forfeiture and hardship. A public authority must also comply substantively with the Public Sector Equality Duty when introducing the scheme, by consciously considering the likely impact on protected groups.

The British Medical Association challenged amendments to the NHS Pension Scheme made by the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019. The amendments empowered the Secretary of State to suspend pension benefits after a member was charged with an offence which might lead to forfeiture, without an automatic right of appeal, time limit or periodic review.

The BMA alleged breaches of Article 14 read with A1P1 and Article 6 ECHR, the common-law rules of natural justice, the Public Sector Equality Duty under section 149 of the Equality Act 2010, irrationality and the Tameside duty of inquiry. The central issues were whether the suspension power was inherently unlawful and whether the Secretary of State had lawfully considered its equality implications.

1. Claim allowed. The court granted declaratory relief and quashed the provisions enabling suspension after charge and before conviction.
2. The existing forfeiture policy was directed at preventing a person convicted of a serious offence committed in connection with public service from continuing to receive a public pension. A power to suspend after conviction, pending a forfeiture decision, was consistent with that policy and proportionate. A power exercisable on charge alone went materially beyond it.
3. The charge-stage power offended the presumption of innocence. It could suspend income for an indefinite period, retrospectively expose suspended payments to forfeiture, and place the practical burden on the member to establish why payment should resume. The Secretary of State could not fairly assess the prospects of conviction or forfeiture when the relevant evidence and mitigation were unavailable.
4. The measure was manifestly without reasonable foundation and inherently unfair for the purposes of Article 14 read with A1P1. The Secretary of State’s vested interest and the absence of effective limits, periodic review and a merits appeal made the power incompatible with natural justice and Article 6(1). Judicial review was not an adequate substitute for a full merits appeal in this context. Although prior representations might have cured one procedural defect, they could not cure the inherent defects in the power itself.
5. The comparison between retired NHS members and serving NHS employees was sufficiently analogous for Article 14 purposes. The latter could not ordinarily lose salary merely because they had been charged, whereas the former could lose their principal income without an appeal on the merits. The distinction lacked objective and reasonable justification.
6. The Secretary of State had failed to comply with the Public Sector Equality Duty. He did not consciously and rigorously consider the likely disproportionate impact on elderly and disabled pensioners before introducing the power. The statutory duty could not be postponed until an individual suspension decision.
7. The Tameside ground added little beyond the successful equality and human-rights grounds. The failure to investigate protected-characteristic impacts was unlawful under the Public Sector Equality Duty, but there was no separate general obligation to formulate the detailed procedure before enacting the regulations.