The Judicial Pensions (European Court of Human Rights) (Amendment) Order 2025
This Order amends the Judicial Pensions (European Court of Human Rights) Order 1998 to update pension provisions for judges of the European Court of Human Rights.
The amendments clarify the interaction between UK pension schemes and the Council of Europe scheme, ensuring that ECHR judges retain pension benefits under the UK's Judicial Pensions Regulations 2022, even if they opt into the Council of Europe's scheme.
It also defines 'Pensionable Earnings' for ECHR judges and ensures their UK judicial office is treated as a qualifying office under the 2022 Regulations.
Arguments For
Improved clarity and consistency: The amendments clarify the interaction between UK pension schemes and the Council of Europe's pension scheme for ECHR judges, reducing ambiguity and potential disputes.
Protection of judges' pension benefits: The changes ensure that ECHR judges who were previously members of the UK judicial pension scheme maintain their entitlement to benefits, regardless of their choice regarding the Council of Europe's scheme.
Streamlined administration: By clarifying the rules, the administrative burden on both the UK government and ECHR judges is reduced, improving efficiency.
Legal basis in Human Rights Act 1998: The Order is made under the powers conferred by section 18(6) and Schedule 4 of the Human Rights Act 1998, providing a strong legal foundation for the changes.
Arguments Against
Potential for unintended consequences: The amendments introduce new rules to a complex area, raising the possibility of unforeseen issues arising in practice.
Cost implications: While no significant impact is foreseen, there might be minor administrative costs associated with implementing the changes.
Alternative approaches: Simpler ways to address the issues might have existed, potentially involving less extensive amendments to the underlying legislation.
Lack of broad consultation: The impact assessment suggests minimal impact; however, broader stakeholder engagement before enactment may have further minimized the risk of unintended consequences.
- Citation, commencement and extent (1) This Order may be cited as the Judicial Pensions (European Court of Human Rights) (Amendment) Order 2025 and comes into force on 3rd April 2025. (2) This Order extends to England and Wales, Scotland and Northern Ireland.
This section provides the Order's official title, effective date (April 3rd, 2025), and geographical scope, covering the entire United Kingdom.
- Amendment of the Judicial Pensions (European Court of Human Rights) Order 1998 The Judicial Pensions (European Court of Human Rights) Order 1998 (“the 1998 Order”) is amended in accordance with this Order.
This section states that the Order amends the Judicial Pensions (European Court of Human Rights) Order 1998, referred to as 'the 1998 Order', by adding or altering some parts within the existing 1998 Order.
- Amendment to article 2 In article 2— (a) after the definition of “the 1993 Act” insert— ““the 2009 Resolution” means the Council of Europe’s Resolution CM/Res(2009)5 on the status and conditions of service of judges of the European Court of Human Rights and of the Commissioner for Human Rights. “the 2017 Regulations” means the Judicial Pensions (Additional Voluntary Contributions) Regulations 2017 “the 2022 Regulations” means the Judicial Pensions Regulations 2022.”; (b) after the definition of “ECHR service” insert— ““Pensionable Earnings” has the meaning given in regulation 16 of the 2022 Regulations.”.
This section details amendments to Article 2 of the 1998 Order.
Part (a) adds definitions for the 2009 Council of Europe Resolution, the 2017 and 2022 Judicial Pensions Regulations.
Part (b) adds a definition for 'Pensionable Earnings', referencing the 2022 Regulations.
- Amendment of article 3 In article 3— (a) for “or the 1993 Act” substitute “ the 1993 Act or the 2022 Regulations”; (b) after “Part 1 of the 1993 Act applies” insert “ or becomes, or ceases to be, a member of the judicial pension scheme constituted by the 2022 Regulations”.
This section outlines amendments to Article 3 of the 1998 Order.
Part (a) includes the 2022 Regulations in a reference to applicable legislation, and (b) adds a criterion for membership of the judicial pension scheme established under the 2022 Regulations.
- Amendment of article 4 In article 4— (a) in paragraph (3)(a) for “articles 5 to 7” substitute “articles 5, 6 and 7”; (b) after paragraph (3) insert— (4) Articles 5A, 6 and 9 of this Order apply, for the purposes of the 2022 Regulations, to an ECHR judge who, immediately before being appointed as an ECHR judge, was a member of the judicial pension scheme constituted by the 2022 Regulations and who, upon being appointed as an ECHR judge, elects not to become a member of the pension scheme offered by the Council of Europe in accordance with Article 10 of the 2009 Resolution. (5) Where the ECHR judge becomes a member of the pension scheme offered by the Council of Europe in accordance with Article 10 of the 2009 Resolution, that judge shall be deemed to have opted out of the scheme constituted by the 2022 Regulations in accordance with regulation 14 of the 2022 Regulations.
This section details amendments to Article 4 of the 1998 Order.
Part (a) corrects article numbering, and (b) adds two new paragraphs (4 and 5).
These paragraphs define the conditions under which an ECHR judge's continued membership in the UK pension scheme is affected by their choice to enroll in the Council of Europe's pension scheme.
- Insertion of new article 5A After article 5 insert— 5A. During the whole of their ECHR service, the ECHR judge’s Pensionable Earnings, for the purpose of the 2022 Regulations, shall be treated as being those which would be calculated on that judge’s behalf if the judge had not been appointed as an ECHR judge and had continued to perform the duties of the UK judicial office.
This section inserts a new Article 5A into the 1998 Order.
This new article specifies how 'Pensionable Earnings' are calculated for ECHR judges under the 2022 Regulations, using the judge's UK salary as a benchmark.
- Amendment of article 6 In article 6— (a) for “1981 Act and” substitute “1981 Act,”; (b) after “the 1993 Act” insert “ regulation 9(2) of the 2017 Regulations and Part 9 of the 2022 Regulations”.
This section outlines amendments to Article 6 of the 1998 Order.
Part (a) clarifies grammatical structure, and part (b) adds references to the 2017 and 2022 Regulations to an existing list of applicable acts and regulations.
- Insertion of new article 9 After article 8, insert—
- Judicial Pensions Regulations 2022 The ECHR judge shall, during the whole of the judge’s ECHR service, be treated as holding, and serving in, the UK judicial office, which shall be treated as a qualifying judicial office.
This section inserts a new Article 9 into the 1998 Order.
It clarifies that for the purposes of the 2022 Regulations, ECHR judges are considered to be serving in their UK judicial office, and that this office qualifies under the 2022 Regulations.
Explanatory Note (This note is not part of the Order) This Order amends the Judicial Pensions (European Court of Human Rights) Order 1998 (“the 1998 Order”), made under the powers conferred by section 18(6) of, and Schedule 4 to, the Human Rights Act 1998. In particular: Article 5 updates the 1998 Order so that an ECHR judge may continue to accrue benefits in the pension scheme constituted by the Judicial Pensions Regulations 2022 (“the Judicial Pension Scheme 2022”) in circumstances where the judge is a member of that scheme immediately prior to their appointment as an ECHR judge. It also provides that, if the ECHR judge opts to become a member of the pension scheme offered by the Council of Europe, then they will be deemed as having opted out of the Judicial Pension Scheme 2022. Article 6 inserts a new provision which establishes that, for the purposes of the Judicial Pension Scheme 2022, the ECHR judge’s pensionable earnings will be treated as being those that the judge would have received, had they continued to perform the duties of their UK judicial office. Article 8 inserts a new provision which establishes that, for the purposes of the Judicial Pension Scheme 2022, the ECHR judge will be treated as holding, and serving in, their UK judicial office, and that their UK judicial office will be treated a qualifying judicial office for the purposes of the Judicial Pensions Regulations 2022. A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen. An Explanatory Memorandum has been published alongside this Order on http://www.legislation.gov.uk.
The Explanatory Note summarizes the Order's key changes, focusing on the impact of Articles 5, 6, and 8 on the Judicial Pensions Regulations 2022 for ECHR judges' pension benefits.
It also states that a full impact assessment was not deemed necessary due to the lack of predicted significant impact on any sector.