In R (British Medical Association) v Secretary of State for Health and Social Care, the British Medical Association challenged a new regulation promulgated by the Secretary of State which provided for the pension of an NHS employee to be suspended on being charged with a serious offence. Previously, NHS pension rules, like other public sector pension schemes, only allowed for forfeiture of a public sector employee’s pension on conviction of a serious offence. The BMA argued that rolling back the interference with an employee’s pension from conviction to charge was a breach of Article 14 read together with Article 1 Protocol 1 of the ECHR, Article 6 and the common law principles of natural justice. The BMA also argued that the Secretary of State failed to comply with the Public Sector Equality Duty.
Mrs Justice Andrews found that the BMA established these breaches. There was a difference of treatment which was not justified. The suspension power offended against the presumption of innocence; this would require a significant public interest which was absent here. Further, the suspension power was overbroad. The absence of procedural safeguards, including the absence a procedure for prior representations and a full merits appeal, meant the regulations fell foul of Article 6. Mrs Justice Andrews also found that the absence of any assessment of the potential effect on the suspension power on elderly and disabled members of the NHS pension scheme meant the Secretary of State had not fulfilled the Public Sector Equality Duty.
The judgment can be found here.
Fenella Morris QC and Jennifer Thelen acted for the BMA.