Why Cedaw is vital for UK pensions fairness

0:02FT Adviser Editor: Welcome to the latest FT Advisor Editor's podcast with me, Simini Kiriakou. You could not have missed the headlines in months and years past about the continued fight for compensation over state pension age rises. This has been affecting 50s born women in particular. But underlying all of these debates is the ongoing issue over fairness and equality, whether that relates to pay equality or job opportunities or equal treatment in law between the genders. Joining us today is Dr Jocelyn Scott. She's a human rights barrister, author and filmmaker. Dr Scott, thank you very much for joining us. Thank you.

0:39FT Adviser Editor: The former Australian judge has also authored a report on the discriminatory nature of the treatment of the 3.6 million women that have been identified as being the victims of the state pension age change. Gaining prominence in the 1980s as one of Australia's most outstanding female barristers, Dr Scott also founded the feminist publisher Artemis and was a member of the women's electoral lobby in both Canberra and Sydney. She's appeared before UK parliamentarians and the press to explain what CEDAW in law represents and now she's here to talk to us about her life's work, what motivated her to help Britain's 50s born women and what CEDAW in law means for pensions fairness overall.

1:21FT Adviser Editor: So what made you such a strong campaigner for women's rights and what made you follow that particular branch of law?

1:28Dr Jocelynne Scutt: I was a fortunate child because I had two grandmothers who were extremely strong. My maternal grandmother was a delegate to the first ever Labor Women's Conference in 1911 and my mother and my aunt, my father, was always supportive. And when I went through law school, I knew all the way through law school that there was something very wrong. with the way that the law was. And then I studied law in the United States at the University of Michigan, Ann Arbor, and that was a terrific experience. Lawyers in the United States, when they're good, are really, really good. And studying at Michigan was terrific.

2:13Dr Jocelynne Scutt: There was a legal women's group. I went to a major conference in Houston that was about women's rights and the Students Law Society paid for me to go because I wrote reports back. And then, I mean, I studied in Germany and then I went back to Australia and I did law reform for some time and then I went to the bar. And it just struck me that there is so much that can be done constructively through the law. And I'm a writer. So, of course, I have written critically about the law, and I would hope constructively about the law. And perhaps I should say that my latest book is a collection, Women, Power and Autonomy, Rights, Respect and Representation in and society.

3:10Dr Jocelynne Scutt: And I've got a number of different women from different countries to write various aspects of the fight to get into the iron and steel industry that was in Australia, about Lolita and the really negative nature of that novel and how it hasn't been properly recognised and also about women's property rights in various respects. And it seems to me that there is so much that can be done to improve society and improving society by elevating women's rights so that we are truly equal. It means that society as a whole is benefited because I think it must be terribly boring in the end to be a man, to live living in a world where women aren't equally respected, equally recognised in law.

4:11Dr Jocelynne Scutt: And I guess that from my own point of view, there's so much that can be done creatively with the law. And so I've gone back to the bar in order to pursue it.

4:24FT Adviser Editor: Sounds fascinating. And I remember reading in your biography, you used to say that around the dinner table, your family, your father and mother would actively encourage discussions on sort of deep and serious topics. You know, I mean, this is something that's lacking. We don't discuss finance around the dinner table or law or aspects and get into debates. I mean, what sort of, could you talk about the impact of those dinner table talks on you?

4:50Dr Jocelynne Scutt: Yes. Well, I can remember my father, for example, he would listen to Parliament on the radio and come running and saying, come and listen, come and listen. And then around the dinner table, again, I was so fortunate because we were surrounded by books. And we were living in circumstances where debate was what you did. You had a discussion and you might have a difference of opinion, but you talk it through. and we talked about all sorts of things, particularly about literature because my mother was very literary orientated, but also about politics. And I can remember having an argument with my maternal grandmother in her house in a suburb of Perth, Swanbourne, in Devon Road, and we were in the dining room.

5:41Dr Jocelynne Scutt: I can still see it. And I won this debate, you see, and she said to me, Jocelyn, you'll just have to be a lawyer. I was 11 or 12 and it stuck in my mind. And when the economics teacher at school said to me that I should put in for a teacher's scholarship, I did out of deference to him, but I knew that I was not going to pursue it. And when I got the scholarship and I sent it back, I remember my father saying, now you are sure this is what you want because I was going to university. I got the scholarship to university to do the law and I was determined and I did law. and I've never, ever regretted it.

6:20Dr Jocelynne Scutt: And I think that it's so stimulating and so engaging and women have fought so long for centuries to ensure that the law can be equal.

6:33FT Adviser Editor: Now, the biggest question I want to ask is why does it always seem to be a fight? Why do women always have to be fighting for things? Haven't we got equality in law?

6:42Dr Jocelynne Scutt: I think that one of the problems is that when we gain an advance, often there's a negative reaction to that and therefore we have to fight the battle again. And sometimes in the law, what happens is that a change is instituted. I can give an example in another area in relation to provocation. There were changes to that area of law. And yet when an appeal went up to the Court of Appeal, the Clinton case, what happened was that the appellate court reinstituted provocation through that case, calling it, as the name change was, loss of control. But they, by the backdoor, reinstated provocation. And I think one of the problems is that when a law reform is made, those who will interpret it as judges were not at law school when that change was made.

7:46Dr Jocelynne Scutt: Take sexual offences, the 2003 Sexual Offences Act. The judges who were interpreting and applying that act weren't at law school when that act was passed. Therefore, they were not taught on that act. They were taught on the previous law. And we need, therefore, to ensure that in every law reform, there is a provision that says there will be compulsory education and training for judges and all who are participating or working in that area.

8:21FT Adviser Editor: Because otherwise there are inconsistencies, right? And you were talking earlier to me about soft laws. Yes. and why you really don't like that particular use of the language. Could you explain a little bit more about what you mean by the soft laws?

8:35Dr Jocelynne Scutt: Yes. The notion is that domestic law, law that's passed through the parliament, is substantive law and law that matters. But international law, like the Convention on the Elimination of All Forms of Discrimination against women, CEDAW, or the Race Discrimination Convention and other treaties, that that's soft law, which means that it doesn't have the same power or impact or substantive effect as domestic law. But one really has to ask why, because the country has signed up, the country has ratified, the country has said that we will obey this law, that we'll implement it through our domestic law, which of course the CEDAW hasn't been done in this country yet.

9:30Dr Jocelynne Scutt: But nonetheless, whether it's in the domestic law or not, there is a lawful agreement by the country that this law will be followed, that this law is a part of our panoply of laws. But the notion that something is soft means, well, it's not as... Watertight. Exactly, yes. And the tragedy of it is that so much of that international law is useful and can be helpful to the judiciary, to the lawyers, in terms of implementing what has been agreed is a proper standard of legal principle and yet we say, well, that's soft law. It's not as consequential.

10:24FT Adviser Editor: How did you get involved with CEDAW?

10:27Dr Jocelynne Scutt: Way back in, it must have been, it was 2020, they got in touch with me and interviewed me in relation to a tribunal that they were holding on the implementation of CEDAW. That is, because the Convention on the Elimination of All Forms of Discrimination Against Women was signed up to by the United Kingdom in 1981 and ratified some years later, I think 86, 84 or 86, that meant the ratification that the country, that that law would be implemented through domestic law. But it hasn't been. And so the tribunal was held to call for evidence and to hear from witnesses and then to write up a report. Now, I initially came on as a witness and then they asked me to be on the panel of five and to chair the panel of five.

11:26And I wrote the report on CEDAW in law and how it ought to be implemented and what the issues were in the United Kingdom for women that would be assisted by introducing

11:41Dr Jocelynne Scutt: CEDAW into domestic law. And then subsequently, another tribunal was held where I chaired the tribunal alone on the 1950s women and the pensions issue for the 1950s women and wrote the report.

11:59FT Adviser Editor: Yes, and I know you've appeared before all parliamentary groups on this, but could you just briefly outline the differences between the 1950s women who are calling for CEDAW-in-law to be applied in Britain for 1950s-born women and for fairness and state pensions and the WASP campaigns? Because sometimes it's like two different groups.

12:24Dr Jocelynne Scutt: Yes. CEDAW-IN-Law has always held out a hand to the WASP women, which is a corporate group. They are, well, they've been a corporation and people have to join with a joining fee. But that coming together has not come to pass. And the difference is that at the present time, the WASP campaign is based on the Ombudsman's report, which was simply focused on delay and whether there was any delay in notifying the 1950s women of this change. that is, maladministration would apply if they weren't informed. Whereas CEDAW in law has looked at the discriminatory elements and impact of that 1995 Act and the subsequent updates of it, 2007, 2011, for example, because the view of CEDAW in law is that we can't ignore the discriminatory nature and impact of that change and what impact it has and what it's wreaking at the present time.

13:50FT Adviser Editor: So it's a discrimination argument rather than a maladministration argument?

13:56Dr Jocelynne Scutt: Well, it's both really, because there certainly is maladministration in the failure to notify and the delay in notification of any woman impacted. But the discriminatory elements are really fundamental and in the view of Cedar and Law should not be put to one side or ignored.

14:27FT Adviser Editor: I know you've spoken to politicians before about this, but have you been able to secure, for example, a mediation session with the Secretary of State for Work and Pensions?

14:38Dr Jocelynne Scutt: No. The mediation issue is really vital because in the end, the only way this issue will be resolved is by the parties getting together. And the parties are clearly the 1950s women or representatives of them. and the government authority, who is the Secretary of State for Work and Pensions, the assistant to the secretary, Emma Reynolds, when she was in post, did consult with the WASP women and said that she would be consulting with other groups. But Cedar-in-law has not yet been consulted with and, of course, she's moved to another position now. But the reason that mediation is really important is that this has been an issue that's been on the table for a very long time.

15:32Dr Jocelynne Scutt: And it really won't go away in terms of the impact and the effect on the 1950s women who, of course, are dying and who are in real financial straits. and a big element of the financial straits is this issue of the pensions. So that from, I would have thought from a government point of view, there is wisdom in negotiation, in mediation. And what that would mean is that the disparate groups really have to come together first. And CEDAW and Law has invited WASPI to come together to work on a position that could go into mediation with the government. And the idea is that going in with an ambit claim and the government will go in with its ambit claim and then you negotiate so that you can come to a reasonable outcome so that the government can be happy with it and the 1950s women also.

16:36FT Adviser Editor: Sure. I mean, the government will talk about the burden on taxpayers, but what would be your arguments to that? because the government say, well, they can't just look after sort of women in their sort of 60s and 70s, they have to look after the whole population.

16:49Dr Jocelynne Scutt: There is an obligation on the whole population, that's true. However, the issue here is that when that 1995 Act change came about, and women weren't notified, that the 1950s women kept paying in their national insurance contribution and they were paying it in on their understanding that when they hit 60, that was the age at which they would gain the pension. Now, that didn't happen. So in fact, the money is there because they put the money in. And in the ordinary course, if the 1995 change had not come about, the women would have gained their pensions at 60. But that's not what's happened. So the government has benefited from all those payments in that the 1950s women made without having the equivalent payment out.

17:48Dr Jocelynne Scutt: And we all know that when you pay into a pension scheme, you're paying in for the future. And so when you pay in, your money then is going out to pay for those.

18:00FT Adviser Editor: The current pensioners, yeah.

18:01Dr Jocelynne Scutt: Exactly, who've hit the pension age. But when you hit the pension age, you don't expect anybody to say, well, look, sorry, the money's not there, because you'd be asking, well, where is the money?

18:13FT Adviser Editor: Where's the future obligations going on?

18:14Dr Jocelynne Scutt: Yes, I paid in. And this is an economic issue. There's no question about that, because the discrimination comes about in that the 1950s women were singled out as the transition group. And what they had to do was reorganise their jobs. They had to reorganise their retirement plans and they were not notified in such a way or at a time that they could do that with any

18:51Dr Jocelynne Scutt: proper organisational capacity.

18:53FT Adviser Editor: And I suppose even getting a letter doesn't necessarily mean that much to you if you don't understand what your steps are, if you don't understand how it will impact you. You might look at it and think, well, that's something that's going to happen in 10, 20, 30 years time. But it's not set out clearly. This is what you have to do. This is how it's going to affect you. Here's some next steps. Here's some advice. Here's some people you can go to.

19:13Dr Jocelynne Scutt: Well, we had evidence before the CEDAW Tribunal that women were still getting notifications as if they would be paid out at 60. But the point here was that And the evidence before the Judiciary Review that the CEDAWIN Law Group ran was that it was only in 2007 that there was some sort of notion within the Department of Work and Pensions that letters or some mode of notification should start happening. And, of course, interestingly, it was at a time that men were actually now going to be affected because the age was being raised for everyone from 65 to 66. But the point here is that it's direct discrimination on the grounds of age because it was the 1950s cohort that was directly impacted by this change.

20:16and it was direct discrimination on grounds of sex

20:21Dr Jocelynne Scutt: because it was women who were going to be impacted. And in that judiciary view, I have to say with the greatest respect, at least one of the judges said, had the temerity to say, but it's not women who are being discriminated against, it's men because the men were getting it at 65 all the way along. In 1940, the change was made to the State Pensions Act and that was when the distinction was brought in. Women would get it at 60 and men would get it at 65. But the change in 1995 did not impact on men in one iota. They were going to continue to get it at 65. Their arrangements for retirement, their arrangements for their job were still in place.

21:07Dr Jocelynne Scutt: They didn't have to reorganise anything. Some men, of course, were impacted because they'd been depending on their wives getting it at 60 and suddenly they found that wasn't going to happen. So there does seem to have been a lack of understanding, really, of discrimination law with the greatest respect and with how it ought to be interpreted in this particular instance. And the other issue is legitimate expectation, that in public law there's a principle of legitimate expectation. And here, in my opinion, there was a legitimate expectation that the women be notified because it had a direct impact on their financial and their economic position.

21:57Dr Jocelynne Scutt: And once your financial and economic position is what's going to be impacted, in my opinion, it's clear that the government had an obligation to notify. And anyway, it was so easy for them to do it because we all get a P60. Every year if we're in paid employment, we get a P60. They could have easily put a general message to everybody on the P60 advising of this change.

22:25FT Adviser Editor: But they even could have... Sent out yearly letters just to remind people before the tax year ends.

22:29Dr Jocelynne Scutt: Yeah, that's right. Exactly, yes. The P60 is the document that comes to you to tell you what you've earned and where the money's gone. if it's gone into a pension or a superannuation. But the thing there was that they could have targeted every single woman in this demographic through their P60s. And in the Judiciary Review, there were sort of mutchings about, oh, well, it was all too difficult. It wasn't too difficult. In 1995, email had actually come in, and we were not children or novices in terms of the internet. Of course, we've progressed hugely since then, but also there is the post.

23:15FT Adviser Editor: By post, I remember, because one of my summer jobs was to, in one particular local government pension scheme, was to send out the letters. So I was putting them into the envelopes and sending them out. And so many were returning, no known address, not at this address. and I remember saying to the guy who was heading at the time what what to do he said we've got to try and find where these women are because there were a hundred or so letters that just returned to us unopened he said we're going to try and find these women he says so can you stay on an extra week and try and hunt them down because they need to receive this information and so I remember like spending ages we were trying everything trying to look at their old employers and GDPR wasn't around then it made it a little bit easier I remember using a fish reader which no young person ever has ever used a speech reader before just to try and find like different addresses or different ways of being able to contact them because I remember my boss at times he's long past now but he said we've got to tell these women but it was just it was all post and the postal services as we know you know not always updated systems aren't updated right no and sometimes

24:24Dr Jocelynne Scutt: email I mean email bounces because people have changed their email but you see come back to the 1995 Act. And when this, what was said again in that Judiciary Review that was run by CEDAW in law, it was said that all stakeholders were consulted about the 1995 change, the 1995 Act. The principal stakeholders, the women were not consulted. There was no consultation whatsoever with the women. There was also no impact statement done. There's a bit of fudging around about that and contentions that some sort of a report was done. It was not a proper impact statement and that should have been done. And the other thing is that in 1995, this country had already signed up to CEDAW.

25:22Dr Jocelynne Scutt: And one of the principles under CEDAW is that when you've ratified, then you really need to do a review of all legislation to see whether it conforms to CEDAW or not, the Convention on the Elimination of All Forms of Discrimination Against Women. And also, the 1995 Act directly conflicts with CEDAW. So one wonders how it is that that act came into being when already the government had 10 years before ratified CEDAW. It means that they were ignoring what their international obligation was and remained.

26:04FT Adviser Editor: So if the UK government still refuses to enter into mediation, or let's not say refuses, that sounds very hard, if it's still unable to and to mediation, what's the next step? I mean, do you end up taking this to the ECHR or is there a higher international authority to go to?

26:25Dr Jocelynne Scutt: The problem is that there ought not to be a need for any institution of legal proceedings because the principle is that where a dispute exists And there can be no doubt that there is a dispute. I mean, we just have to look at the number of early day motions in Parliament, the number of petitions, the number of people who signed petitions. Sir George Howas, when he was a member of Parliament, he retired recently, set up a group of members of Parliament that had a considerable number of the leaders of the smaller political parties in it. That group was advocating mediation. There was a debate about it in Westminster Hall.

27:21Dr Jocelynne Scutt: There have been other debates and so on. So there's no question there's a dispute. And when there is a dispute, one does not have to institute legal action with the expense that that incurs. Yeah, mediation is a principle and the government, the present government has said that it endorses the notion of mediation pre the institution of legal action.

27:48FT Adviser Editor: Well, let's hope that it endorses it by action.

27:52Dr Jocelynne Scutt: Well, yes. And CEDAW-IN-Law is continuing to run a campaign to endeavour to ensure that the Secretary of State for Work and Pensions does see the legitimacy and the wisdom of entering into mediation because the women will not go away. And there seems to have been a notion, I think, that 1950s women somehow didn't really matter, wouldn't fight or just disappear off the face of the earth effectively. Well, there seems to have been a lack of recognition that 1950s women came to adulthood in the 1970s. Now, I don't agree with the waves of the women's movement because the women's movement has always been active.

28:39Dr Jocelynne Scutt: There's never been a period when they haven't. But in the 1970s, there was huge activism by women, and those women will not go away.

28:50FT Adviser Editor: No, no, indeed. As Kipling said, the female of the species is indeed more deadly than the male.

28:57Dr Jocelynne Scutt: And hopefully more constructive as well, because the notion of mediation is a constructive approach to a problem that is a superating sore that has to be remedied. So, Dr.

29:12FT Adviser Editor: Scott, let's look at what happens post-mediation. Let's say we've got the mediation that's been agreed to. What are the desired outcomes?

29:20Dr Jocelynne Scutt: From the cedar-in-law position, there ought to be a lump sum payment to all the women who've been impacted. Now, that lump sum payment would be determined on a pro rata basis because clearly if somebody got their pension three months after their 60th birthday, they won't be getting a lump sum payment in the same terms as somebody who received the pension on their 64th birthday or 65th. So there'd be a lump sum payment determined on a pro rata basis. And then a top-up of the pension again worked out on a pro rata basis and also free medical backup, free dental and some other elements because these women are being impacted from a health point of view.

30:23Dr Jocelynne Scutt: And from the country's point of view, it's better if they have the support through the health system and through the dental system and through a lump sum payment and a top up to the pension, because that will mean that they maintain their health at a proper level and are not a bigger burden on the National Health Service, for example. Yeah, absolutely.

30:46FT Adviser Editor: Well, thank you very much, Dr. Scott, for coming in and talking to us. Thank you. It's been a pleasure. And thank you for listening. For more news and views, visit ftadvisor.com.

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