Mr. Andrew Kelly:

When the Bill was published initially, the board looked for advice on whether it would be covered. In the very early stages there was uncertainty, which went on for about two months maximum. The board sought advice from senior counsel on whether the IBTS pensions scheme fitted the definition of a public service persons scheme within the terms of the FEMPI legislation. The view of senior counsel was that it did not, that it was not a public service pensions scheme within the terms of the legislation. Under our scheme, on retirement, the trustees calculate a person's pension based on the final salary given to them by the employer. An individual member of staff retired and the employer told the trustees that the retirement pension was to be based on final salary which had been cut a number of months earlier. The person concerned challenged this in the High Court saying, "If you cut my pay on the basis of FEMPI 2, then that Act should also apply in giving me the benefit of a grace period and retiring on a pension based on pre-cut salary." The trustees said, "Not according to our trustee rules; therefore, it is to be based on final salary." The person concerned did not accept this and took a case to the Ombudsman. He supported her case and also determined that we had a public service pensions scheme. The trustees then had no option but to appeal the decision to the High Court. Even though he said at the beginning of his judgment that he was not going to deal with the substantive issue, the President of the High Court asked the hypothetical question whether the Oireachtas had intended to exclude the IBTS from the FEMPI legislation when it was brought forward and, using section 5 of the Interpretation Act 2005, decided that it had not been its intention to do so. He, therefore, decided that it was a public service pensions scheme. He went on to deal with the individual case later in the judgment.