Public Service Pensions and Judicial Offices Bill [HL]
Monday 19th July 2021
(3 years, 11 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text
Public Service Pensions and Judicial Offices Bill [HL]
Tuesday 7th September 2021
(3 years, 10 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text
Viscount Younger of Leckie (Con)
My Lords, the Public Service Pensions and Judicial Offices Bill consolidates and strengthens a common UK legal framework for pensions across all the main public services—that is, the NHS, the judiciary, the police, firefighters, the Armed Forces, teachers, local government and the Civil Service. The Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement that are among the best available on a fair and equal basis. In addition, the Bill includes measures that will address resourcing challenges facing the judiciary, recognising the unique constitutional role of judges. The Bill will also lead to the creation of a new UK asset resolution public service pension scheme for the beneficiaries of the existing Bradford & Bingley and NRAM—that is, Northern Rock —pension schemes.
I will start with the measures that relate to ensuring fairness and equality across public sector pensions, but first I will set out the wider context for reform. As your Lordships will recall, in June 2010, supported by cross-party consensus on the need for the greater sustainability and transparency of public sector pensions, the coalition Government established an Independent Public Service Pensions Commission chaired by the noble Lord, Lord Hutton of Furness. The commission undertook a fundamental structural review of public service pensions. This review was underpinned by a set of principles against which the options for reform were judged. These principles were that the measures should be affordable and sustainable, adequate and fair, supportive of productivity, and transparent and simple. These principles are just as important today as they were then, and they highlight the need to achieve greater fairness between lower and higher earners and for the taxpayer, as well as the future sustainability and affordability of public sector pensions.
Following that review, the Government introduced a number of key changes. Pension benefits would no longer be based on an individual’s final salary, but instead on career average revalued earnings. Member contribution rates were increased and the normal pension age was linked to the state pension age for all schemes, except those specific to the police, firefighters and the Armed Forces. These changes achieved greater fairness for low earners by giving many a more generous pension. In addition, the reforms will save taxpayers an estimated £400 billion over the following 60 years.
Having provided this background, I will turn to the Bill’s specific measures on the remedy. Prior to the 2015 reforms, the Government agreed, following negotiations with trade unions, to protect the pensions of those closest to retirement. They did this by allowing those members within 10 years of retirement in most public service pension schemes to remain in the final salary schemes, instead of being moved to a career average scheme. This step was known as transitional protection. However, in 2018 the courts found that this step unlawfully discriminated against younger members. Although the legal challenge was specific to the judicial and fire schemes, the Government recognised the wider implications across all public service schemes. We therefore began a thorough programme of work to identify and implement a robust remedy. This Bill brings that remedy into effect and its measures follow public consultations in 2020 and government responses earlier this year.
For the remedy period—that is, from April 2015, when the reforms were implemented, to 31 March 2022—all eligible members will be given a choice between legacy and reformed scheme benefits. For the majority of members that choice will be made at retirement, when it will be clearer which scheme is most beneficial to each individual. This is known as a deferred choice and was the preferred option in the majority of consultation responses. The exception is the judicial schemes, where affected members will make their choice before retirement in a so-called options exercise.
The local government arrangements reflect that the remedy for the discrimination does not require member choice. Instead, protection will be granted to younger eligible members via the extension of the existing underpin, which gives protected local government pension scheme members a guarantee that their reformed scheme pension will be no lower than it was in the legacy scheme. The local government arrangements also reflect that in England and Wales the scheme reforms were implemented a year earlier than other public service pension schemes—from 1 April 2014. For those members who have already taken pension benefits in relation that period, a choice will be offered as soon as is practicable. This measure therefore remedies the differential treatment of younger members as a result of transition protection.
Although the Bill ensures retrospective fairness, it is also right that we ensure that all pension savers are treated equally in future—the so-called prospective remedy. Therefore, from 1 April 2022 all legacy schemes will be closed to future accrual and all those impacted will be placed in their 2015 reforms schemes or, in the case of the judiciary, moved to a new scheme. This measure guarantees that all members within each scheme will be put on an equal footing and underlines our recommitment to the principles of the 2015 reforms. Local government workers have already moved to career average arrangements and these schemes will continue after 31 March 2022.
As your Lordships may recall, the Independent Public Service Pensions Commission also recommended that the new public service pension schemes should include a cost ceiling to protect the taxpayer from unforeseen increases in scheme costs. However, the Government chose to go a step further and establish a symmetrical cost control mechanism that also maintains the value of pensions to members when costs fall. The mechanism was designed in such a way that, if the cost of a scheme rises above or falls below specified margins, the scheme rules must set out a process for agreeing how costs can be brought back to target. So, where costs rise above a certain level, benefits are reduced, or where costs fall below a certain level, benefits are improved.
It is right that the additional benefits that members will receive as part of the remedy are considered by this mechanism as a cost, by giving members a choice of benefits. The value of schemes to members will increase and therefore costs will rise. This assessment of the costs of member benefits is precisely what the mechanism was established to do. However, to ensure that no members’ benefits are reduced as a result of this assessment, the Bill contains a measure to waive any results that might lead to benefit reductions. This should mean that no member will be worse off. In addition, the Government have committed that, where benefit improvements are due, these will be delivered.
As I have outlined, the Bill builds on the Public Service Pensions Act 2013 to create an overarching legislative framework for all public service pension schemes. While this piece of legislation is comprehensive, I am sure your Lordships would acknowledge that pension schemes are extremely complex and must be tailored to fit each workforce’s individual requirements. As a Government, we intend that our legislation accounts for those differences, many of which are found in scheme regulations. Therefore, given the level of detail involved, these measures will come before Parliament as statutory instruments for further scrutiny. Furthermore, to demonstrate the approach to secondary legislation, I pledge to deposit policy statements in the House Library in the coming weeks for further scrutiny.
Allow me now to turn to the Bill’s next element: the package of reforms to help address the resourcing challenges facing the judiciary, recognising the unique role that judges fulfil in our constitution. The UK justice system is known across the world for its excellence, objectivity and impartiality. This is due in no small part to the exceptional expertise of our courts, our tribunal judges, our coroners and our valued magistrates.
However, as the structure and operation of our courts and tribunals have developed, so has the resourcing needs of the judiciary. The frequency and volume of judicial recruitment has increased considerably in recent years and, despite recruiting about 1,000 judges and tribunal members per annum since 2018, we have not been able to recruit the full number of judicial officeholders needed across all courts and tribunals, putting considerable pressure on judges and the justice system.
I am sure your Lordships will agree that it is vital that we continue to attract and retain high-calibre judges to secure the proper functioning of our justice system. This Bill brings forward bespoke measures to address some of the current recruitment and retention challenges facing the judiciary. It enables the provision of a new, reformed career-average judicial pension scheme. It increases the mandatory retirement age of judicial officeholders to 75, extends the potential for sitting in retirement to the fee-paid judiciary and puts judicial allowances on a firmer legal footing. Taken together, those measures represent significant steps that will allow us to continue to support our world-class judiciary, for which we are so rightly renowned, to meet the demands of the present day and the future.
I now move to the measures to establish new UK asset resolution public service pension schemes for the beneficiaries of the existing Bradford & Bingley and Northern Rock asset management pension schemes—so-called NRAM. These two schemes cover the pension schemes of the former staff members of both bodies, some of whom worked for in the region of 30 years for each company respectively. These measures are an important step in the Government’s careful long-term management of the financial assets acquired as a result of the 2007-08 financial crisis. The new schemes will provide former Bradford & Bingley and Northern Rock staff members with the assurance that their pensions are secure over the long term. Let me stress that members’ pensions and pension promises will be unaffected by this change. In addition, this measure will ensure better value for the taxpayer through the creation of a more efficient structure for the Government to meet their liabilities towards those two schemes.
There is no doubt that the Bill before the House is complex legislation. It is therefore crucial that all technical changes are robust and legally operable across all schemes. As I mentioned, we are committed to getting the detail right and to giving in-depth consideration to each scheme’s specific circumstances. Therefore, to ensure a comprehensive and effective remedy with consistent application of measures across all relevant schemes, it is expected that some technical amendments will be required during the Bill’s passage. In addition, I am pleased that the Welsh, Scottish and Northern Irish Governments are considering legislative consent Motions to aim to ensure parity across the UK for the areas where legislative competence is devolved.
Our public servants provide vital services on which we all rely. Their unwavering commitment has been particularly vital during the pandemic. We have an obligation to continue to provide guaranteed pension benefits to reward those workers for their dedicated service, but we must do so on a fairer basis, in a way that ensures that pensions are affordable and sustainable in future.
In conclusion, I believe that the package of measures contained in the Bill will bring about long-term sustainable changes that are in keeping with the original principles of the 2015 reforms and provide fairness for members, employers and taxpayers. I hope noble Lords will recognise the Bill as a clear sign of the Government’s responsible approach to public service pension provision, as well as responding to the specific resourcing challenges facing the judiciary. It is for those reasons that I commend the Bill to the House.
Lord Davies of Brixton (Lab)
My Lords, first, I need to mention my entry in the register of interests. I have had an actuarial career, largely advising a range of trade unions about their members’ pension schemes, including most public service schemes covered by the Bill, but I am no longer actively engaged in such work.
I very much welcome the Minister’s careful and lucid explanation of what he rightly says is a complicated subject; it was a fine introduction to the work that faces us over the next few months. I also very much welcome the fact that I have a pensions Bill to get my teeth into, and I will be a committed and active member of the Committee when it considers the Bill. I look forward to interesting and detailed discussions.
I ask the Minister to say something about the expected timetable for passing the legislation. Much detailed work is being undertaken at the moment in parallel with the Bill going through Parliament. The government departments and scheme advisory boards are busy implementing the measures in the Bill, and it would be good to have some idea of exactly how that process will work because, clearly, they need certainty about the legislation’s outcome before they can reach final decisions.
My major issues with the Bill arise from Chapter 1, about public service schemes. The problem is that we have here only part of the story. It deals with the consequences of the decisions in McCloud and Sargeant, which, as the Minister explained, ruled against transitional protection. In its place, we have this remedy to sort out what is undoubtedly a significant mess, but the difficulty is that this is only part of the story of what is happening to public service pensions at the moment. These measures can be fully understood only in the context of the other things occurring at the same time, which the Minister did not mention—they are not in the Bill—but I think we need to understand the context in which this particular part of the picture is being considered.
There is a range of matters. The most significant is getting the 2016 valuation concluded. The 2016 valuation—the results of which should have been implemented some years ago—is ongoing and must still be resolved. At the same time, the Government are reviewing the cost-control mechanism. As explained by the Minister, this is highly contentious, because the Government are attempting to make changes which the unions consider go against the spirit of the Government’s agreement made 10 years ago. At the same time, the Government are reviewing the SCAPE discount rate mechanism—a particular element in the cost-control mechanism.
What is the effect of all those changes on the 2020 valuation? You might think that in 2021 the 2020 valuation would be done and dusted but, as I explained, we have not finished the 2016 valuation yet, so there is a certain amount of slippage here. It is difficult to understand. A sequence of events needs to be taken into account and, unless we have some picture of how this will affect the 2020 valuation, it is difficult fully to assess this legislation without putting it in the context of the other things happening.
One significant additional issue which must be resolved is whether the cost of the remedy this Act sets out is to be met by the members. This is taken for granted by the Government; the members contest it. It is currently the subject of a legal process but it is crucially important. When considering the legislation, we must consider the effect of that issue. So, while this Bill is presented to us as a set of standalone measures, it is difficult to be confident that the solution, the remedy proposed here, is just and workable when all these other factors are still in play.
I have gone over the allotted time; I apologise. I will quickly mention some other issues that I will seek to raise in Committee. We must carefully consider the use of Treasury directions. It raises constitutional issues that must at least be clarified. Concern has been expressed by various groups of employees, most notably the police service and firefighters, that the specific way in which the remedy is being implemented has an adverse effect because of their particular past pension structures.
I am heavily outnumbered here by the lawyers, but finally, I will stray into Chapter 2. Clearly, there is a strong case for the special tax treatment being afforded to the judicial pension scheme, but it raises the possibility of circumstances in which other groups of employees deserve special tax treatment as well. These are all issues that we will have to resolve, or at least discuss, in Committee.
Baroness Janke (LD)
My Lords, I too thank the Minister for his clear and succinct introduction. As he said, this legislation is necessary to remedy the effects of the McCloud judgment relating to the Public Service Pensions Act 2013. I rise to highlight some of our concerns in a number of areas.
The first is discrimination. In introducing the remedy, the Government must be certain that new measures will not produce further discrimination, such as placing a greater burden on newer or younger members of the scheme or reducing the right of part-time workers to make up their pensions by working for longer. This particularly affects women who have worked part-time due to family or caring responsibilities. In their responses to the consultations, some have described, with particular reference to the police and the benefits of the legacy schemes, how the Bill must pay particular attention to discrimination to avoid further long and drawn-out legal cases.
Also, as the noble Lord, Lord Davies, said, it is very important that the changes be just, and there must be trust in government to protect citizens. Promises and commitments already entered into by government must be addressed and cannot simply be brushed aside as being too costly. It will be of great importance to many members that promises made by the Government are honoured. Equally, commitments made by the Government, as agreed in the cost mechanism, have not been acted upon—as, again, the noble Lord, Lord Davies, said—following the 2016 valuation, which should have benefited members. It is worth noting here the comments of the Public Accounts Committee:
“HM Treasury should have foreseen the age discrimination issue that gave rise to the 2018 McCloud judgment, and putting things right will take many decades to resolve. HM Treasury wants members to pay to put this right—at an estimated cost of £17 billion—despite it being its mistake.”
The National Audit Office said in March 2021:
“Employee representatives told us that the review of the mechanism”
because of what has happened at the first valuation
“undermined trust between employees and the Government”.
The recommendation of the House of Commons report on public service pensions stated:
“HM Treasury must prioritise work to quickly resolve the challenges presented by the McCloud judgment and cost control mechanism, in order to give certainty to scheme members and employers, and rebuild the trust lost”.
Other concerns relate to the treatment of disbenefits to members of current legacy schemes. These must be fully evaluated before March 2022, when they enter the career-related schemes and the legacy schemes are closed. There are significant differences between the new schemes and legacy schemes such as the police pension—again, that is specifically referred to—which is based on years of service rather than pensionable age. Both these schemes are seen by members as being based on promises made by the Government to the service. Retirement in the career-related scheme is at 60, but as police pensions are based on years of service, members may wish to retire at an earlier age. If they do this under the career average scheme, which allows retirement at 55, they could lose up to 25% of their pension, which is a very significant issue. I am sure that this will be considered in more detail in Committee. There are similar structural issues for fire and rescue services, which were highlighted by the LGA. I would like the Minister to take note of an anomaly in Clause 29 and consider an amendment to recognise the special arrangements of the service where the employer is also the scheme manager.
The complexity of the current position with regard to public service pensions legacy schemes, given the Government’s intention that all be included in CARE schemes by March 2022, gives rise to a lot of practical problems, and I would like to understand how the Government intend to deal with them. It will be extremely important that the proposals in the Bill are workable. It is easy to say that members get to retirement and make whichever choice is best for them, but in some cases, they may have rights built up that fall due at different ages—some at 60, some at 65. So, if there is not a single retirement age, when do they have to make the choice? In some cases, the higher pension at retirement may be under one set of rules, but as retirement continues it may turn out that the other set of rules would have given a bigger total pension. What happens then?
The Government have accepted that people with really complex tax issues can have financial advice, but what about the millions of public sector workers who will have to make these choices? Where is the help and guidance coming from for them? What about financial planning between now and retirement? Presumably, any statement will show rights based on the assumptions of the old scheme, even though some people will opt for the new scheme. Will they have access to both numbers when they are planning and will the pensions dashboard show both numbers? It is going to be an extreme challenge for schemes to unpick, administer and communicate, and members are going to need a lot of help to understand what is happening. What plans do the Government have to resource support systems and enable members to make the best choices? Support for trustees of pensions schemes will also be needed.
The Bill deals with the consequences of government failure to foresee the age discrimination issue which gave rise to the McCloud judgment. The Bill will determine the future means of many public service employees. The Minister and the noble Lord, Lord Davies, said that many complex and difficult matters need to be resolved if members are to have confidence in the competence, integrity and political will of the Government to get it right.
Lord Woolf (CB)
My Lords, I welcome the Government’s action in promoting this Bill, and I hope it will be enacted without delay. In that regard, I was rather concerned to hear the submissions of the noble Lord, Lord Davies, which indicated that perhaps it will not be as straightforward a process as I would hope.
I refer to the entries on the record relating to my judicial career. Before I retired, the Government had, in my view, made two errors that were having an adverse effect, particularly on the position of members of the senior judiciary. The first was to reduce their mandatory age of retirement to 70 from 75, which it had been earlier in my judicial career. The second was to reduce the value of their pension in real terms because of the tax provisions to which the pension was subject.
A further alteration was made at about this time, which meant that very senior members of the judiciary did not have the privilege that I had, as a consequence of my appointment as a senior judge, of becoming a Member of this House. I know that all members of the judiciary who have had this advantage are very conscious of how important it was. I believe that others who had this advantage have made contributions that have been most important to the workings of this House. However, I accept that this change would be difficult to bring about in the course of this Bill, even though I would like to have seen it included.
However, the changes the Bill does make are sensible. Reducing the retirement age from 75 to 70 did not apply to me because it was not retrospective, but it has been made clear by events that have taken place since that time that we have been deprived of valuable judicial contributions by the reduction in age—without, I would say, any accruing benefit to the public interest. There must be a retirement age for judges; we cannot have a situation such as existed at the time of my earlier career, when some would say Lord Denning’s great powers as a judge were beginning to wane but there was no remedy available to cope with that situation. However, bearing in mind in particular current life expectancy, going back to 75 is a wise and sensible move. I hope it will be enacted as a consequence of this Bill with a great deal of rapidity.
With regard to the other changes affecting the judiciary that are my concern, the position as I understand it is that they have been properly taken into account, and therefore I look forward to their implementation as well. To put it shortly, I wish the Bill a speedy passage.
Lord Mackay of Clashfern (Con)
My Lords, I am in a rather unique position, because I was responsible for the introduction of the changes in 1993 that reduced the retirement age from 75 to 70 for most judicial offices. The proposal at that time was generated I think by a desire to make it clear at what stage a judge might be subject to some kind of consideration in relation to his or her health. The system was that, if somebody was getting a little frail in the mental side of their lives, the Lord Chancellor was expected to tactfully suggest that the time to close their judicial work might be approaching.
I did not much care for that sort of idea, because I thought it was a kind of interference with judicial independence—they had to decide for themselves. Of course, ultimately, they had to decide. It was not the Lord Chancellor’s decision; it was theirs. But anyway, the general view was that the retirement age should be reduced from 75 to 70. That was a fairly considerable change from what it had been years back, when there was no retirement age at all for most. Noble Lords may remember that Lord Denning said that he had a lot of the Christian virtues, but not those of retirement or resignation. So, originally, there was a possibility of being in judicial office for quite a long time. Anyway, that matter had been changed and the retirement age was now 75.
I initiated the Bill that reduced it from 75 to 70, with corresponding changes in the pension system, which are also referred to in this Bill. I had to take into account the point that, where a judicial officer is appointed, he is appointed on a secure tenure until he reaches a certain age—when there was an age limit—on condition of good behaviour. Therefore, it seems unlawful to change the arrangements that were made when the person took that on, contrary to his or her interests, unless they agree to it. So the alteration of the date of pension applied only to those who were appointed after that came into force. I remember my noble friend Lord Baker of Dorking saying to me, “James, that will take a long time to come into full force”—but, of course, judicial turnover is rather quicker than he expected, and it came into practical effect within a quite reasonable time.
Now, I entirely support the view that things have changed since that time, and therefore it is appropriate to move back to 75. Generally speaking, the judiciary enjoy a degree of health at that sort of stage in their lives, so it is a reasonable thing to do, and the change would not act against the judges in any way. As I and the noble and learned Lord, Lord Woolf, said, there were changes in pensions arrangements in 1993, but an option was given to people who were already appointed to opt in to that, because there were certain advantages that could be taken up in the new pension scheme in 1993 that were not available in the former pensions. So I now have the unique responsibility of supporting a reversal of the change I made 28 years ago. It just shows how quickly you learn.
Lord Hendy (Lab)
My Lords, I thank the Minister for the clarity of his introduction and express my intense pleasure at being listed to speak between two of my judicial heroes—the noble and learned Lords, Lord Mackay and Lord Brown.
For a long time, the police federations and other unions have been pressing the case that many of their members will suffer pension detriment by reason of some of the proposals found in this Bill. Previous speakers, in particular my noble friend Lord Davies of Brixton, have spoken of some of the unresolved issues, but the point to which I wish to draw the attention of the House is the failure of government to negotiate—or at least to consult with a view to reaching agreement—with the relevant police federations to remove or adequately compensate for the further detriments arising from the Bill.
The Police Superintendents’ Association has been making representations to the relevant Treasury Minister —not the noble Lord, of course—for months. I am told that it has been, in effect, stonewalled. In a letter to the relevant Minister dated a week ago, Chief Superintendent Dan Murphy of the PSA asked for confirmation that the Minister had ignored the PSA’s continuous request for the Government to informally engage with the PSA to resolve the taxation detriment suffered by its members and to formally consult with the PSA to resolve taxation detriment, and listed a number of other failures. He concluded by saying that the Police Pension Scheme advisory board was not satisfying the requirements for full and meaningful consultation, and cited some evidence to support that.
I do not wish to contest the merits of these allegations with the Minister, but they are serious. Pensions are not a matter for unilateral employer determination. International obligations to bargain collectively and to consult are engaged. I cite Article 11 of the European Convention on Human Rights as interpreted by the court in Demir and Baykara v Turkey. The same right is found in Convention 8 of the International Labour Organization, and Article 6.2 of the European Social Charter 1961 imposes on states the duty
“to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.
Article 6.1 requires the promotion of consultation as well.
The UK has ratified all these provisions. It is true that each contains an exemption in respect of workers, such as the police, engaged in the administration of the state, but that is a limited exemption and does not extend to the right to bargain collectively. That was made clear in a judgment of the European Committee of Social Rights adopted by the Committee of Ministers of the Council of Europe on 8 October 2014, in a case called European Confederation of Police v Ireland, which held that the Irish police association could not be excluded from public sector pay bargaining. In fact, collective bargaining and consultation are rights of particular importance for our police, who are prohibited by the Police Act 1964 from joining trade unions or going on strike, and whose freedom of association is limited to the police federations established by statute.
I am sure it will not be said that pensions are not pay and not, therefore, susceptible to collective bargaining. Pensions are of course merely deferred wages—part of what lawyers call the “consideration for work done”. They are a classic focus for bargaining. The international provisions that I refer to are of particular relevance because, by Article 399(5) of the EU-UK Trade and Cooperation Agreement—the Brexit deal—the Government bound the UK as follows:
“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted.”
I hope the Minister will commit to an amendment that requires full collective bargaining with the police federations to meet the pension concerns of their members, before committing the House to regulations to implement the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Hendy. I am sorry that he is not noble and learned; he is very learned, except in this House, and it is a great pity that he has never adorned the Bench himself. He must have appeared before generations of lawyers and in supporting the Bill, as I do, particularly the extension of the mandatory retirement age, I can hope only that his experiences of the more elderly generations have not been too disobliging for him.
I spent a total of 28 years on the Bench, although I held none of the great legal offices of state. Finding here the noble and learned Lord, Lord Mackay of Clashfern, an erstwhile Lord Chancellor, my noble and learned friend Lord Woolf, erstwhile Lord Chief Justice and Master of the Rolls, the noble and learned Lord, Lord Etherton, another Master of the Rolls, and the noble and learned Lord, Lord Hope, Lord President in Scotland and a Deputy President of the Supreme Court, I wonder why I am speaking. But here I am and I support the Bill, both its provisions as to judicial pensions, which I truly believe were necessary to cure the resentments and deep unhappiness felt in the judiciary over some years, but also on the mandatory judicial retirement age—what the erstwhile senior Law Lord, Lord Bridge of Harwich, called the age of “statutory senility”.
There is nothing that I really want to say about pensions. I am not expert in that field, and certainly not in a position to advise on any of the technical amendments suggested to be necessary by the Minister. As to the mandatory retirement age, I seriously think, together with my noble and learned friend Lord Woolf, that this will assist in the process of judicial recruitment, which has been a real problem over recent years. The fact is that in 1993, when the noble and learned Lord, Lord Mackay, introduced the change at one and the same time, if I remember right, he increased from 15 years to 20 years the time to be served as a judge necessary to earn one’s full pension. Overnight, it became necessary to be appointed by the age of 50 if you were to earn a full judicial pension, whereas I, like the noble and learned Lord, Lord Woolf, and most others here, was appointed long before 1993 and it was not retrospectively effective. I had the privilege and great pleasure, in fact, of serving until I was 75. I had done 28 years. I am not asking for nearly twice the judicial pension that I then did get but, in fact, I could have retired after 15 years and got it.
I know that there are arguments both ways on this and on judicial diversity and matters of that character. It seems to me that appointment eventually to the Bench becomes an altogether more attractive prospect if, when you are in your late 40s or perhaps early 50s, and if you are in a good way of practice and probably making quite a lot of money but know that you can continue that beyond 50 and still do your stint on the Bench—which I believe for most people is a contribution due to the public weal by practitioners who have been advantaged by the process—after the Bill proceeds, as I trust it will, then you would get a full pension by doing so, quite likely rather later than you would otherwise have had to make your decision.
Nowadays, of course, there is an ever longer expectation of life. There is a longer expectation, too, of good health in one’s later years; there is also, I believe, a parallel inclination on the part of many older people who would like to continue working rather than have imposed upon them ever longer periods of retirement and idleness. Surely it is an attraction to be allowed to continue in judicial office as of right for the additional proposed five years. Those words “as of right”, as the noble and learned Lord, Lord Mackay, suggested, are of great importance here. Once appointed to the office, now until 75, I hope, by an independent Judicial Appointments Commission that secures the position, you are not thereafter—after 70—at the whim of those who have power periodically to extend day by day, or whatever it may be, your judicial life.
The Judicial Appointments Commission, chaired as it has been for the last five years by the distinguished Cross-Bencher, the noble Lord, Lord Kakkar, has fierce independence and an unswerving adherence to the principle of merit above all else. We have a splendid body of independent judges. We currently retire them when most, or perhaps nearly all, of them are at the very height of their powers at 70. Many would want to serve longer and I believe we should let them.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, I intend to touch on matters concerning police pensions, but I stress that I represent no one but myself in the words I say. I do not have a financial interest in this matter, although I do have a police pension from my time in the service of 35 years, reaching the rank of chief superintendent, and from three years as president of the Police Superintendents’ Association.
It was with great sadness in my heart that I heard that the Police Federation had publicly declared that it had lost confidence in Priti Patel, the Home Secretary, and that on 27 July this year, only days afterwards, it felt compelled to write to the Prime Minister and the Chancellor. In that letter, it set out the growing anger among 130,000 police officers of all ranks caused by a number of grievances—not just financial, although the last straw was the offer of a 0% pay increase. It is ironic that this letter was sent on the very day that a reception was being held in Downing Street to thank police officers injured in the pandemic for their selfless work, given the complicated and far from clear legislation, often without proper PPE. As well as a pay freeze as a thank-you, they rightly complained of mixed messaging and a lack of understanding of the police role by the Home Office which put them in an invidious position, leading to them being abused and attacked.
This is about false claims by the Home Secretary that the police were fully consulted on some of the more controversial elements of the new legislation. It is also about the failure, despite ministerial promises, to take seriously their request for early priority for vaccination. Police officers are tired of warm words at conferences with no show of genuine support for the police. In essence, they feel not just a lack of respect but that they are treated with contempt. This is a serious matter because the police are a unique public service who, along with the Armed Forces, are legally prevented, as has been said earlier, from taking industrial action.
Having set the context of where we are, I briefly come to the Bill before the House, which is another source of grievance. The matter of police pensions has of course been touched on by the noble Baroness, Lady Janke, and by the noble Lords, Lord Davies of Brixton and Lord Hendy. Police of all ranks feel that it reduces their pension entitlement. It is seen as yet another change with little consultation, which police officers passionately believe worsens the conditions of service under which they joined. All this at a time when the Government are trying to recruit thousands more police officers in order to hold the thin blue line. When I was president of the Police Superintendents’ Association I had excellent relationships with the noble Lord, Lord Howard of Lympne, and the Home Secretary who followed him, the right honourable Jack Straw. One of the best recruiting sergeants when I joined the service was the excellent police pension scheme. I recall the sergeant addressing the recruits at the training school, imploring all those present to join the scheme— I certainly never regretted it.
We cannot put the clock back, but we can respect those who have risked their health and lives in the line of duty. It is so important for the Home Office to have a business-like relationship with the police staff associations, but the current Home Secretary seems to have difficulty in developing and maintaining cordial relations with those with whom she has to work. I implore the Prime Minister to instruct his right honourable friend the Home Secretary to do what he apparently enjoys doing: to build bridges with the police staff associations, the representative bodies of those who keep us all safe.
I hope that the Minister passes on my message today. A good place to start would be by genuinely listening to the concerns of police officers of all ranks with a proper consultation on this Bill, in an attempt to mitigate their deep concerns with it in its present form.
Lord Etherton (CB)
The provisions in the Bill for reform of judicial pensions, intended to rectify the scheme introduced in 2015, which applied only to younger judges, are welcome. The April 2015 pension provisions were held by successive courts to be unlawful and discriminatory on grounds of sex, race and age. I can say from my own experience, when I was head of the Chancery Division of the High Court, that they were a disincentive for practitioners to apply to become High Court judges. The proposed provisions will ultimately permit and require all members of the judiciary to be on the same new scheme and terms, which is highly desirable.
However, I regret that unlike the distinguished other former judges and judicial officeholders who have spoken—the noble and learned Lords, Lord Woolf, Lord Mackay of Clashfern and Lord Brown of Eaton-under-Heywood—I regard the raising of the judicial retirement age from 70 to 75 as very much a mixed blessing. On the one hand, it will enable experienced judges, as the noble and learned Lord, Lord Brown, said, to continue in office when they still have so much to contribute to a high standard of justice. It will also allow for applicants for judicial appointment to apply later in their careers—again, as emphasised by the noble and learned Lord, Lord Brown. That may be attractive to some practitioners. On the other hand, to raise the retirement age in one step from 70 to 75 rather than, say, 72, is highly likely to have an adverse effect on diversity, especially in the Court of Appeal and the Supreme Court.
There are far too few women and people from minority ethnic backgrounds in the Court of Appeal and, especially, the Supreme Court. There is universal recognition of that shortcoming. It is possible to progress diversity only if the ranks of those in the top courts are open to new members. However, both courts are relatively young: in the Court of Appeal, for example, the current average age is under 63, which means that potentially there could be a very long freeze, of possibly 12 or 13 years, for any substantial influx of new members. Will the Government think again about that issue, and the potential adverse outcome of raising the age of retirement in one go to 75 rather than to 72, at least in the first instance?
Will the Minister also confirm that, if at all possible, the retirement age increase, whatever it might be, will come into operation on 1 January, as there are judges—including one in the Supreme Court—whose 70th birthday falls between the beginning of January and April next year, when all judges will be moved to a single reformed scheme? If the retirement age increase does not come into effect until April 2022, when the new pension provisions come into effect, such judges, whose 70th birthday would have accrued between January and 1 April 2022, will be able to apply again for appointment. That would complicate the appointments process when they will be competing against other applicants. Alternatively, will the Government give consideration to introducing transitional provisions to address that problem?
Lord Hope of Craighead (CB)
My Lords, the Bill affects many people in public service, but I hope that I may be forgiven for concentrating, like others, on the branch of the public service with which I am most familiar: the judiciary. So far as they are concerned, it seems to me that the Bill seeks to do two things that are to be welcomed.
The four noble and learned Lords who have spoken before me have said almost everything that could be said one way or the other, but I should like to stress one or two points. The first is the correction of the mistake that was made in 2015, when the new pension scheme was introduced, that applied to all members of the judiciary still in service, apart from those within 10 years of retirement. That scheme was significantly less advantageous because it was registered for tax purposes. That had very unwelcome consequences for those who had contributed to their own pension schemes while in practice. The prospect of the large and wholly unplanned-for tax bills that would be the result of becoming subject to that scheme was a severe disincentive.
I have experience of this—although the Bill certainly does not apply to me because I retired eight years ago. I made provisions at a very early stage in my career as a self-employed member of the Bar, with no prospect of becoming a judge at that stage, and indeed for a long time in my career. I sacrificed money that might have been used for other things to build up a reserve for myself and my family. This is what people had done, and now they were faced with these very unwelcome tax consequences—so it is no surprise that it was a disincentive, and it is right that the Government should seek to remove it. I also welcome the fact that the Government have decided, in this respect, to treat all members of the judiciary equally.
The legislation that we are presented with in the Bill is not an easy read, but the policy background is very clearly set out in the Explanatory Notes and the impact assessment, and I am also grateful to the Minister for his very helpful introduction. There is one aspect of the judicial scheme—the only one that will be available for everyone after 31 March 2022—which is especially welcome: the fact that the scheme will be unregistered for tax purposes. As I understand it, compensation is also being offered to those who incurred tax liabilities under the previous scheme—and that too is very welcome.
As has been pointed out, all eligible members will be able to opt for the scheme that is most beneficial to them under the options exercise that is to take place in the autumn of 2022. I hope that the Minister can assure the House that guidance will be offered to all those who are involved in that exercise in good time so that they may be fully informed before they take this decision. Guidance of that kind was offered in the past when I had to make that kind of choice, and it would be very helpful if the Government were to assure us that that will be done in this case.
I see this argument about pensions as the end of a long and, for some, very uncomfortable debate about how to balance the public interest against the reasonable expectations of those who have chosen to serve as members of the judiciary. I have been only on the fringes of these debates, but I wish to pay tribute to all those members of the Bar and the judiciary who have contributed to it, spending many hours, in many cases, in doing so.
The other thing that the Bill seeks to do—I follow the noble and learned Lord, Lord Mackay, and my noble and learned friends Lord Woolf and Lord Brown of Eaton-under-Heywood in welcoming this—is the reduction of the judicial retirement age to 70. The noble and learned Lord, Lord Mackay of Clashfern, may remember that some argued that it should be reduced to 65, but that step was fortunately not taken. But it was to overlook the benefits that come with experience.
I was one of those members of the newly formed UK Supreme Court who was able to continue to the age of 75. We tried very hard to persuade the then Government that that age should be retained for the Supreme Court justices—but without success. We pointed out that the new age limit would severely limit the time that some of our newer members could contribute to the work of our court, as was indeed the case, and that the rapid turnover that it would lead to was undesirable.
I noted with great care what my noble and learned friend Lord Etherton said about this, and his suggestion that there should be a phased increase in the retirement age. Perhaps I may continue for a moment or two to reply. The problem we have with legislation of this kind is that often one has only one opportunity. This is an opportunity that may not recur, and there will be consequences whatever happens. I give one example, which is now in the past: my noble and learned friend Lord Neuberger, who became president in 2012, had to retire in 2017, just before his 70th birthday, when he was still very much at the height of his powers. He was succeeded by my noble and learned friend Lady Hale of Richmond, who was already 70—but, because she had been appointed to the judiciary before the change, she could go on until she was 75. One can only guess at what might have happened if the change had been made before my noble and learned friend Lord Neuberger was due to retire.
There is just one other anomaly. There were different retirement ages depending on which part of the judiciary you were serving in. This Bill produces a single retirement age for everybody. As one who had to grapple with complaints about the differences in retirement age and the opportunities for service after retirement when I was Lord President of the Court of Session in Scotland, I very much welcome the uniform approach that this Bill now takes.
Baroness Kramer (LD)
My Lords, I am absolutely no expert on pensions, and I have been absolutely delighted to listen to the speeches today, because there is obviously an expertise in this House that makes up for my very serious lack. I shall look forward also to receiving briefings from relevant groups as we move to Committee, because the Bill has so many technical aspects that I think we will need the help of relevant interests, including the trade unions, to negotiate our way through the remaining phases.
The history of public service pension change is rather littered with unanticipated consequences, and indeed we are here today because of the judgment in the McCloud case on discrimination, which was itself an unintended consequence. I also pick up the point made by the noble Lord, Lord Davies, that if we look at the broader context of public service pensions, we see a whole lot of issues that are not covered by this Bill—I think that some of them are meant to be addressed in the next Finance Bill—which makes it very difficult to shape the legislation before us today.
I had the privilege of being at the briefing that the Minister kindly offered to all Peers yesterday and I want to pick up on an issue raised by the noble and learned Lords, Lord Etherton and Lord Judge—although I would never want to put words into the mouth of the noble and learned Lord, Lord Judge; I think he will speak for himself in Committee. The issue is the impact on diversity of the change in the retirement age of the judiciary. I think that everybody in this House would say that it is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society that we live in if they are to be respected and seen as part of our current era. At the moment, they do not. I am very concerned about the block that will be created. The noble and learned Lord, Lord Etherton, essentially said that we would not see a lot of turnover in the Court of Appeal for some 12 to 13 years, so the possibility of people from ethnic minority backgrounds and of women being seen in the Court of Appeal will be significantly impacted by the increase in the retirement age—and I do think that matters.
When we discussed this yesterday, the Government took the position that a blockage for somewhere between five and 12 years would advantage women—for example, those who have taken maternity leave will be able to make up the experience to make them more eligible to be put on the court. My answer was, “Have you talked to those women? Have you talked to the ethnic minorities?”—the people who will be impacted by what will be effectively a block on the turnover of appointments.
I understand that there were questions on diversity in the relevant consultation, but we all know that consultations are dealt with by the usual suspects—those are the people who reply. It is incumbent on the Government, if they are going to put in place what effectively is a very significant block on seeing diversity among our senior judges, to go back to that pool of people and talk to them about their views on the impact this will have. That is not a very difficult thing to do, and I hope we will see it.
There are quite a number of issues in the Bill. Again, I wish I had greater expertise, but from looking at the various briefings I have been able to lay on my hands on and replies to the consultation, it appears that there are a number of pension traps. People who find themselves in both the legacy system and the new system may be trying to make career decisions and find that they are disadvantaged in one scheme but advantaged in another and they have no idea how to put the various pieces together. The Police Federation is particularly concerned. It raised the issue of women in the police force who take maternity leave and have been able to work for additional years to make up the lost pension under their scheme. That is now not going to work. People who work part-time will be paying much more into the scheme, pound for pound, than full-time workers.
There is a whole series of flaws here and I would like the Minister to deal with them. There is no point repeating another Bill that has a lot of unintended consequences. I join very much with my colleagues, particularly with my noble friend Lady Janke’s comments. With a system that is now so complex, many people will need advice to know what to do. Surely there ought to be some provision to fund that or at least give them reasonable access.
The noble Lord, Lord Davies, raised on the cost control mechanism. I am appalled that the 2016 valuation is still hanging fire. I know that it will be resolved, but, like him, I am very concerned about how a rational 2020 valuation scheme will be put in place. We are in such economic flux. This is a really difficult time to put in place frameworks for something like a valuation. If you add to that the fact that the change in the scheme presumably means that people will be making all kinds of pension choices which will put pressure on any kind of set ceiling, the notion that the members will all have to pick up the cost strikes me as extraordinary. We need the Minister to elaborate on that and to understand what the consequences will be.
At the meeting yesterday, the Minister said that as a new scheme is developed for 2020 and the review that is currently under way is completed, it will require primary legislation to bring it into effect. I would like some confirmation of that, because if something that significant is going to come to us, either through Treasury direction as the noble Lord, Lord Davies, described, or even through a statutory instrument, it will be very hard for us to get a grip on the way the system works.
Lastly, I will tackle an issue that I have raised many times in this House, which is very relevant to this Bill. The problems judges faced following the changes in 2015 were a consequence of the annual and lifetime pension relief allowances and the taper system included with those changes. When they were initially put in place they were not a problem because of where the thresholds were set, but as those changed over the years they have become a major problem. Indeed, lawyers found that if they became judges, they would lose not only any additional income, but pension as well. That is an impossible situation.
This did not apply just to judges: consultants in the NHS faced exactly the same problem if they worked for a weekend. Because of the way the NHS pension scheme is set up they would have to pay tax that not only wiped out the additional income but went way beyond that. In our Armed Forces—to me this is utterly outrageous and got me involved in this issue in the first place—two-star colonels are basically refusing to become three-star because the consequences would be so bad. They would either have to pay very large tax bills, wiping out any additional income by, or take severely reduced pensions. That is insanity.
The Government dealt with some of that for the NHS and the armed services by changing the thresholds in the last Budget, but it is a sticking plaster, and what we see now for the justices is a permanent way to resolve the problem. Essentially, the scheme will no longer be tax registered and therefore the problem goes away for the justices, but we should be using this Bill to fix the problem for everybody else. If it is not going to be fixed in this Bill, when is it going to be fixed? It is insanity to say to our senior military, “You’re going to be on the battlefield, you’re obviously not going to leave after you’ve done so many hours and come home, and the consequence is that you will find yourself with a huge tax bill that will, frankly, cause havoc for your family.”
We have lost most of our two-star colonels—they have refused to go to three-star and have gone to civvy street—and we have consultants who worked during the pandemic knowing that they would essentially be paying a very large price as a consequence because it would impact on their taxes or pensions, depending on the way they set up their arrangements.
I believe that it is vital to this country that our public servants are properly and fairly compensated with both pay and pensions. The Government really made a hash of reforming these schemes in 2015; the Bill is part of the clean-up, but let us make sure that it brings clarity and fairness to all parts of the public service pension arrangement.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Viscount, Lord Younger, for introducing the Bill. I think I am right in saying that both he and I are laymen on this subject in that we are not lawyers or pension experts.
On the public sector pensions, clearly there is a problem which needs to be addressed following the findings of the McCloud ruling. I note that the Supreme Court denied the Government leave to appeal the finding. The Public Accounts Committee has called the Government’s problem a
“£17 billion mistake on pensions reform”.
I recognise that the remedy the Government have opted for, to be included in this Bill—the deferred choice underpin, the DCU—was preferred by a significant majority of respondents to the government consultation, including main trade unions such as UNISON and GMB. The DCU remedy would give people the choice at retirement as to how their pension should be calculated during the period 2015 to 2022. What measures will be in place to ensure that individuals affected will have the information they need at the point of retirement to make an informed decision? This important question was put by the noble Baroness, Lady Janke, and repeated by the noble Baroness, Lady Kramer, and it deserves an answer.
I believe there is a lack of clarity about who will bear the costs of these measures. The noble Baroness, Lady Janke, quoted from the Public Accounts Committee, which has also raised this point about who will bear the costs. Can the Minister explain how these costs will be met, and what impact this will have on future public spending decisions?
Before I move on to the cost control mechanism, I should say how grateful I am for the expertise demonstrated by my noble friend Lord Davies. I also found it particularly interesting that my noble friend Lord Hendy spoke of the context of the police in these proposed changes and how that is impacted within international law. My third noble friend, the noble Lord, Lord Mackenzie, also gave a very interesting and quite alarming explanation of the treatment of the police force regarding these proposed pension changes.
As far as I understand it, there are two problems: the original design of the CCM made it too volatile and the McCloud judgment has created a significant uncertainty, which members have now been living with for more than two years. The Government ran a consultation on the CCM mechanism, which closed on 19 August. When does the Minister anticipate that they will be able to respond to this consultation? Is he in a position to express any view on the key views expressed to the Government in that consultation process?
Clause 80 provides that the breach of the cost cap ceiling in the 2016 valuation will be waived. Trade unions are concerned about where the cost of that waiver will eventually fall and the impact of the McCloud remedy on the 2016 valuation. The impact of the valuation, when we get it, was a point raised by my noble friend Lord Davies and the noble Baroness, Lady Kramer. Separately, can the Minister confirm the Government’s commitment that any benefits improvements due to the breach of the cost floor will be honoured, and further—this was also a point made by my noble friend Lord Davies—that the increased use of Treasury directions for matters that should be subject to parliamentary scrutiny should be at a minimum, because Parliament should be involved as the CCM evolves? Clearly, we will want to scrutinise these things carefully as the Bill proceeds.
I turn to the proposed changes to the judicial retirement age, and here I declare an interest as a serving magistrate. We know that the existing provisions have been in place for 27 years, and we have had a great deal of personal expertise from the noble and learned Lords who have contributed to today’s debate. I will put forward a different view from the one proposed; it is more in line with the views expressed by the noble and learned Lord, Lord Etherton.
In the consultation, the overwhelming number of respondents—some 84%—supported raising the mandatory age of retirement. However, a large body of respondents preferred the age of 72 rather than 75. The people who preferred 72 were the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland, the President of the Supreme Court, the Lord President in Scotland, the Magistrates’ Leadership Executive, the Chief Coroner of England and Wales, and the President of Tribunals. All these individuals and bodies favoured 72, not 75. There are debates on this, but it is worth exploring a couple of the reasons why 72 is preferable to 75. Diversity is an important issue; I agree with the points made by the noble Baroness, Lady Kramer, on that. I also agree with her point about the importance of consultation. I do not know whether the Minister can say anything about whether members of the black community have been consulted on these proposed changes; they are liable to disadvantage their prospects for promotion within the judiciary.
I also want to raise a different subject, and here I speak as somebody who appraises magistrates. There are occasions when a small number of people—judges—may experience some level of mental decline. Clearly, there is an appraisal system for trying to deal with this, but it is a sensitive issue. I have probably appraised getting on for hundreds of magistrates over the last few years. One has to be frank: the prospect of mental decline accelerates over the age of 70. There needs to be a mechanism for sensitively dealing with these issues. That also argues in favour of a retirement age of 72 rather than 75, so that these issues of mental decline are not exacerbated.
We in the opposition party support the Bill. We will work constructively with the Government to look at the detail of it, and we wish it well.
Viscount Younger of Leckie (Con)
My Lords, this has been a somewhat short debate but, as always, the experience and knowledge in this Chamber has been extremely insightful on what I think we all agree is a pretty complex subject. I thank all noble Lords for their contributions, not least acknowledging the specific experience of the noble Lord, Lord Davies. I have also counted that out of the 11 or so speakers in this debate, there were no less than five noble and learned Lords—so no pressure there. I will give proportionately a little more time to touching on judiciary matters, because I think it is fair to say that the mood, tone and indeed content of the debate was more steered towards that direction. That is not to say that there are not a number of other questions that need to be answered, which I will attempt to do. There have been some technical and specific issues raised, and I will endeavour to answer as many questions as I can, but it may be that a letter—maybe a longer one than normal—is required to follow up on the technical issues.
I start by answering probably the first question raised by the noble Lord, Lord Davies, on the timetabling for the Bill. To reassure the House, we aim for the Bill to have Royal Assent in early 2022, so that Chapter 4 can come into force on 1 April 2022, as set out in Clause 113, on commencement. However, noble Lords may recall that the Government set out in their consultation response in February this year that schemes would have until 1 October 2023 to introduce retrospective changes, in order to balance bringing the discrimination identified by the courts to an end as soon as possible with giving schemes and administrators the time needed to establish systems to deliver the necessary changes. Clause 113 therefore provides that Chapter 1 will enter into force on 1 October 2023, or earlier if specified in regulations. I hope that goes a little way to answering the question raised by the noble Lord, Lord Ponsonby.
Before I address the themes and questions raised, I wanted to use this occasion to give a little more background to what we are trying to do in the Bill; in particular, this might help to address some of the concerns the noble Baroness, Lady Kramer, expressed about the 2015 reforms. By 2010, the cost of providing public sector pension schemes had increased significantly over the previous decades, with most of this increase falling to the taxpayer. At the same time, occupational pension provision in the private sector had changed significantly; employers were increasingly moving away from offering defined benefit pension schemes.
The commission set up in 2010 found that the existing structure had been unable to respond flexibly to workforce and demographic changes that had occurred over the previous few decades, and that this had led to rising value of benefits due to increasing longevity, the unequal treatment of members within the same profession, the unfair sharing of costs between members, employers and taxpayers, and barriers being put up to increasing the range of providers of public services. The final salary design of schemes was criticised for creating unequal treatment of members within the same employment. The commission’s final report, in March 2011, therefore recommended moving public service scheme members to reformed schemes with benefits calculated on CARE—the House will know that this is career average revalued earnings—rather than based upon final salary.
To control against the risk of rising longevity—which we know is there—the commission recommended increasing the normal pension age to 60 for the Armed Forces, police and firefighters, and to state pension age for all other schemes. In line with wider changes to the use of price indexation in government, changes were also made to the measure of inflation used to uprate pensions, from the retail prices index to the CPI—the consumer prices index. Member contribution rates were also increased across the schemes, other than that relating to the Armed Forces, by an average of 3.2% of pay. The House may well know this, but I think it is helpful to produce this rather complex background as to why we are where we are today.
Overall, the reform schemes were designed to ensure that members would have good pensions which, at a minimum, met the target levels identified by the pension commission of the noble Lord, Lord Turner, for the income needed in retirement. The reform designs should provide many low and middle earners working a full career with pension benefits at least as good as, if not better than, those under the previous arrangements.
I will move on to some of the issues that were raised. The first was the so-called differential treatment of judges. This was raised particularly by the noble Lord, Lord Davies, and touched on by the noble and learned Lord, Lord Hope. In addressing the point, I will highlight the difference in the recruitment and retaining of judges in particular, which distinguishes them from other public servants. Judges follow a unique career path. They often have long careers in the private sector and take up judicial office at a later stage in life. Many take a pay cut when joining the Bench. Therefore, appointment as a salaried judge in the UK is seen as the culmination of a barrister’s or solicitor’s career, rather than a career path in and of itself. This contrasts with the position in countries such as France, Germany and Italy, which all have career judiciaries, and where the judicial profession is separate from practising as a lawyer. The House may not know that salaried judges in this country may not return to private practice as a barrister or a solicitor.
Reflecting this difference with other public sector workers is important. When we return judges to a tax-unregistered scheme—which is the position that they were in prior to 2015—without these changes there would be continued issues with recruiting judges, threatening the effective functioning of our justice system and its reputation. While the scheme will be unregistered, it is important to note that other aspects of the scheme will be consistent with the principles of the 2015 pension reforms, to ensure its long-term affordability and fairness to the taxpayer.
This matter was raised by the noble Baroness, Lady Kramer, who asked why this could not be extended to other groups. I hope that I have helped to put our view on that. The noble Baroness raised the matter of military generals and touched on doctors, but I stress, on that point, that the manifesto committed to addressing recruitment and retention issues for doctors through the pensions tax system. At the Budget in 2020, the Government spent £2.175 billion on increasing the annual allowance taper threshold and adjusted income limit. These measures apply to all individuals across the UK and are a significant step in resolving this issue. These changes mean that any public servant whose sole income after deducting pension contributions is less than £200,000 has been taken out of scope altogether. We estimate that these changes have taken up to 90% of GPs and up to 98% of NHS consultants outside the scope of the tapered annual allowance. I am sure that there is more that I can say on that, but I hope that it provides some explanation to the noble Baroness, and to the noble Lord, Lord Davies, who raised the same point.
Moving on to the subject of what might rather loosely be termed judicial diversity, there was quite an interesting debate on this. Many noble Lords touched on diversity, linking it to the mandatory retirement age. I will perhaps give a more expansive response to this. I was pleased to hear the initial debate raised by the noble and learned Lords, Lord Woolf and Lord Brown, and my noble and learned friend Lord Mackay. I was particularly interested that he was the one who originally lowered the age from 75 to 70 and that he is now behind our move to raise it again to 75—that was a very interesting reflection from my noble and learned friend.
To give a little background on this, the Government are absolutely clear on the importance of judicial diversity and of having a judiciary that is representative of society. That is why the Ministry of Justice, as a member of the Judicial Diversity Forum and of the magistrates’ recruitment and attraction steering group, is committed to continuing the work to improve diversity across the judiciary and the recruitment pipeline.
I recognise that concerns have been expressed over the impact on judicial diversity of a higher retirement age. Let me start by saying that we acknowledge that the retention of older officeholders could have an impact on the flow of new appointees to judicial office, which may impact on the rate of diversity change. However, as some noble Lords have recognised, there is another side to the story. As many judicial officeholders do not continue to sit until 70 now, we do not expect that all will wish to continue in office until 75. For that reason, and because of the ongoing demands on our courts and tribunals, we will continue to recruit a high number of new judges and magistrates for some time, so we expect that the overall diversity will continue to improve, reflecting the greater diversity of new appointments. The Government also believe that there will be positive diversity impacts from mandatory retirement at 75, and we expect it to encourage applications from a more diverse range of candidates, including those who may have had extended career breaks to balance professional and family responsibilities, or from lawyers who feel ready to apply to the judiciary later in their career.
I should have mentioned the noble and learned Lord, Lord Etherton, and I noted, particularly from him, that he declared that he was—how should I put it?—less than impressed with the decision that we have taken and has asked us to think again. That came also from the noble Baroness, Lady Kramer. However, I do not believe that we will be doing that, and I hope that this explanation will help.
I will move on to the consultation, which was also raised by a few Peers, including the noble Baroness, Lady Kramer, and the noble Lord, Lord Ponsonby. I reassure the House that the decision to raise the mandatory retirement age to 75 was taken after careful consideration. The consultation in 2020 received over 1,000 responses and—as was raised this afternoon—84% supported an increase. I acknowledge that there were mixed views on the age at which it should be set: 67% supported an MRA of 75, recognising that the limited diversity impact was outweighed by the retention benefits and the flexibility afforded to judicial officeholders to sit longer. The Government are confident that an MRA of 75 will provide the right balance—and it is a balance—between protecting the need to have a mandatory retirement age and the benefits to the justice system from retaining such valuable expertise for longer and attracting a wider range of applicants. However, as I said in the briefing yesterday, I have pledged to write, particularly to the noble Baroness, Lady Kramer, and I will do so to all noble Lords who have taken part in the debate today, with some further detail on the feedback from the consultation, particularly in relation to feedback from women, which was raised by the noble Baroness, and from the black community, as raised by the noble Lord, Lord Ponsonby.
Another important subject is the cost control mechanism—the so-called CCM—which was raised by the noble Lord, Lord Davies, and the noble Baroness, Lady Janke; the noble Lord, Lord Ponsonby, also touched on this. As was mentioned, the Government’s consultation on changes to the cost control mechanism closed on 19 August. The Government are considering all responses received and will publish their conclusions shortly. The aim is to implement any changes in time for the 2020 valuations, and the Government will legislate for any changes once they have responded to the consultation and when parliamentary time allows. However, I want to give a little more detail on this, because it is an important subject—particularly the 2016 valuations.
The cost control element of the 2016 valuation process was paused, as we know, in light of the McCloud judgment regarding transitional protection. The potentially significant and uncertain impact arising from the court’s judgment made it impossible to assess with any certainty the value of schemes to members. In July 2020, the Government announced that this pause would be lifted and the 2016 valuations completed. HMT will, when possible, set out in directions the technical detail of how the restarted 2016 valuations will operate. Outcomes for individual schemes will not be known until the results have been finalised. The noble Lord may not find this answer satisfactory, but I am afraid that it is the only answer I can give this afternoon.
The related issue of member cost was raised, not least by the noble Lords, Lord Davies and Lord Ponsonby. The Government have announced that the legislative remedy should be taken into account when completing the cost control element of the 2016 valuations. This is because, when the cost control mechanism was established, it was agreed that it would consider only costs that affect the value of schemes to members. Addressing the discrimination, giving members a choice of scheme benefits for the remedy period, involves increasing the value of schemes to members. The usual way these costs are managed is through the cost control mechanism. However, as I mentioned in my opening speech, this Bill will waive the impact of any ceiling breaches that may occur, so that no member will see a reduction in benefits as a result of the 2016 valuations—although any floor breaches will be honoured.
I move on to another important subject, the Police Superintendents’ Association, which was raised by a number of Peers, including the noble Lords, Lord Hendy and Lord Davies, the noble Baroness, Lady Janke, and the noble Lord, Lord Mackenzie. As the House might expect, I cannot comment too much on the specifics of any live, ongoing litigation. However, I confirm that this Bill will ensure that all eligible public service workers have access to high-quality defined benefit schemes on a fair and equal basis. From 1 April 2022, all those who continue in service in the main underfunded schemes will do so as members of the reformed schemes, regardless of age. Legacy schemes will close to future accrual, which means that from this point onwards all members will be treated equally in terms of which pension scheme they are a member of. I noted very strongly the points raised in particular by the noble Lord, Lord Mackenzie, and, while I cannot comment too much, I shall pledge to pass his comments on.
I want to say a little more on this point. The Government consulted on proposals to remedy the discrimination identified by the courts in July 2020. Officials met with the scheme advisory boards for the public service schemes, including the scheme advisory board for the police pension scheme. The Government published the response in February this year, and officials have arranged a further meeting tomorrow to discuss the Bill with stakeholders, including the Police Superintendents’ Association. The Home Office will undertake further consultation with employee representatives of the police pension scheme in relation to the scheme regulations, which will set out the detailed changes to the scheme. I hope that gives some comfort that some progress has been made.
I have not really managed to answer properly some of the questions raised by the noble Baroness, Lady Janke. Can I say something about trust? She raises a very important point—that trust between the Government and all the public service sector workers and the operators of the scheme is incredibly important. She made the point that perhaps the trust is not there and, okay, I have noted that and will pass it on. Perhaps we need to work hard on that, but it may be linked to the fact that these matters are extremely technical; there are a number of matters that we need to sort out, as she knows. She herself mentioned that this Bill and this area are quite complicated.
In the same breath, may I answer a point raised by the noble Baroness and by the noble and learned Lord, Lord Hope, about giving information to members to inform them on decisions that they might care to make as a result of the transitional period decisions? As I said at the beginning, statements will be provided so that individuals can weigh up the choices. By the way, that is the case for the judiciary as well, just to reassure the noble and learned Lord on that.
I shall check Hansard, as there were probably a number of other questions, but I hope that I have covered the main themes from this important debate. I finish by thanking all noble Lords for their contributions. It is very important to say that we must ensure that those who deliver our valued public services continue to receive guaranteed benefits on retirement on a fair and equal basis and in a way that ensures that pensions are affordable and sustainable. I commend the Bill to the House.
Public Service Pensions and Judicial Offices Bill
Monday 11th October 2021
(3 years, 9 months ago)
Grand CommitteePublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Amendment Paper: HL Bill 44-I Marshalled list for Grand Committee - (7 Oct 2021)
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, Members are encouraged to leave some distance between themselves and others and to wear a face covering when not speaking. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung, and it will resume after 10 minutes.
Member’s explanatory statement
This would require, rather than allow, pension scheme regulations to make provision for circumstances in which a liability owed by a person to a scheme will be reduced or waived. This is to probe further details on what circumstances will be provided for and how the schemes will be designed.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I rise to speak to Amendments 1 to 3 in my name. They are probing amendments to draw out some further detail, and I thank the noble Baroness, Lady Janke, for adding her name to them. I put on record my thanks to the Police Superintendents’ Association for raising its members’ concerns with us.
Recurring themes will emerge in our deliberations on this Bill—particularly questions of oversight, of the details and the actual mechanics of when and how the remedy is to be delivered and of how that will impact on members. With these amendments, we are trying to flesh that out.
I recognise that the Bill is essentially an enabling Bill, and it provides powers for schemes to do the detailed work required by the remedy. Therefore, it is one piece of a very complex picture. The Committee will particularly benefit from the expertise of some Members here today, and we hope to probe some key questions and add to the understanding of what impacted scheme members can expect.
Amendments 1 to 3 are simple probing amendments to Clause 16. Currently, the clause provides that a scheme “may” make provision to waive or reduce a scheme’s members’ liability. These amendments would change that word to “must”. The Explanatory Notes state:
“Clause 16 provides that scheme regulations for a legacy scheme may make provision whereby a liability on an individual to repay overpaid benefits … or to pay an amount in respect of underpaid contributions … is reduced or waived.”
In simpler terms, due to the changes and choices that the Bill provides for, some members may end up owing their scheme funds due to their having underpaid contributions or having been overpaid pension benefits.
Clause 16 provides that schemes have the power to waive or reduce those costs for people in certain circumstances, but the Bill does not provide any detail of what those circumstances will be. The Explanatory Notes give the following example:
“where a pensioner member has been overpaid their pension benefit and reimbursing the … scheme would cause hardship, the pension scheme could write off part of the liability.”
That is a welcome example, but it appears only in the Explanatory Notes. There is no level of detail reflecting that, or indeed any of the possible circumstances, in the Bill itself.
So, I have number of questions for the Minister. Can he provide more detail on the circumstances in which the Government would expect relief to be provided under this clause? Secondly, has the department estimated how many people may be affected in this way? Thirdly, I know the Minister will tell us that the Government’s aim is to provide the schemes with discretion to support their members, but should not every scheme at least be required to set up provisions to provide relief where necessary? Furthermore, on the question of when a waiver or reduction would be necessary, are there situations in which the Government would expect every scheme to provide relief, such as where financial hardship is caused? In this case, would it not be appropriate to include those details in the Bill?
Another question concerns Clause 24, which provides that the powers under this clause must be exercised in accordance with Treasury directions. So, the Treasury intends to provide some directions to the schemes on these issues, but outside the Bill and away from parliamentary scrutiny. What plans do the Government have to consult on the directions and the circumstances this clause may be applied to, so that the schemes reflect the actual situations experienced by members?
I know that the Minister is only too aware of this issue and, in many ways, we keep coming back to it. This is a complex Bill and we have a number of hours to look into that complexity. Clause 16 recognises that the impacts may need to be mitigated. What we are seeking is clarity on the protection and assistance that will be available. I look forward to the Minister’s explanation. I beg to move.
Baroness Janke (LD)
I signed Amendments 1, 2 and 3 and support the reasons laid out for us today by the noble Lord, Lord Ponsonby. It is be important that all members of the scheme understand how this system will work. As we have heard, it is a complex Bill that will affect many people, so I agree that an estimate of the number affected would be helpful. The transparency and consistency of the scheme need to be clear, and I hope the Minister will be able to provide that clarity. I also agree that it would be helpful to have the Treasury directions on the face of the Bill, rather than outside it, so that there are no misunderstandings and the people affected by this provision understand clearly how it will work for them.
Viscount Younger of Leckie (Con)
My Lords, I thank the few noble Lords who have spoken for their contributions to this first debate in Committee: the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Janke. I also thank the noble Lord, Lord Davies, who I believe was originally intending to speak.
Before I address the points raised, and as we are commencing Committee, I will set out briefly the core principles which underpin this Bill; in my view, this will provide a nice bridge between Second Reading and Committee. At the core of the Bill are fairness and equal treatment. The Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement that are among the best available, on a fair and equal basis. This core objective is underpinned by the principles of greater fairness between lower and higher earners, fairness for the taxpayer, future sustainability and affordability of public sector pensions.
I thank noble Lords for continuing to work with me to ensure that these important objectives are achieved through this Bill in support of the vital public services on which we all rely. I also draw noble Lords’ attention to the policy statements covering various key elements of this Bill, which were deposited in the House Libraries on 4 October. I trust that noble Lords will have seen these despite the tight timetable; I am aware that many noble Lords will have only just returned from recess.
These amendments are intended to ensure that a comprehensive remedy is delivered for all members by requiring, rather than enabling, regulations to be made under Clauses 16 and 19. I take the point made by the noble Lord, Lord Ponsonby, that these are probing amendments, but I would like to give a full response and hope that I can answer the five or six questions that he asked. If not, I will certainly write to the noble Lord and, indeed, copy in other noble Lords who have spoken.
Before considering the specifics of noble Lords’ amendments, I thought it would be helpful to remind this Committee about the practical effects of stating that regulations “must” be made as opposed to “may” be made. When an Act states that regulations may be made for a particular purpose, it grants whoever is responsible for making those regulations a power to make them. In all likelihood, they will make those regulations but, if it is not necessary or appropriate, they can choose not to. Where an Act states that the regulations must be made, it imposes a duty on that person to make those regulations. If they do not, they are breaking the law even if those regulations are not necessary or not the most appropriate course of action in a particular set of circumstances. Accordingly, it is appropriate to exercise caution about occasions when a duty to do something is imposed since otherwise it could lead to unintended consequences and possibly to unmeritorious litigation about whether a particular duty has been complied with.
Amendments 1, 2 and 3 proposed by the noble Lord, Lord Ponsonby, would require, rather than allow, pension scheme regulations to make provision for a liability owed by a person to a scheme to be reduced or waived. The amendments put forward by the noble Lord, Lord Davies, would amend the Bill so it requires, rather than allows, pension scheme regulations to make provision for transfers into and out of a scheme in relation to remediable service.
As a general point, there are 17 new public service pension schemes in scope of Chapter 1 of the Bill. For each of those schemes there are also connected legacy schemes. Pension provision for these workforces has evolved considerably over several decades. In view of the complex landscape—which the noble Baroness, Lady Janke, referred to earlier—that has resulted from this, it is particularly important that schemes have flexibility to deal with some of the more specific circumstances in which members may find themselves. Therefore, the Bill enables rather than requires regulations to be made in Clauses 16 and 19.
As set out in the consultation response published in February 2021, the Government are committed to taking a proportionate approach to the recoupment of overpaid benefits. The powers provided by Clause 16 allow the Government to uphold this promise. Put simply, when a member owes overpaid pension or lump-sum benefits to a scheme, Clause 16 provides a power to allow scheme regulations to make provision to reduce or waive that member’s liability.
The reasons for the inclusion of Clause 16 should be spelt out, and they are threefold. First, the clause provides that contributions owed by or to a member may be reduced to reflect tax relief that was paid or due on those contributions. The purpose of this is to ensure the member is placed in the correct position net of tax. Secondly, it provides that contributions owed by the scheme to a person under Clause 14 may by agreement be waived. This is to ensure that members who become legacy scheme members under Clause 2(1) and owe contributions as a result, can have that liability waived until they make a choice under Clause 9 whether to receive legacy benefits or instead elect to receive new scheme benefits. Where a member knows they want to receive new scheme benefits, this will allow them to avoid having to pay legacy contributions in the interim period. Corresponding provision is also made for amounts owed by the scheme to the member to be reduced or waived with the member’s consent. Finally, the clause allows schemes to reduce or waive amounts owed by members where that arises other than by choice of the member and requiring the payment would cause undue hardship or prejudice. This is for a small group of members who had tapered protection and will be placed in a worse position regardless of whether they choose legacy scheme benefits or new scheme benefits in relation to their remediable service.
Clause 16 is part of a package of measures intended to mitigate such circumstances. Therefore, it is expected that the responsible authorities and scheme managers will consider using this power in conjunction with the power in Clause 21 to pay compensation and the power in Clause 23 which permits responsible authorities to make regulations setting out the process by which relevant amounts may be paid such as, for example, in instalments.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Viscount for his explanation and for addressing some of the questions which I asked. I will reflect on the answers. I should also apologise to my noble friend Lord Davies as I gave him some bad advice and he did not speak to his amendments. He tells me that similar issues are coming up in the next group; I do not know whether it would be possible for him to speak to his amendments out of order. Nevertheless, having said that, I will reflect on the detailed answer which the Minister has given, and I beg leave to withdraw my amendment.
Lord Davies of Brixton
Member’s explanatory statement
This amendment would require, rather than enable, scheme regulations to make provision about cases where a member has paid voluntary contributions.
Lord Davies of Brixton (Lab)
My Lords, effectively these issues have been presented by my noble friend Lord Ponsonby and I have the great advantage, of course, of having the Minister’s reply to the questions that I have not yet asked. In a sense, I am happy to take them as read.
I do not have an interest to declare but it would be helpful to the Committee if I declared a non-interest: I did have a declarable interest up to the end of August, in that I was a paid adviser to various trade unions on this very issue. Clearly, there would have been a conflict, but I ceased to hold that role at the end of August. The declaration will appear in the register of interests for a year but is no longer valid. I think that covers me for the whole of the Committee stage and that I do not need to say that again.
It might be helpful for the Committee if I say a little more than that, in that I have been a close observer and participant in the process of the reform of public service pensions, it seems, for the whole of the 21st century so far. Although we had the report of the noble Lord, Lord Hutton, in 2011, the process actually started earlier than that in 2005 with what was known as the Warwick accord between the then Labour Government and public service unions. I was involved at that stage, and in the discussions before and after the presentation of the Hutton report. Indeed, if I had to nominate my specialist subject in “Mastermind”, a strong possibility would be public service pensions reform in the 21st century.
These are not exactly random thoughts, but I thought that it might be helpful if I just set out three relevant and little-known facts about public service pension reform. As I mentioned, it did not start with the Hutton report but with the Warwick accord, going back to 2005 and the subsequent public service forum agreement of that year. Major changes took place in public service pensions at that time.
Just to clarify, the reforms were carried out in accordance with the heads of agreement of 15 December 2011 with the then coalition Government. Although it is described as a heads of agreement, it was not a total agreement but, effectively, a decision by the Government that was accepted by some, but not all, trades unions. A background point but an important one is that the new schemes were not worse for everybody. A non-trivial proportion of the public service workforce will gain from the reformed schemes, so the situation is not as simple as it is sometimes presented.
Turning to Amendments 10, 11 and 12, the issue here is that if people had had what they were entitled to following the Supreme Court decision, they might have made different decisions from those which they made at the time. Clause 19 refers to transfers. If you were in the old scheme you decided to make a transfer, but had you been in the new scheme, you might have decided not to, and vice versa. These issues are therefore important. To be honest, I do not envy the job of administering this process, but it is there and the Government are obliged to pursue it.
I listened to what the Minister had to say on the issue of “may” or “must”. I should add that I did some research, along with my noble friend, and we are grateful to the Police Superintendents’ Association for having drawn these issues to our attention. We have with us a magnificent set of legal talent, and perhaps at some stage we might have a definitive view on the difference between “may” and “must”. The problem here is that from the viewpoint of the Police Superintendents’ Association and other members of public service pension schemes, there is a level of mistrust. The issue is not some semantic definition of whether “may” or “must” works; they see “may” and they think, “Maybe the Government are not going to do what they’ve promised.” Saying “We’re going to do it anyway” does not totally answer the question that is put before you by having to choose “may” or “must”, because it invites the rejoinder, “Well, if you’re going to do it anyway, let’s have ‘must’ in there, and everyone can feel comfortable.”
There is no doubt that these issues are going to have to be dealt with in the process of implementing the court judgments, and from the perspective of the scheme member, “must” seems to work. My noble friend and I heard what the Minister had to say, and we will read with interest the precise wording. I take it that the Minister will not be writing separately on the issue, but the statement as set out in Hansard will be the definitive government position and we and the scheme members will study that, come to a view and, if necessary, return to the issue on Report.
I do not know whether I should do this now, but I happily indicate my intention not to push my amendments to Clause 19.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I am so sorry—I am getting slightly muddled. In the interests of clarity, I point out that the amendment proposed is:
“Page 15, line 31, leave out ‘may’ and insert ‘must’”.
I do apologise to the Minister.
Viscount Younger of Leckie (Con)
Just for my own clarity, I thank the noble Lord, Lord Davies of Brixton, for his comments, but he might like to speak to the amendments in this group, which are 4, 5, 6, 7, 8 and 9.
Lord Davies of Brixton (Lab)
Essentially the same background applies: this is the position in which we find ourselves following the Supreme Court judgment. It is a dog’s dinner really. We would never choose to be here but, now that we are here, we have to sort it out—but it is a mess. One of the most complicated issues which will need to be resolved is about people who paid ADCs in one scheme and would not have paid them in the other scheme or did not pay ADCs in the scheme they were in but would have done so if they had been in the other scheme. Some sort of assessment of some alternative reality has to be made, so the issue is complicated.
These amendments repeat “must” and “may” issue—and I have dealt with that—but they also deal with how the issue is resolved. There is a problem with additional voluntary contributions, which people pay voluntarily to secure additional benefits. It clearly is a decision determined by the scheme in which they will accrue benefits. If they misunderstood which scheme they were in, they may well have taken a different decision. The Bill gives the scheme administrator the decision about how that matter is resolved. Amendment 8 would place the decision about how the issue is resolved directly in the hands of the member rather than, as the Bill stands, leaving in the hands of the scheme administrator. It is an issue of the hypothetical: if a member had been in a particular scheme they would have paid contributions. As I understand it—and I would be grateful for the Minister’s clarification—the Bill as it stands deals only with how the contributions that the member has made are handled, but there is also the issue of the additional voluntary contributions that the member did not make but would have made. Finally, Amendment 9 seeks to make it clear, when a refund of contributions is decided on, the contributions that were made will be repaid with interest included in the sum. That covers the issues and I will be grateful for the Minister’s comments. I beg to move.
Viscount Younger of Leckie (Con)
My Lords, here we address six amendments that have been brought forward on Clause 18 by the noble Lord, Lord Davies of Brixton. I note again his declared interests that he pointed out at Second Reading and his expertise in this area, and I very much look forward to his appearance on “Mastermind” on his specialist subject.
Clause 18 provides for scheme regulations to make provision in relation to additional voluntary contributions paid during a member’s remediable service. As the noble Lord, Lord Davies, said, the first two amendments would require, rather than allow, scheme regulations to make provision about these matters. I hope that I can reassure the noble Lord that this is not necessary. I want to give a full response, although not quite as full as on the first group—but it is a full response on some of the important issues that the noble Lord has raised.
The reason this clause is enabling rather than directive is that not all additional benefits purchased during a member’s remediable service will need to be revised as a consequence of the Bill. For example, some legacy schemes provide that members may purchase additional pension by way of a lump-sum payment or periodic additional contributions, so the Government have agreed that members may complete the payment for these benefits when they have already commenced. The resulting benefits will not be changed, regardless of a member’s choice of whether to receive legacy or new scheme benefits. However, making Clause 18 directive would require schemes to vary the benefits, contrary to what schemes and members have asked for and government has agreed to.
The third amendment brought by the noble Lord would extend Clause 18 to require scheme regulations to provide members who were moved to the new schemes but did not make additional contributions with the option to purchase additional legacy scheme benefits, where they can show that they would have done so had they been able. I once again thank the noble Lord for tabling this helpful amendment. The Government will consider the principles underlying it and will take this away before returning with a thorough explanation of how the matter may be addressed in due course. The drafting of this amendment, at present, does not achieve the overall intention here, since Clause 18(1) provides that this applies only to cases where a person has paid voluntary contributions.
The fourth and fifth amendments are concerned with members who did make additional contributions to a new scheme. They would require scheme regulations to provide members with the options available under the Bill—to alternative or equivalent benefits in a legacy scheme, or to compensation for the contributions made. This provision is permissive rather than directive, because not all three options are intended to be used in every case. Alternative benefits are an approach whereby the benefits awarded in the legacy scheme are effectively recreated as though the member’s additional contributions had always been made there. Equivalent benefits are for situations where an appropriate alternative does not exist in the legacy scheme. In such circumstances, a member would instead be offered a benefit in the legacy scheme that is of directly equivalent value. So in both cases, the policy is that the member may choose instead to receive compensation for their additional voluntary contributions, where they do not wish to receive the alternative or equivalent benefit. Making this provision directive rather than permissive would not therefore work, as not all options will exist in all cases. I hope that explanation is clear and helps to answer the questions raised by the noble Lord.
The final amendment brought forward by the noble Lord relates to interest, as he mentioned, and requires that interest is paid on compensation payments. It is a fair point. The Government have committed to pay interest on these compensation payments, and provision is already made under Clause 23 accordingly. With those assurances on all the noble Lord’s amendments, I hope he is willing not to press them.
Lord Davies of Brixton (Lab)
I welcome the Minister’s comments, particularly on unpaid AVCs. I will look forward to his response with interest. In light of his other comments, we will read Hansard with interest and decide what to do on Report. I therefore withdraw Amendment 4.
Lord Davies of Brixton
Member’s explanatory statement
This amendment would require, rather than enable, scheme managers to pay compensation in respect of compensatable losses.
Lord Davies of Brixton (Lab)
My Lords, I shall speak also to Amendments 14 to 19, so it is a bumper bundle. Again, we have the “may/must” issues, and I assume the same position will apply.
Amendment 14 brings us to the issue of Treasury directions, on which we will probably have a more substantive debate in a later group of amendments. There is a general argument about Treasury directions being used in this context—it will be useful to have that debate. The issue raised here is whether it is appropriate to have any directions at all; the issue elsewhere is whether we have directions or regulations. The Bill appears to say that these unknown Treasury directions will lay down how the compensation will be made and the parameters set. I think the strong view here is that it should be in the Bill rather than in directions.
Amendment 15 would add a new subsection setting out where compensation would be paid. I readily admit that it probably needs tighter wording, but it raises the three areas that are of concern to scheme members. Again, I have to mention that the lead here has been taken by the Police Superintendents’ Association.
The first circumstance is where individual scheme members would have made other decisions had they been in another scheme and, because of that, have encountered some financial loss; that is, had they known they were really in scheme B rather than thinking they were in scheme A, their decisions would have been different and, because of that, they have incurred some financial loss. I do not envy the job of working out how to assess losses in these circumstances, but they can be real and important, so the issue needs to be addressed. The example we have been given is where, because of the fall in their income, members have incurred loss in selling and buying a house; they incurred financial charges because they thought their income would be lower as a result of being in a different scheme. However, they were not in a different scheme so they did not need to incur that expenditure.
The second area set out in the amendment again affects the police service in particular and concerns where a scheme member genuinely thought that a binding commitment had been given by the Government on the nature of the scheme to which they belong, and they believe that that binding promise has been broken. This is the subject of legal action at the moment. There is no doubt that it is a real concern; it is going through a legal process. We should recognise the level of concern among members about the losses they have incurred because the Government are resiling from promises which they reasonably thought had been made.
The third area of loss is what is called the pensions trap. I will spend a bit of time talking about that because it has gained considerable traction. The first point to make is that, although the uniformed services—the fire service, firefighters and the police—have made most of the running on this issue, it affects all schemes; well, I have not checked them all, but it affects all the major schemes. It is just that, in the case of firefighters and the police, it is of much greater salience. That is why those services have raised this issue most strongly. I think we would admit that there are also areas of employment where we would be particularly concerned because of what we owe to our uniformed services.
Lord Ponsonby of Shulbrede (Lab)
My Lords, first, I thank my noble friend Lord Davies for his comprehensive speech introducing these issues. I also thank the noble Baroness, Lady Janke, for putting her name to the amendments in my name.
There are two issues raised in Amendment 15 to which I would like briefly to add my voice. These are the realities of the current situation which various police forces have raised with us. As I understand it, proposed new paragraph (b) in Amendment 15 refers to members who were given a commitment that they could retain access to the legacy scheme until their retirement but are facing difficulties because their retirement is based on years of service, not a retirement age. What is particularly concerning is the reported risk that the changes will be disproportionately impactful on female officers, who are more likely either to have worked, or to be currently working, on a part-time basis. That permission has been granted for a judicial review on this issue is testament to the complexities which sit alongside this Bill and which still have to be navigated. The amendment would not alter anything in the Government’s plans but would require this situation to be considered as one type of compensatable loss. I am interested to hear what the Minister has to say on this issue.
Proposed new paragraph (c) in Amendment 15 makes reference to what has been introduced to me as the “pensions trap”—as referred to by my noble friend—in which an officer who makes financial decisions based on one pension will find their contributions from the alternative scheme reduced as a consequence. I look forward to the Minister’s response on this issue. As my noble friend says, it has gained a great deal of traction in the press.
Baroness Janke (LD)
I, too, would like to speak to the amendments in my name. I do not have a great deal to add to what the noble Lord, Lord Ponsonby, has said other than to say that I think that this is a particularly important part of the Bill. We have heard from many people who are affected by this Bill about the need for confidence in the measures contained in it and for trust in light of what happened to lead to the need for this legislation. These amendments are to probe what the Government are planning in terms of a compensation scheme and, as has already been said, the right of appeal and members’ rights as to how their representatives may be involved in any compensation scheme. The requirement for consultation clearly goes without saying, and the Government need to do much more work on this part of the Bill to ensure that members have confidence in it.
The noble Lord, Lord Davies, referred to promises having been made but not being honoured and the fact that many outstanding issues still await resolution. I hope that the Minister can clarify what the Government intend and that the proper process will fill members with confidence and ensure much greater trust than has been the case so far.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Lord, Lord Davies, once again and indeed the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Janke, for their valuable contributions and remarks. Given that the noble Baroness is right that this is an important part of the Bill, I wish to give a pretty full response, so I hope the Committee will indulge me as I want to go through in some detail the issues that have been raised and, of course, answer as many questions as I can.
I start by saying, just as a point of agreement, that this group of amendments seeks to ensure that members are correctly compensated for any detriment that they have suffered as a result of the discrimination that has arisen. I reassure this Committee that this is certainly a shared objective.
The noble Lord, Lord Davies, put forward three amendments to Clause 21. It may be helpful if I set out the intended purpose of this clause. It confers power on scheme managers to make payments in relation to compensatable losses. This is compensation in relation to losses incurred as a result of the discrimination, the remedy provided by the Bill, or in respect of certain tax losses. The clause allows for matters that are not directly remedied by the Bill or scheme regulations to be put right.
Amendment 14 would remove the requirement that losses may be compensated only where they are of a description specified in Treasury directions. However, in the Government’s response to the consultation on remedying the discrimination, we set out that some member representatives and employers considered that there would be a need for consistent treatment across and within schemes.
The Treasury directions are one way in which we intend to ensure that such consistency is achieved. The proposed amendment would remove the central consistency that we have committed to provide and would instead require scheme managers to determine all claims in an exercise of their own discretion alone, which could lead to inconsistent and potentially unequal treatment across schemes. I am sure this Committee would agree that we do not want that. That approach would give rise to the concerns that respondents to the consultation raised. We do not consider that is a responsible or appropriate approach. The Government have committed to providing a consistent and full remedy to members and we believe that will be best achieved by the current drafting.
Amendment 15—which was spoken to eloquently by the noble Lords, Lord Davies and Lord Ponsonby—seeks to compensate members for the closure of the legacy pension schemes and for any contingent decisions taken where a member had a period of remediable service that was under a new scheme. Paragraphs (b) and (c) of the amendment from the noble Lord, Lord Davies, in particular, closely relate to an ongoing judicial review challenge before the courts—which the noble Lord alluded to—and it would be inappropriate to discuss in detail. However, the effect of the amendments would be to provide the substantive remedy that the claimants are seeking in the judicial review claim. It would compensate members who were in scope of transitional protection but have not yet retired and will now be in scope of the prospective measures set out in Clauses 76 and 77 of this Bill. Providing compensation in this circumstance would therefore be contrary to the intention of those clauses that all members are to be treated equally from 1 April 2022 by accruing service in the reformed schemes, regardless of their age.
It is important to stress that the Court of Appeal found in the McCloud and Sargeant case in 2018 that the transitional protections offered under the Public Service Pensions Act 2013 amounted to unlawful discrimination. Accordingly, offering compensation to transitionally protected members would effectively undermine the Court of Appeal judgment by perpetuating this unlawful discrimination through different means. The effect would be that instead of allowing transitionally protected members to continue in service in legacy schemes, they would now be receiving the benefit of financial compensation. Non-transitionally protected members would not receive such compensation, so there would still be an unfair difference in treatment.
I will pick up on a point made by the noble Lord, Lord Davies, to try to be helpful concerning police stakeholders. The Government really do understand the concern raised by stakeholders regarding the difference in when members can access their full pension in the 1987 and 2015 police pension schemes. I can reassure noble Lords that the Home Office is engaging with police stakeholders on these matters. However, it is the Government’s view that it will be appropriate for future pension accrual to occur in a scheme with different retirement provisions, for the reasons set out by the noble Lord, Lord Hutton, in his report. As set out in the consultation response regarding this specific issue, it is right that the Government be able to make changes when they judge it necessary to do so. The commission’s original objectives and recommendations, leading to the 2015 reforms and reform schemes, still hold. The Government therefore consider that this is not appropriate and that it is crucial to the effectiveness of the remedy that the discrimination is not perpetuated.
Returning to paragraph (a) of the amendment, this clause already makes provision for losses that arose as a result of the discrimination; that is covered by the first condition, contained in subsection (4). I hope that I can therefore reassure the noble Lord, Lord Davies, that the amendment is not needed.
The noble Lord has also put forward four amendments to Clause 23. Amendments 16 and 17 would require, rather than allow, scheme regulations to make provision under which interest is required to be calculated and paid on amounts owed to or by members under or by virtue of the Bill, and about the process by which amounts and any interest on them are to be paid; I know that this matter cropped up in debate slightly earlier. Where sums are owed to schemes or members, for example relating to contributions or benefits, Clause 23 provides powers for scheme regulations to make provision about the payment of interest on those amounts. Interest will be added to amounts payable by schemes or members. The Government consider that the addition of interest is necessary to ensure fairness between members. For example, where members owe contributions, their comparators in the scheme will have been paying the correct level of contributions throughout, so would not have had the benefit of the additional money over time. Interest will be paid on benefits or contributions owed to members to reflect that the payments relate to earlier periods of time.
Clause 23 also provides that scheme regulations may make provision about the process by which amounts due to and from schemes are to be paid. This includes matters such as providing for when amounts are to be paid, allowing for those to be paid by instalments if appropriate, netting off amounts owed by a person against amounts owed to a person, and conferring rights of appeal against a decision taken under the regulations. The amendments would require scheme regulations to make such provision. However, the Government do not consider that imposing a duty on schemes to make such regulations would be appropriate. Doing so could lead to vexatious claims that schemes have not made regulations to deal with obscure situations that could arise. Rather, the Government consider that granting schemes a broad power, exercisable in accordance with Treasury directions, is the right approach to ensure that schemes can make all the necessary and appropriate provision in scheme regulations, while providing sufficient flexibility to account for the differences in the public service pension schemes that I referred to earlier.
The noble Lord’s third amendment, Amendment 18, would remove provision for schemes to make a payment only on the making of an application. This provision is there for the benefit of members: for example, members may not wish to receive amounts that they are owed. This could arise if they are an active or deferred member and intend to choose reformed scheme benefits upon retirement in order to avoid double corrections, as envisaged by Clause 16(8).
Member’s explanatory statement
This probing amendment raises the need for information in a remediable service statement to be provided in clear, easy-to-understand language.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group deals with a straightforward issue, which should not need much explanation, but should be at the heart of our deliberations on this Bill. I raised it at Second Reading and it was also raised powerfully by the noble Baroness, Lady Janke, with whom I share this group. I will speak to her amendment within the group.
In recommendations made in 2011, predating the pensions reforms that gave rise to the discrimination that the Bill seeks to address, the Public Accounts Committee recommended that
“HM Treasury should work with employers and pension schemes to ensure that clear and relevant information is provided to employees on the value of their pensions.”
In June this year, a decade later, the PAC reported that it was “disappointed” by the “limited progress” that had been made and that
“more needs to be done to improve employees’ understanding.”
The crucial relevance to the Bill today is captured—one could almost say understatedly—by the PAC when it says:
“The problem has been exacerbated with further complexities being introduced as a result of government’s response to the McCloud judgment.”
I do not need to put too fine a point on how complex the remedy and the legislation before us today are. We are the people attempting to scrutinise it, and we are only too aware of these complexities. Imagine the impact of this sudden deluge of remedies, liabilities, regulations, protections and decisions on those of our public service workers who are building up their pension in their career, perhaps as a teacher, a firefighter or a civil servant. It must be an utmost priority that scheme members are given accessible, timely, easy-to-understand and easy-to-access information to help them to understand what has happened and what it means for them.
Clause 26 makes provision for remediable service statements—essentially, annual benefits statements for members that would include information on the benefits available under the legacy scheme, information on the impact that making certain choices under the Bill would have on those benefits and a description of how and when a choice can be made. This is the primary mechanism in the Bill for providing information to members on how the remedy could have an impact on them.
Amendments 21 to 23 in my name would require the information in those statements to be provided in “clear and accessible language”. Their aim is to probe whether the content included in the statements will be plain-language, practical descriptions of what these options mean for the value of a person’s pension, or whether members will find themselves faced with a complex financial statement that is too difficult to use.
Amendment 25 raises a specific concern around tax returns: ensuring that members have what they need to fill out a self-assessment tax return. For example, members of affected schemes will have to work out tax relief on contributions, as well as their annual allowance and other values. Will a remediable service statement include the necessary information to allow a member to navigate the tax impacts of the changes to their pension status? If not, will financial advice be available to ensure that they can accurately fill out a self-assessment statement, taking the remedy into account?
Finally, Amendment 24 in my name and Amendment 33 in the name of the noble Baroness, Lady Janke, deal with the key to this issue: what guidance, help or services the Government plan to provide to help impacted members to understand what this means for them, and how members will be signposted to them. If a person has no idea what their statement means, how their pension has been affected and when they are likely to be required to make a decision, who do they call? Where do they go for practical advice? I look forward to the Minister’s reply.
Baroness Janke (LD)
My Lords, I very much agree with the points made by the noble Lord, Lord Ponsonby. There is a huge challenge here for the Government. When you think of how many individuals with individual futures will be affected by this Bill, it is something that really needs deep thought in terms of what kinds of guidance and support will be provided, how they will be resourced and how the Government will signpost them.
It does not sound too challenging to say that members get to retirement then make whichever choice is best for them, but actually lots of complicated decisions requiring support and high levels of knowledge need to be taken. For example, in some cases, members may have built up rights that fall due at different ages. If there is no single retirement age, when do they have to make their choice? In some cases, a higher pension may be owed at the time under one set of rules but, as retirement continues, it may turn out that the other set of rules would have given a bigger total pension. Again, help needs to be given.
The Government have already accepted that people with complex tax issues can have financial advice, but what about the millions of public sector workers who will have to make these choices? On financial planning, we encourage people to make plans for their pensions and explore how they are going to live post retirement, but how easy will it be to make a proper plan with the new system being put in place? For example, will the pensions dashboard provide the information they need?
It is an enormous task for schemes to unpick, administer and communicate. Members are going to need a lot of help to understand what is happening, so it would be very helpful to know what the Government intend to provide in the way of support systems to enable members to make the best choices, and to trustees of the pension schemes as well. We welcome how this is to be resourced and I hope that we will have a clear and detailed statement on supporting elements for the implementation of the scheme. I look forward to the Minister’s response.
Viscount Younger of Leckie (Con)
My Lords, once again I start by thanking the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Janke, for introducing this theme and for their contributions. Providing sufficient guidance for members to make informed decisions regarding their pensions is of course of the utmost importance and worthy of proper scrutiny, so I am pleased to respond to their points and hope that I can give reassurances. The noble Baroness is correct that it is a challenge, but I hope that I can prove, or show, that much thought has been put into this important matter already.
Amendments 21 to 25, tabled by the noble Lord, Lord Ponsonby, and Amendment 33, tabled by the noble Baroness, Lady Janke, all deal with the important matter of communication: communicating the impacts of the remedy and the choices available to members. Amendments 21 to 25 seek to ensure that the information provided to members is clear and easy to understand, as well as signposting them to sources of further information and assistance and ensuring that certain tax information is provided. Amendment 33 seeks to require the Government to publish guidance for members and provide further assistance, such as a helpline or online services, as well as laying a copy of such guidance before Parliament and providing a report on the effectiveness of this guidance.
The Government recognise the importance of providing members with clear, accessible and accurate information. It is this information that will inform members’ decisions about whether to receive legacy or reform scheme benefits in relation to their remediable service, or whether to opt for service to be reinstated under Clause 5. Perhaps I may provide reassurance to the Committee on the measures already in the Bill which provide for members to receive information that shows the option of benefits available to them in the form of remediable service statements. That will include details of any lump sum, pension and survivor’s benefits under the scheme. For the vast majority of members, the decision will be very straightforward: the member will simply choose the option that is most valuable to them.
Clause 26 already contains the appropriate provisions as to what should be included in the remediable service statements; for example, subsection (5) outlines that a statement
“must include … a description of when and how any election”
should be made. The information contained in the remediable service statement will be personal to the member. The statement will set out their entitlements and allow them to clearly understand the benefits available, under the options available, to determine which one they wish to take.
The provisions in the Bill are additional to existing requirements under the Public Service Pensions Act 2013—an important point—which already require the public service schemes to provide members with information about their entitlements. Clause 26 ensures that members are provided with additional information, specifically about their remediable service only. To break this down, first, for active members statements will be provided on an annual basis and enable members to see how the two sets of benefits compare as their careers progress and they get closer to retirement. Secondly, for deferred members, a one-off statement will be provided initially but the member will be able to request up to one further statement per year. For pensioner members, and in respect of deceased members, a one-off statement will be provided, ensuring that these members have the information they need to make an immediate choice in respect of their remediable service.
Schemes will also develop further guidance and tools where appropriate; we expect that some will choose to provide retirement calculators, for example. However, in view of the different requirements of workforces, the different methods of communication currently used by schemes and the different tools they already provide, it would not be appropriate for the Bill to require this to take a particular form. To give an example, the NHS scheme is, as the Committee can imagine, one of the largest—if not the largest—occupational pension schemes in the world. It has considerable expertise in providing bespoke member communications, guidance and support. The information required under this clause will supplement and become part of an established service provided for members.
Furthermore, in relation to Amendment 25, it is worth noting that most individuals affected by the Bill will not have to correct their tax position, either through the tax system or by claiming compensation. The Bill also contains various provisions to reduce interaction with self-assessment. In addition, schemes are already required to provide members, where appropriate, the relevant information to complete their tax return on an annual basis, and this information will be updated and provided to the member where their tax position changes. Therefore, this amendment would duplicate the existing processes. However, where there is an interaction with the tax system, the Government recognise that there will need to be further guidance to complement existing HMRC guidance and scheme processes which already provide the required information to complete a self-assessment return, and this will be provided in time to allow members to make an informed choice, which is an important point to make.
I wholly agree that communication with members will be key to the successful implementation of the remedy but I hope I have reassured the Committee that the Bill already provides for all the information required for members to make necessary informed decisions. Taking all this into consideration, I hope that the noble Lord will withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
I thank the Minister for that explanation. I have to say that he did not provide me with a great deal of reassurance because on the one hand he said that all the information will be provided in any event and then, on the other, he said that he recognises that further guidance will be necessary. I am grateful that further guidance will be forthcoming. It is a concern that has been raised directly by the various police forces I have spoken to about this issue. Nevertheless, I beg leave to withdraw the amendment.
Lord Davies of Brixton
(1A) In subsection (3), for “directions” substitute “regulations” .(1B) In subsection (4), for “directions” substitute “regulations” and delete paragraph (c).”Member’s explanatory statement
This amendment requires the calculation of the employer cost cap to be set in accordance with Treasury regulations, rather than Treasury directions. It also removes from the calculation the effect of changes in the cost of connected schemes.
Lord Davies of Brixton (Lab)
Amendment 26 is a twofold amendment. Two issues that are connected, but are potentially distinct, are wrapped into one amendment. On the one hand, the amendment states that the requirements for the cost cap mechanism should be set out in regulations rather than directions; on the other, it states that the cost of remedy should be excluded from the cost cap mechanism. They work together, but they are distinct.
The use of directions as opposed to other means of establishing regulations and subsidiary legislation of any sort is an important issue that potentially needs to be discussed in principle. I shall not start discussing it in principle today. There is a debate to be had and concern that a Government could use directions to exclude important matters from parliamentary scrutiny. It is a real fear that should be taken seriously. However, that is not the case I am making today. There is a general, generic problem with directions.
The argument is related directly to these directions. It is important to understand that “directions” in this amendment are not directions in the current Bill but directions under the provisions of the principal legislation: the Public Service Pensions Act 2013. Section 12 of that Act sets out the basis on which the cost cap mechanism works. It provides in subsections (3) and (4) that the cost cap mechanism should be
“in accordance with Treasury directions.”
The Minister said, quite rightly, that when this Bill went to the Delegated Powers and Regulatory Reform Committee, it had no comment on it. I remind the Committee that it is not the directions in this Bill that I am talking about today but the directions in the principal legislation. The debate on the principal legislation took place on 5 December 2012. In the memorandum prepared by the Treasury, comments were made about these directions. The Treasury’s submission to the committee, which was accepted, was:
“The effect of the directions on the design of the scheme will be subject to parliamentary oversight when the scheme regulations are made. It is therefore considered unnecessary for the directions themselves to be subject to additional parliamentary control.”
My argument now is that the directions—which, coincidentally, were agreed last Thursday—do impinge on the design of the scheme and hence are not subject to regulations and are outside parliamentary control. The specific issue is the generic use of directions, but in this case, the Government are seeking to introduce directions—they did so last Thursday—which do subvert parliamentary control.
They do that in two important ways. The decision is made in those directions that the cost of the remedy should be included in the cost control mechanism. I believe that there is a debate to be had about that issue and the Government are avoiding it by making the decision in the directions.
I must mention again that this is currently subject to legal action—potentially; I am not sure whether or not the formal case has been submitted. A number of trade unions are in the process of challenging the inclusion of the cost of the remedy in the cost control mechanism. Obviously, we cannot interfere in the legal process but, as a matter of parliamentary sovereignty, we need to assert that a decision as important as how the cost of the remedy should be met should be subject to parliamentary oversight.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I wish to speak briefly to this amendment. I open by paying tribute to my noble friend Lord Davies for the expertise with which he has raised these issues surrounding the cost control element. I look forward to a comprehensive response from the Minister on this difficult issue—that would be to the benefit of the whole Committee.
I particularly ask the Minister to respond to the point made by the cross-party Public Accounts Committee that this is the Treasury’s mistake, yet, in the words of the committee:
“The Treasury now wants pension scheme members to pay the estimated £17 billion cost to put that right.”
I want also to touch on the Government’s response to the consultation on the cost control mechanism, which was published only a few days ago, as my noble friend said. I know that the details of the reforms are to be dealt with in future primary legislation, and I am sure that that will be thoroughly debated at the time, but the response did not give us any information on how the proposed reforms interact with the issues that we are dealing with in the Bill in front of us today. This is essentially the question that my noble friend was asking.
The response said:
“The Government will provide further details on … the extent to which there will be any interaction with the McCloud remedy at future valuations, in due course.”
It seems that, at the same time as we are having complex discussions on the immediate impact of the 2016 valuations on members, there is little or no information about how the Government plan to deal with this issue in the long term.
Clause 80 is welcome, but Ministers will be only too aware that it neither fully answers the concerns of the trade unions over the inclusion of the remedy in the 2016 valuations nor sheds any light on the Government’s intentions for the treatment of the remedy costs in future valuations. I understand that this is a complex matter, and I look forward to the Minister walking us through this complex landscape of issues.
Viscount Younger of Leckie (Con)
My Lords, we have come to another important part of the Bill. I recognise that the operation of the cost control mechanism is of considerable interest to the Committee, particularly the noble Lord, Lord Davies, whom I thank once again for his remarks, and the noble Lord, Lord Ponsonby, who—I remind myself—gave some valuable contributions at Second Reading and touched on this topic. We should also remember that the cost control mechanism should be considered within the wider context within which the Bill should be considered.
I hope that my subsequent letters on this topic have proved informative on progress being made in this area. I am happy to be able to expand on some of those key areas during this debate, but obviously there are some questions that need answers arising from this particular debate, and I will do my best to answer them.
First, on the subject of letters, I deposited a letter in the Library last week to bring to the Committee’s attention the fact that, on 7 October, the Treasury published amending directions that will allow schemes to complete the cost control element of the 2016 valuation process. As previously announced, these amending directions confirm that the McCloud remedy will be captured as a member cost in the completion of the 2016 valuations. This is right, given that addressing the discrimination identified in the McCloud and Sergeant judgments, giving members a choice of scheme benefits for the remedy period, involves increasing the value of schemes to members.
This matter led to a couple of questions being raised, first by the noble Lord, Lord Davies, who made the point that he thought that it was not appropriate for members to pay the costs of remedy. Separately, the noble Lord, Lord Ponsonby, raised the question of the inclusion of remedy in the 2016 valuations. Indeed, he questioned the role of the Treasury and government.
Lord Davies of Brixton (Lab)
I thank the Minister for his detailed response and I look forward to the opportunity for more detailed discussion at a meeting. I am not totally convinced, and I suspect that this is something we will return to on Report, but I beg leave to withdraw the amendment.
Baroness Janke
“Review of the impact of this Act on fairness
(1) Within six months of the day on which this Act is passed the Secretary of State must lay before Parliament a review of the impact of this Act on fairness to members in receipt of pensions to which this Part applies.(2) The review under subsection (1) must make reference to the impact of the provisions on women in particular.(3) The review under subsection (1) must make recommendations as to whether further legislation should be brought forward by the Government to try and close the public service pensions gap between men and women.”Member’s explanatory statement
This amendment would require the Government to report on the impact of this Part on fairness, especially with regards to women.
Baroness Janke (LD)
My Lords, this amendment calls for a review of the fairness and just treatment of some of the issues that have already been raised, particularly with regard to disbenefits to members of current schemes. We have heard of those today; the pensions trap was already described in detail by the noble Lords, Lord Davies and Lord Ponsonby. Women police officers are also being unfairly treated in the Bill, in that those who have taken time off for caring responsibilities can make up the time they had lost under the police pension scheme, but under the new scheme, which is based on age, they have to work longer. That is an example of some of the issues caused by the Bill that may not be addressed by some of the amendments we have put forward.
Gender in pensions is not a new issue. The gender pension gap is a serious matter; the average pension pot for a woman aged 65 is one-fifth of that for a 65 year-old man. Women receive £29,000 less state pension than men, over 20 years. This deficit is set to continue, closing by only 3% by 2060. This amendment seeks to highlight the importance of this issue and the need for urgent measures to address it, so we are raising specific disbenefits in the new scheme, particularly in relation to women and the gender pension gap. I look forward to the Minister’s response.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak briefly on this matter, but I acknowledge its importance and I thank the noble Baroness, Lady Janke, for raising it. The amendment touches on a number of key issues that we have debated today: the long-term oversight of the Bill and its impact; fairness, particularly the consequences for women and part-time workers; and the need for decent, accessible information for workers on the value of their pensions. We have seen what happens when the effects of pensions legislation are not fully taken into account or monitored. It results in the Bill in front of us and all the related complex consequences we see here today.
On the gender pension gap, during the course of today, we raised specific concerns about the different impact some changes will have on women, who are more likely to have been part-time workers or to have taken time out of their careers for caring responsibilities, leaving them with interrupted contributions and interrupted years of service. The noble Baroness made this point all too clearly. What is particularly shocking about the gender pension gap is how little it is commonly talked about and recognised. I hope that this Committee stage will slightly raise the profile of the issue, but I know that the noble Baroness, Lady Janke, as well as my noble friend Lady Drake and others, has consistently raised it across the House and brought it to the Government’s attention at every opportunity.
The cross-party Women and Work All-Party Group has called on the Government to “take urgent action” to close the gap which, as it points out, has persistently
“remained at about 40% for the last five years”.
The recommendations of the all-party group include that:
“The Government should publish guidance directed at women on how to adequately prepare for retirement and encourage employers to calculate their gender pension contributions gap in order to compare this to their gender pay gap data.”
There is cross-party understanding of this issue and cross-party support for it has been raised in other forums. What is needed to tackle it adequately is political will. I look forward to the Minister’s reply.
Viscount Younger of Leckie (Con)
This was a much shorter debate. I begin by thanking the noble Baroness, Lady Janke, and the noble Lord, Lord Ponsonby, for the points they made and for raising this important matter. As I touched on earlier in debate, of course I agree that fairness and equal treatment lie at the heart of the Bill—that is, fairness between lower and higher earners and fairness for the taxpayer—as well as the future sustainability and affordability of public service pensions.
Let me go further. The Government agree with the importance of assessing the impact of the Bill on members of the public service pension schemes with protected characteristics, including—importantly—women. This is why the Government sought responses to the consultation on equalities impacts and conducted a full equalities impact assessment of the Bill, which was published alongside its introduction. In addition, when making the necessary changes to their scheme rules to deliver remedy, schemes will carry out any appropriate analysis of equality impacts for their specific schemes alongside consultations on these changes, in compliance with the public sector equality duty contained in Section 149 of the Equality Act 2010.
The Government’s equalities analysis highlights a number of important features of this Bill, which aims to ensure equal treatment between men and women. I note the points made by the noble Lord, Lord Ponsonby. For example, with regard to the main public service schemes, requiring members in scope of remedy to choose their benefits long before retirement could disadvantage women, who may be more likely to take a career break or work part time between implementation of the remedy and their retirement. By allowing this choice to be made at retirement, the deferred choice underpin avoids additional complexity for these groups by allowing them to make their decision in full knowledge of how part-time work or career breaks have affected their earnings and pension accrual. Similarly, by making remedy available to individuals who were in service on or before 31 March 2012 but subsequently left and rejoined, provided that their break in service was less than five years, the Bill ensures parity for groups that may have been more likely to take career breaks—for example, to care for young children or elderly relatives.
The Bill also provides that, from 1 April 2022, all public service workers who remain in service will do so as members of the reformed schemes, which provide career average—so-called CARE—benefits. CARE schemes offer fairer outcomes to those who experience lower salary progression over the course of their careers. As such, statistically, a higher proportion of women and those with other protected characteristics are likely to be better off under CARE schemes, which are broadly more beneficial for lower and some middle earners. The Bill also provides that men and women in the same scheme and of the same date of birth will have the same scheme normal pension age—NPA—under their particular reformed scheme design, and the same NPA for their legacy scheme benefits.
More broadly, the Government recognise the importance of public service pensions in addressing the pensions gap in society between men and women. As women make up roughly 65% of active public service pension scheme members, the provision of generous defined benefit public service pensions actively serves to reduce that gap. Nevertheless, the Government recognise that, in the public sector, differences remain in average annual pension payments and accrued pensions; this was alluded to by the noble Baroness, Lady Janke. However, these reflect past differences in earnings over members’ careers rather than differences in their pension terms.
Therefore, the best way to combat differences in pensions accrual is to tackle the gender pay gap and promote equal opportunities for career progression, regardless of sex or other protected characteristics. The Government are taking active measures on both, including through mandatory gender pay gap reporting. As a result, the gender pay gap continues to be lower in the public sector than the private sector; I have some statistics that I could give to the Committee. As already mentioned, these differences should reduce over time as a result of the move to a CARE benefit design, which all members will accrue from 2022 and which will lead to fairer outcomes for those with lower pay progression.
Given the extensive analysis that has already been conducted and published, as well as the further analysis that schemes will carry out, the Government do not think that a further review is required at this stage. I understand the sentiments behind the amendment but we do not agree that it is necessary. I therefore ask the noble Baroness to withdraw her amendment.
Baroness Janke (LD)
I thank the Minister for his response and take his assurances very seriously. Again, this is perhaps something we need to reflect on as it affects society as a whole. I believe we should use every occasion we can to address these fundamental unfairnesses. Having said that, I am sure we will reflect on this, but at this point I beg leave to withdraw the amendment.
Member’s explanatory statement
This would set the judicial retirement age in the Judicial Pensions Act 1959 to 72, rather than 75. This is a probing amendment to raise the issue of the appropriate retirement age for the judiciary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we now move to a different aspect of the Bill: the retirement age of members of the judiciary. I thank noble and learned Lords who have sat through the past couple of hours of quite detailed discussion of other aspects of the Bill. This amendment has one great merit, which is that it is easy to understand. I remind the Committee that I sit as a magistrate in London.
I raised this subject at Second Reading, as did other noble Lords, and I received a letter from the Minister in which he set out the Government’s view that 75 is a more appropriate age for the retirement of members of the judiciary than 72. He did that based on responses to a public consultation run last year. The letter prays in aid some statistics based on the response to the consultation and some representative bodies, which basically backed 75 over 72. As I made clear in my Second Reading speech, there are other representative bodies which back 72 over 75. Just to repeat what I said in the Second Reading debate, the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland, the President of the Supreme Court, the Lord President of Scotland, the Magistrates’ Leadership Executive, the Chief Coroner of England and Wales and the President of Tribunals favoured 72, not 75.
As somebody who took part in the consultation, I say that the questions in the consultation were not put in the context of whether the increase in the retirement age promotes inclusion and diversity in the magistracy, which is of primary importance—it is superior to other considerations when considering the retirement age—and whether the appraisal system is adequate properly to appraise older colleagues. Here I have to speak frankly, and as somebody who regularly appraises magistrates. There is a prospect of mental decline, which accelerates as one grows older. Although one has to be robust when carrying out appraisals, it can be difficult to say to a long-standing colleague that they should reflect on whether they should continue in their current judicial role. I think it is more likely that those difficult conversations will have to be had if the retirement age is set at 75 rather than 72.
In the Minister’s letter, he gave the proportion of BAME members in different arms of the judiciary: 13% for magistrates, 10% for judges and 17% for non-legal tribunal members. Clearly, there is an aspiration within the Government—and, I know, within the judiciary as a whole—to increase and improve these figures. One of the central points of the Lammy report which I think the Government have accepted is the importance of increasing diversity. I would argue that increasing diversity within the judiciary is more important than, and trumps, increasing the judiciary’s retirement age. Indeed, increasing the judicial retirement age militates against greater diversity. Because there is only a limited administrative resource, the administrative effort should focus on the recruitment of younger people as a whole but particularly from minority groups within our society.
I have put forward my amendment—to have 72 rather than 75—in a constructive way. It is the way to enable colleagues to continue for another two years but also to focus on what I see as the overwhelming importance of increasing diversity in our wider judicial family. I beg to move.
Lord Etherton (CB)
I thank the Minister for his full letter, following Second Reading, and his suggestion of a further meeting. I am very grateful for both of those. I support everything that the noble Lord, Lord Ponsonby, has said and it is a great pleasure to follow him.
I join in on this amendment and support it because of the adverse impact of the increase in the maximum retirement age to 75, rather than 72, on diversity in our most senior courts, especially the Supreme Court and the Court of Appeal. While all salaried judges are critical to the administration of justice, the most senior courts are those that tend to send the clearest message to our nation, and indeed to other countries, of whether or not we value diversity within the judiciary. At present, we lack a sufficiently diverse senior judiciary. While some progress has been made, particularly in the last 10 years, on the recruitment of women—still inadequate—there is a notorious lack of people from a minority ethnic background. Indeed, in the just over four years that I was Master of the Rolls, it was sometimes extremely embarrassing not to have on the panel of judges in the Court of Appeal anybody from such a minority background.
To increase diversity, there must be sufficient opportunities for appointment to the senior courts. This requires existing judges to retire. The increase in the maximum retirement age to 75, rather than to 72, will in effect freeze the opportunity for the advancement of underrepresented groups and the throughput of more diversity within the judiciary. As the noble Lord, Lord Ponsonby, said, all the most senior judges in England and Wales were in favour of an increase in the judicial MRA to 72 rather than 75. The adverse impact of raising the MRA to 75 in a single stride is plain: the average age of judges in the Court of Appeal is just under 64. This means, potentially, that if the MRA is raised to 75 there will be very few vacancies for a further 11 years.
Lord Woolf (CB)
My Lords, it gives me great pleasure to speak after the former Master of the Rolls, an office that I held at one time before becoming Lord Chief Justice, on this occasion for the first time. I am yet hoping to hear from another judge who will be speaking who I have not had the opportunity to hear from.
I was very much a judge at the time that the MRA for a judge was, and had been, 75. In my view and that of my colleagues, that worked admirably. There was no problem about it, subject to the question of diversity, to which I will draw attention shortly, which is a single matter. I emphasise that at Second Reading, the noble and learned Lord, Lord Mackay, intimated that, when he was Lord Chancellor—I was Lord Chief Justice subsequently—the age of 70 was in operation.
As was confirmed by what the noble and learned Lord, Lord Etherton, said, there is no doubt that reducing the age from 75 to 70 did not work. That is why all the judiciary and the former judiciary believe that there is a real and very important need for the age to be increased, for reasons identified by the noble and learned Lord, Lord Etherton. The only question is whether it should be increased to 72 or 75.
I suggest that the view that 72 will have a particular adverse effect on diversity is not correct. We are concerned about a failure to get enough female judges appointed, especially to the important offices, but that depends on their being appointed, not on the date of retirement being artificially restrained to a lower age than it would otherwise be, if the Government’s intentions proceed as they are at the moment.
I have also had experience of indirectly employing judges to the international courts with which I have been involved—this is referred to in my entry in the register. The fact is that excellent judges who are under the age of 75 are able to be recruited for courts in other countries. The fact is that if we go ahead with the lower age, we would be depriving ourselves of useful powers in the judiciary of this country in the highest posts if they are not able to fulfil the term that, as I submit, they should be able to fulfil. If they do not want to stay on until 75, the MRA of course does not have any impact upon their ability to retire at an earlier date.
The important question, therefore, is whether there really is such a dampening effect on the employment of female judges that it has to give way to what should be the natural term of appointment of the most senior judges in this country. I can say only, based on my experience, that I do not think there is any evidence to that effect. The fact is that in the appointment of judges we would like to recruit more of—that is, able judges of the highest quality who are female—into the judiciary, so far we have not been able to recruit them. That is true; we would like to recruit more, but it has not happened. On appointment, the fact is that those who are responsible for appointment take into account, and are perfectly entitled to take into account, where there is a female applicant, the fact that she is female. Of course, because of the need, that means that female judges are in a position where, if they apply to be appointed, they are more likely to be appointed than their male counterparts, because there is a need for females.
I certainly subscribe to the view, especially with appellate courts, that having a female judge on those courts is a matter of the highest importance, and I would be astonished if those responsible for the appointment did not take that into account in selecting who would be appointed. So, on the basis of my experience, I say that we should not, and it is not right to, deprive very good judges of the full term of their appointment if that be an age in excess of what it is now, to 75, because it might mean—although there is no evidence that it does mean—that female judges would need to be appointed. I appreciate that the noble and learned Lord referred to people being cut out, but to say that in the course of a judicial career that goes to an age above 70, a judge is going to be locked out of the opportunity of being appointed because colleagues can stay to 75, I really suggest is unrealistic.
I urge the Government to adhere to the view of the noble and learned Lord, Lord Mackay, and myself that changing the age from 75 to 70 was a mistake—a mistake that this is an opportunity to correct, and we should do that. We will lose, of course, the opportunity to have those five years, which we now have in international courts, but our first responsibility is to the courts of this country and the standards of those courts.
Baroness Hallett (CB)
My Lords, I support the amendment to make the judicial retirement age 72, rather than 75. I should first declare that I was a judge adversely affected by the current mandatory retirement age of 70: I had to retire in 2019. I thought I had a good five years left in me, but it was not to be. None the less, I support the amendment down to 72.
I was also chair of the diversity committee of the Judges’ Council until 2019 and I spent a lot of my professional life trying to improve diversity on the Bench for judges and magistrates. I had some success, but it was limited success. We organised mentoring schemes, application workshops, outreach events of every kind and support of every kind for women, BAME lawyers, employed lawyers, academics and solicitors, encouraging them to apply for a judicial post. I must have spoken to hundreds over the years, and I never once heard an argument that the retirement age was a factor in their not applying for the Bench. There were many other complex factors, particularly for solicitors, and it was not the retirement age.
Baroness Janke (LD)
My Lords, it is clear that everyone in the Room would say that it is important that our senior judges, in the Court of Appeal and the Supreme Court, reflect the society in which we live if they are to be respected and seen as part of the current era. At the moment, they do not, and we are all concerned about this.
From what we hear, the amendment is acceptable and does not have the effect on diversity that raising the minimum retirement age to 75 would. It is worth noting the comments on the Ministry of Justice’s 2020 statistics:
“Although the proportion of judges that are women continues to increase gradually, women remain under-represented in judicial roles in 2020. This is particularly the case in the courts where 32% of all judges, and 26% of those in more senior roles (High Court and above) were women—compared with 47% of all judges in tribunals.”
The BAME situation is much worse:
“The proportion of judges who identify as Black, Asian and minority ethnic … has also increased … but remains lower for court appointments compared to tribunals, particularly at senior levels (4% for High Court and above, compared with 8% of all court and 12% of all tribunal judges). However, the association between age and ethnicity—with lower a proportion of BAME individuals at older ages, and more senior judges being older on average—should be borne in mind.”
I wonder whether the Minister can say whether the Government have thought of doing an impact assessment. The one at the beginning of the Bill does not address this issue at all. If there is some argument about it, it would be good to have an impact assessment that lays out the evidence we have heard from some noble and learned Lords today.
I look forward to the Minister’s response but very much hope that, by the time we get to Report, we have a body of evidence on which to make this judgment. I am sure that the noble and learned Lords here today will be able to make some of that available.
Lord Woolf (CB)
I am sorry; could I just add one thing? The noble and learned Lord, Lord Brown, was sitting here wanting to address the Committee. I know without hesitation or doubt that he was going to support the view I was taking. So, I am afraid that we have to bear in mind that there are some who have a different view from that expressed by other noble and learned Lords and who would take a more relaxed view than has been indicated about the Government’s proposals.
Viscount Younger of Leckie (Con)
My Lords, this has been a rather busy debate. I thank all noble Lords who have contributed, including the noble Lord, Lord Ponsonby, at the beginning, the noble and learned Lords, Lord Etherton and Lord Woolf, the noble Baroness, Lady Janke, and particularly the noble and learned Baroness, Lady Hallett, who I do not think has spoken in any of the debates I have been involved in; she is most welcome. I appreciate the careful consideration that has clearly been given to this knotty issue, and I welcome the opportunity to discuss the matter further and in depth. We obviously covered it in some depth at Second Reading.
I wanted to say something at the outset about Amendment 34, which seeks to raise the mandatory retirement age in the Judicial Pensions Act 1959 to 72, rather than 75 as proposed in the Bill. I point out that the amendment as drafted would have the effect of changing the retirement age to 72 for only a small number of senior judges. However, I understand from the contributions today that this is, if I have got this right, more of a probing amendment, and that its intention is to raise for debate—which we have had today—what mandatory retirement age should be provided for in this Bill for all members of the judiciary. I just wanted to make that point.
I recognise that there are different views, not just among Members of this House but among others outside, including within the judiciary, on the most appropriate age at which members of the judiciary should retire. I therefore appreciate the close interest that this Committee has in the consultation that took place in 2020 on this matter. It is obviously a challenge to get agreement, and I take the view from the noble and learned Lords, Lord Woolf and Lord Etherton, and indeed the noble and learned Baroness, Lady Hallett, that there are definitely different views. We know that.
As the noble Lord, Lord Ponsonby, mentioned, I endeavoured to cover in some detail in the letter I wrote to your Lordships following Second Reading some more information on this issue. However, I welcome the opportunity to provide further reassurance—and I hope I can—on the robust consultation that took place, which has to led to the decision, and to explain why, on balance, the Government feel it is right at this point to raise the mandatory retirement age to 75. I shall expand on that in my remarks.
First, as this Committee will know, a full public consultation ran from July to October 2020 and received 1,004 responses. The vast majority of respondents, 84% in total, believed that the mandatory retirement age should be increased, with 67% of respondents indicating that a retirement age of 75 was the better option—in a measured way and all things considered, I should say. Of the individual respondents who reported their gender, 62% of female respondents supported a mandatory retirement age of 75. But let me now turn to the Government’s rationale for raising the judicial retirement age to 75.
It is interesting to note that there is, of course, a view that the mandatory retirement age should be raised. I think the point was raised that this is about whether it should be either 72 or 75; at least that is some form of agreement. It is important that we set a judicial retirement age which we believe will stand the test of time, given that such changes are once in a generation.
Just to put all this in perspective, the previous adjustment to the judicial retirement age was 28 years ago. I pick up the point raised by the noble and learned Lord, Lord Woolf. In my view, and in his, it would not be ideal to make a modest increase of just two years and then to have to revisit this question in the relatively near future. It is better for the smooth administration of justice that we make a change now—if we want to make a change, and we think it is right—that supports our judiciary to meet the demands of the justice system, both now and in the future.
We have, of course, seen many changes since 1993, when the current retirement age of 70 was set. By 2019, life expectancy had increased for men by 5.8 years and for women by 4.1 years. We have also seen changes in wider societal norms on retirement: the Equality Act 2010 resulted in the removal of a compulsory retirement age from most professions. It is a widely accepted position that the judiciary is different in this respect, and there are very important principles we wish to maintain for setting a judicial officeholder’s retirement age in statute. However, the Government believe that the time is right to review the age at which that should be set. The proposal to increase it now is in line with the wider acceptance in our society that older people continue to make a significant contribution. Indeed, many noble Lords continue to make valuable contributions to the work of this House long past 70 or indeed 72 and even 75. As I expect noble Lords are aware, the average age of Members of this House in January last year was a positively spring chickenlike 77. I think we should bear that in mind.
The noble Lord, Lord Ponsonby, raised appraisal schemes, which I found interesting with my background in human resources. I would love to expand a lot on this, but appraisals are a matter for the judiciary. I shall set out the Government’s position on this as it is an important point. It is not for the Government to direct, but here we are. Having individual assessments undermines one of the core purposes of the mandatory retirement age, which is to maintain public confidence in the health and capability of the judiciary without the need for individual assessments. Individual assessments have the potential to infringe on the principle of judicial independence which is fundamental to our judicial system and must be fiercely protected. Judges must be free to hear and decide cases without the spectre of assessment sitting over their shoulder. Some sitting judges can already have their appointments extended past their compulsory retirement date to 75 without the need for a capability assessment. Subjecting only older judges to individual assessment risks being discriminatory on the basis of age, and we do not currently consider that that would be justified. However, I return to the first point that I made that appraisals are a matter for the judiciary and as I speak for the Government I have to stick with that.
A key issue here is trust. This was mentioned. The legitimacy of our judiciary relies on public confidence that its judgments can be accepted as right and fair. It is very positive that the Ipsos MORI Veracity Index shows a remarkably high level of trust in our judiciary. The 2020 index showed that 84% of the public trust the judiciary. Thank goodness for that. I do not think that more judges, magistrates and coroners sitting up to age 75 will dent that high level of trust.
As the noble and learned Lord, Lord Woolf, said, it is important to note here that the new mandatory retirement is, of course, a maximum, rather than a minimum, retirement age. It is not expected that even a simple majority of the judiciary, and judges in particular, will wish to sit until they are 75, but I take the messages that were relayed by the noble and learned Lord, Lord Etherton, from his experience. I do not dismiss what he said. It again comes back to the balance that we have decided to take. Data from the Forty-Second Annual Report on Senior Salaries showed that from 2011-12 to 2018-19, the average age of retirement across salaried judges in England and Wales was 67, but the Government believe that it is right that this measure would provide the judiciary a little more flexibility over when they retire.
It is known that we already greatly benefit from the expertise of judges older than 70; indeed, many incredibly important inquiries are chaired by former Justices of Appeal and High Court judges whose intellectual capacity was undimmed when they retired at 70. There are also many instances in which members of the judiciary are, at present, able to retire up to the age of 75: a number of judges who, having been appointed before 1995 when the changes to retirement age came into effect, are not due to retire until after 72 or up to 75. Similarly, coroners appointed before the Coroners and Justice Act 2009 do not have a retirement age in statute.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I certainly support 100% the new recruitment programme for magistrates. When I first became a magistrate 14 years ago, there were 30,000 magistrates; there are now 12,000, so it is high time that there was a large recruitment process to address the deficit of BAME magistrates.
The noble and learned Lord, Lord Etherton, kindly supported my amendment and spoke eloquently about the different aspects of the senior judiciary. I say to the noble and learned Lord that I am many things but I am not learned in the context of this Committee. Nevertheless, I am grateful for his support. The noble and learned Baroness, Lady Hallett, spoke with great authority and I hope that the Minister will listen to one particular phrase she used: that the public demand change. It really is not good enough that BAME people are so unrepresented in all levels of the judiciary.
One of the things I do is to sit in Highbury youth court, where a very large proportion of the defendants we see are from BAME communities. However, it needs to be said that the victims are from those communities as well. The defence lawyers are from those communities, as are the prosecuting lawyers and the legal advisers. Obviously, the youths are under 18 but all the professionals I am talking about are in their 20s, 30s and early 40s. There is a large cohort of expertise coming through the system. When I sit there as a magistrate, I am very frequently older than the grandparents of the youths I am dealing with. The way that we as magistrates are represented when we hear those cases is not right and it needs to change.
I will say a few words about the noble and learned Lord, Lord Woolf —my noble and learned friend, if I may say so. He spoke about the frustrations of trying to recruit women to roles as senior judges but did not address any of the issues about recruiting BAME judges at all levels. That is really the central issue; for me, it trumps all other considerations when we are considering magistrates’ retirement age. Having said all that, I beg leave to withdraw my amendment.
Public Service Pensions and Judicial Offices Bill [HL]
Monday 29th November 2021
(3 years, 7 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Amendment Paper: HL Bill 44-R-I Marshalled list for Report - (25 Nov 2021)
18:23 - Division on Amendment 126 - Ayes: 147 / Noes: 211 - Amendment 126 disagreed.
Member’s explanatory statement
This amendment clarifies that the definition of “remediable service” applies separately in relation to service of a person that takes place at different times (so that a person may have some service that is “remediable service” and some that is not, and may have more than one period of remediable service).
Viscount Younger of Leckie (Con)
My Lords, before I turn to the amendments in this group, I will begin by briefly reminding the House of the driving force behind this Bill and why it is so important that we get it right.
In the light of the Court of Appeal’s judgment, the Government have taken steps to provide an effective remedy to the discrimination that arose in public service pension schemes. The Government have sought to approach this matter responsibly from the outset, and this Bill is key in ensuring an effective remedy for the 3.4 million people who are affected. At the heart of the Bill is fairness and equal treatment for the public servants on whom we all rely. To ensure that we achieve this objective, the Bill is underpinned by the core principles of greater fairness between lower and higher earners, fairness for the taxpayer, future sustainability and affordability of public service pensions.
I recognise that tabling a large volume of amendments is highly unusual at this stage of a Bill’s passage. I want to take a moment to explain why this approach has proved necessary—indeed, crucial—to ensuring a robust and effective remedy. As we have all acknowledged, this is a complex and technical matter. The Bill covers more than 40 schemes which each individually have their own layers of detail and complexity. We are dealing with a somewhat unprecedented issue, and retrospective changes on this scale have not previously been required for occupational pension schemes. However, it is undoubtedly vital that, despite the complexity, we get this right.
Since the Bill was introduced, the Government have continued to work with the schemes, stakeholders and departments to check and re-check it to ensure that it will deliver our commitments to remove the discrimination and offer a complete and effective remedy. The amendments I have tabled today reflect that work and clarify, correct or adjust the Bill to ensure that it works correctly for each of the schemes.
The first group is large and consists of technical amendments. The House will hopefully be pleased to hear that I will not seek to set out the detail of each and every amendment, but I hope your Lordships will find it helpful if I explain the themes that they address. I will of course be happy to turn to specific amendments if your Lordships have any questions.
A large number of the amendments in this group deal with a single theme. In reviewing the Bill, we recognised that a gap exists in how some of the processes operate for members who die before they are able to make a deferred choice. So, 44 amendments are needed to correct the position and ensure that the Bill provides an effective remedy for instances in which a member sadly dies before they reach their retirement. The reason why so many amendments are needed to achieve this outcome is that it must be applied across all the key areas of the remedy so that, for example, any correction of pension benefits or member contributions in relation to a deceased member can be addressed with the member’s personal representatives. The changes must also be made across the provisions for the main schemes and those for the judiciary.
The next theme is amendments which have arisen from work that we have undertaken with each of the public service pension schemes. There are a number of differences between the schemes within the scope of the Bill—for example, to reflect the different needs of the workforces. We have identified some scheme-specific issues that must be reflected in the Bill to ensure that the remedy operates correctly for their members.
Lord Davies of Brixton (Lab)
My Lords, I do not have a current interest to declare, but it would be appropriate to mention that, until the end of August when I gave up the work, I was the paid adviser to a number of trade unions, advising them on this specific issue. It appears in the register of interests for another year, but I no longer have any direct interest.
I have three questions for the Minister. First, he foreshadowed at Second Reading that a raft of amendments was coming. I think it has been suggested that there will be further amendments; clearly not in this House, but there will be a further batch when the Bill is considered in the Commons, which will come back to us. Is this still the case?
Secondly, and more specifically, the Government have made proposals for changes to the cost control mechanism, for which primary legislation will be required. Is it envisaged that they will be made to this Bill or will a separate Bill come forward at a later stage? Before I make my third point, I first thank the Minister very much; he has been extremely open and informative. He has gone out of his way to make sure that we understand what these amendments are for, and I welcome that.
One of the amendments picks up a point I made in my Amendment 6 in Committee relating to the potential payment of remedial AVCs—a wonderful concept. My amendment was obviously very simple, and we now have a much more extensive and substantial change. It will be a complex issue and I recognise that it will be complex to administer. One of the problems we have is that there is a demand, but we have no way of telling how big it will be. The respective scheme advisory boards will have to look at and decide what proportionate and appropriate steps they need to take. I hope the Minister will indicate that they are prepared to facilitate that.
Baroness Janke (LD)
I too thank the Minister for his time and for the engagement he has provided throughout the Bill, particularly regarding these amendments. Considering the scale, complexity and magnitude of the Bill, together with the millions who will be affected by it, I understand that these amendments try to cover a variety of contexts and circumstances to provide a comprehensive remedy to the previous discrimination. I recognise that the whole range of contexts and circumstances means that many will require fine detail. I hope these will, in many ways, support the millions of public sector workers who have suffered discrimination as a result of earlier circumstances.
We will see later some of the specific issues we raised in Committee. I hope the Minister can assure us that these amendments have taken account of those. We will explore that later.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for his explanation of this extensive group of amendments. I too thank him and his Bill team for engaging with me and my noble friend Lord Davies leading up to Report and for the explanation of the late additions to the Bill. The Minister recognised that it is unusual to bring forward such a large number of amendments at such a late stage. However—and this is unusual on our part—we are content that he has done so. As my noble friend said, we understand that there may be further amendments when the Bill goes to the other place.
We have no objection to the amendments. They are largely technical and clarifying in nature. For example, they would ensure that the Bill operates as intended when a member of one of the affected pension schemes dies. I also accept that adding these amendments now will ensure that the Bill will start its scrutiny in the House of Commons with these points clarified, which we welcome. For these reasons, we are content with this group.
Viscount Younger of Leckie (Con)
My Lords, I will make a few very short closing remarks. I thank the noble Lords, Lord Davies and Lord Ponsonby, and the noble Baroness, Lady Janke, for their brief remarks. In particular, I thank the noble Lord, Lord Ponsonby, for his supportive remarks and his understanding—there is probably a better word to use—of what we needed to do for this group of amendments and the next one. I appreciate it.
As I said in my opening remarks, the Bill deals with a complex and unprecedented issue. These amendments reflect the several months of continued work with the schemes, stakeholders and departments to check and recheck the Bill to ensure that it will offer a complete and effective remedy for members affected by the discrimination identified by the Court of Appeal.
The noble Lord, Lord Davies, raised a good point about what might happen next with potential amendments in the Commons, but I reassure him that, as I outlined, this is a highly complex area and the Government are committed to ensuring that members in all relevant schemes receive an effective remedy. We will continue to work closely with stakeholders, including the pension schemes in scope, to consider whether any areas of the Bill require further clarification to ensure legal operability.
I also took note of the points raised by the noble Lord, Lord Davies, concerning additional voluntary contributions and the cost control mechanism. The noble Baroness, Lady Janke, alluded to the fact that we will be addressing them in subsequent groups. I think it probably makes sense to do that, but I have taken note of the noble Lord’s questions, and I am sure he will raise these matters as the afternoon goes on.
Member’s explanatory statement
This amendment clarifies that the second condition (which is concerned with whether service is pensionable) must be met in relation to all of the service in question.
Member’s explanatory statement
This amendment recognises that some legacy schemes offered transitional protection to people who met conditions relating to a lower age than normal pension age.
“(5) The third condition is that the person—(a) was, on 31 March 2012 or any earlier day, in service in any employment or office that is pensionable service under—(i) a Chapter 1 legacy scheme,(ii) a judicial legacy scheme (within the meaning of Chapter 2), or(iii) a local government legacy scheme (within the meaning of Chapter 3), or(b) is not within paragraph (a) and was, on 31 March 2012, in service as a firefighter which entitled the person to be an active member of a relevant firefighters’ legacy scheme.(6) The fourth condition is that there is no disqualifying gap in service falling within the period—(a) beginning with— (i) in a case in which the third condition is met by virtue of subsection (5)(a), the day after the most recent day in relation to which that condition is met;(ii) in a case in which the third condition is met by virtue of subsection (5)(b), 1 April 2012, and(b) ending with the day before the first day of the service in question.”Member’s explanatory statement
This amendment adjusts the third condition in this clause to cater for the fact that certain schemes for firefighters gave transitional protection to those who on 31 March 2012 were in active service but were not active members of the scheme. The fourth condition is amended consequentially.
“(a) is pensionable service under—(i) a Chapter 1 scheme,(ii) a judicial scheme (within the meaning of Chapter 2), or(iii) a local government scheme (within the meaning of Chapter 3), or(b) is, as a result of a Fair Deal transfer, pensionable service under a Fair Deal scheme.”Member’s explanatory statement
This amendment ensures that service in a private sector scheme under Fair Deal arrangements (which, before 2013, governed the pension arrangements that had to be offered to those in public service who were compulsorily transferred to the private sector) does not count as part of a “disqualifying gap in service” for the purposes of the fourth condition.
Member’s explanatory statement
This amendment simplifies the condition in subsection (2)(b).
“(a) at any time after the closing date, the person—(i) opted that their service in the employment or office in question should no longer be pensionable service under a Chapter 1 scheme, or(ii) ceased to be in service in the employment or office in question,(b) at any later time before 1 April 2022, the person—(i) opted that their service in the employment or office in question should again be pensionable service under a Chapter 1 scheme, or(ii) resumed service in the employment or office in question,(c) at that time, the rules of the Chapter 1 legacy scheme mentioned in subsection (1) prohibited a person from becoming an active member of the scheme, and”Member’s explanatory statement
This amendment expands the special case dealt with in subsection (3) in two ways. First, so that it covers those who remained in legacy schemes after the closing date, subsequently opted out, and then decided to opt back in to a Chapter 1 scheme; and second so that it covers those who left service in the employment or office in question after the closing date and subsequently resumed service.
Member’s explanatory statement
This amendment ensures that the definition is apt for a case in which the member to whom a remediable service statement relates has died.
“(c) in cases in which any assets and liabilities that are referable to pension contributions made by or on behalf of the person have been transferred out of a partnership pension account, a condition requiring the payment to the scheme of an amount in respect of the transfer.”Member’s explanatory statement
This amendment makes clear that scheme regulations may require that, in a case in which an amount has in the past been transferred out of a partnership pension account, an election under this clause can be made only if a payment in respect of the transfer is made to the Chapter 1 legacy scheme.
Member’s explanatory statement
This amendment clarifies the reference in subsection (7) of this Clause to the definition of “the relevant Chapter 1 legacy scheme” in Clause 4.
Member’s explanatory statement
This amendment clarifies the reference in subsection (7) of this Clause to the definition of “the relevant Chapter 1 legacy scheme” in Clause 4.
Member’s explanatory statement
This amendment ensures that the definition is apt for a case in which the member to whom a remediable service statement relates has died.
“Persons with remediable service in more than one Chapter 1 legacy scheme
(1) This section applies where—(a) an election is made by virtue of section 6 (immediate choice to receive new scheme benefits) in relation to the remediable service in an employment or office of a member (“M”) of a Chapter 1 legacy scheme that is pensionable service under the scheme, and(b) M has any remediable service in that employment or office that is pensionable service under another Chapter 1 legacy scheme.(2) If M is a relevant member within the meaning of section 6 in relation to the scheme mentioned in subsection (1)(b), the election has effect as an election by virtue of section 6 in relation to M’s remediable service that is pensionable service under that scheme (as well as having effect as such an election in relation to M’s remediable service that is pensionable service under the scheme mentioned in subsection (1)(a)).(3) If M is a relevant member within the meaning of section 9 (deferred choice to receive new scheme benefits) in relation to the scheme mentioned in subsection (1)(b), the election has effect as an election by virtue of section 9 in relation to M’s remediable service that is pensionable service under that scheme (as well as having effect as an election by virtue of section 6 in relation to M’s remediable service that is pensionable service under the scheme mentioned in subsection (1)(a)).”Member’s explanatory statement
This amendment ensures that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, the person can opt for new scheme benefits in respect of service in that employment or office in all of those schemes, but cannot opt for new scheme benefits in only some of those schemes.
Member’s explanatory statement
This amendment adjusts the rule in subsection (2) so that it operates by reference to the time that benefits would become payable in accordance with an election (which may be a different time to the time at which benefits would become payable if no election were made).
Member’s explanatory statement
This amendment removes a redundant word from subsection (6).
“Persons with remediable service in more than one Chapter 1 legacy scheme
(1) This section applies where—(a) an election is made by virtue of section 9 (deferred choice to receive new scheme benefits) in relation to the remediable service in an employment or office of a member (“M”) of a Chapter 1 legacy scheme that is pensionable service under the scheme, and(b) M has any remediable service in that employment or office that is pensionable service under another Chapter 1 legacy scheme. (2) If M is a relevant member within the meaning of section 9 in relation to the scheme mentioned in subsection (1)(b), the election has effect as an election by virtue of section 9 in relation to M’s remediable service that is pensionable service under that scheme (as well as having effect as such an election in relation to M’s remediable service that is pensionable service under the scheme mentioned in subsection (1)(a)).(3) If M is a relevant member within the meaning of section 6 (immediate choice to receive new scheme benefits) in relation to the scheme mentioned in subsection (1)(b), the election has effect as an election by virtue of section 6 in relation to M’s remediable service that is pensionable service under that scheme (as well as having effect as an election by virtue of section 9 in relation to M’s remediable service that is pensionable service under the scheme mentioned in subsection (1)(a)).”Member’s explanatory statement
This amendment ensures that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, the person can opt for new scheme benefits in respect of service in that employment or office in all of those schemes, but cannot opt for new scheme benefits in only some of those schemes.
“(6A) A reference in subsection (6) to pension contributions paid by M includes, in relation to any pension contributions paid under a partnership pension account, such sums as are deducted by M under section 192 of FA 2004 (relief at source).”Member’s explanatory statement
This amendment clarifies that “the paid contributions amount” defined in subsection (6) includes tax relief deducted at source.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(5A) A reference in subsection (5) to pension contributions paid by M includes, in relation to any pension contributions paid under a partnership pension account, such sums as are deducted by M under section 192 of FA 2004 (relief at source).”Member’s explanatory statement
This amendment clarifies that “the paid contributions amount” defined in subsection (5) includes tax relief deducted at source.
“(6A) In this section “the appropriate person” means—(a) M, or(b) if M is deceased, M’s personal representatives.”Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(5A) A reference in subsection (5) to pension contributions paid by M includes, in relation to any pension contributions paid under a partnership pension account, such sums as are deducted by M under section 192 of FA 2004 (relief at source).”Member’s explanatory statement
This amendment clarifies that “the paid contributions amount” defined in subsection (5) includes tax relief deducted at source.
“(7A) In this section “the appropriate person” means—(a) M, or(b) if M is deceased, M’s personal representatives.”Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment is in consequence of the government amendment of clause 92 which applies the definition of “voluntary contributions” to the whole of Part 1.
Viscount Younger of Leckie
My Lords, this second group consists of three technical areas of amendments. I reassure the House that my remarks will be somewhat shorter than on the previous group. As before, I will set out the key themes in each area, rather than talking through the detail of each amendment. The three key themes these amendments relate to are: first, matters concerning voluntary contributions; secondly, flexibility in delivering the remedy in respect of judicial scheme members; and, thirdly, the closure of old schemes. Once again, I will be happy to turn to specific amendments if your Lordships have any questions they would like to raise.
Before I turn to the first area of amendments, which relate to member voluntary contributions, I thank the noble Lord, Lord Davies of Brixton, to whom I am most grateful for raising this matter in Grand Committee, which has assisted the Government in developing these new amendments. I gave the noble Lord assurances in Grand Committee that the Government would consider how the Bill should provide for members who were prevented from making voluntary contributions to the legacy schemes as a result of the discrimination that arose, and I am pleased to be able to bring forward amendments to that effect now.
First, these amendments insert new clauses so that scheme regulations may allow members to enter into remedial voluntary contributions arrangements where they would have done so had the discrimination not arisen. Additionally, the amendments ensure that information that must be provided to members includes information about remedial voluntary contribution arrangements as well as details of the eligibility criteria and the process for entering into those arrangements.
Secondly, these amendments will amend Clause 18 to ensure that the provisions work correctly in relation to persons other than a member who may obtain rights in relation to a member’s voluntary contributions.
Thirdly, the amendments clarify that, where compensation is paid to members of the judiciary representing an amount that was paid as voluntary contributions less the tax relief they received at the time, any rights that were associated with those contributions are extinguished. The amendments also clarify that, where the member is deceased, the compensation should be made to the member’s personal representatives.
Finally, the amendments add a new clause to provide that no new arrangements to pay voluntary contributions may be entered into after 31 March 2022 in a legacy scheme. This reflects the fact that the legacy schemes will close on that date. However, any existing voluntary contributions arrangements that members may have entered prior to 1 April 2022 may continue. Additionally, this prohibition does not apply to the new clauses which permit members to enter into remedial voluntary contributions arrangements in the specific circumstances I have set out.
Let me now turn to the second area of amendments in this group. These are technical amendments required to ensure the remedy can be applied most effectively in respect of judicial scheme members. Clause 65 defines the election period as a three-month period beginning with such date as is specified by the relevant authority and that the relevant authority may extend the election period in relation to a particular person, if they consider it just and equitable to do so.
It is important that judges in scope of the remedy have enough time to make an informed decision regarding their scheme membership for the remedy period. Therefore, amendments are made to Clauses 65 and 60 to provide for further flexibility to respond to judges’ individual circumstances by allowing for there to be more than one election period, and for an information statement to be sent to each member before the start of their respective election period.
Finally, I come to the third and final area in this group. This last area amends the valuations and governance framework for public service pension schemes to ensure that it operates correctly when old schemes established under the Public Service Pensions Act 2013, or its Northern Ireland equivalent, are closed and new schemes are established. In the present context, these amendments are most relevant to the reformed judicial pension scheme that is set to replace the 2015 scheme. However, the same issues will arise if, in future, other schemes are closed and new ones created.
Schemes that are closed to future accrual do not require future stand-alone valuations. A new clause will ensure that these are no longer required and that an employer cost cap need not be set for the purpose of measuring changes in the costs of those schemes under the cost control mechanism.
The new clause will also allow existing governance frameworks to be carried over from old schemes to new schemes. Additionally, an amendment to Clause 80 will ensure that the cost control mechanism can operate correctly by ensuring that the employer cost cap of a new scheme can be set after the regulations have been created.
I hope the House will agree that, important though they are, all three sets of amendments I have outlined in this group make necessary technical changes to the existing legislation so as to ensure that the remedy can operate as intended. With that, I beg to move.
Baroness Janke (LD)
My Lords, I thank the Minister for responding to many of the issues that arose in Committee and welcome the additional flexibility with regard to the voluntary contributions and the period when remedial contributions can be made.
I would like to question the eligibility for voluntary contributions. One of the areas we discussed was about people—for example, with caring responsibilities—who would wish to make up their pension and in their legacy scheme would have been able to do that. Examples include women who have taken time out to look after children or people with caring responsibilities who have done the same. Will these members have the chance to make these remedial contributions to augment their pensions, as they would have been able to within the legacy scheme? Perhaps the Minister could clear that up for me.
Lord Ponsonby of Shulbrede (Lab)
My Lords, once again I thank the Minister for his explanation of this group. We are content for these changes to be made to the Bill. I particularly welcome the provisions on voluntary contributions, which will now allow for a member to make voluntary contributions where they would have done, but did not due to the pension changes that led to the arising discrimination. This responds to a concern raised by pension schemes and by my noble friend Lord Davies in Committee, which was recognised by the Minister. I wonder whether the Minister can give us an assurance that more information will be forthcoming, over the Bill’s passage through the Commons, on how this will be provided for in practice.
I also welcome the provision providing flexibility for judges over their election period and that every member must be provided with an information statement by the scheme before their election period starts. At later stages this afternoon we will come back to this question of how information and guidance are provided to members and how they will access support. That is in an amendment to be moved by the noble Baroness, Lady Janke. I am glad to see that this has been recognised, at least to some extent, in this group. We are happy to support these amendments.
Viscount Younger of Leckie (Con)
My Lords, once again, my closing remarks will be relatively brief. I thank the noble Baroness, Lady Janke, and the noble Lord, Lord Ponsonby, for their broad support for these amendments. As one or two questions were raised, I will give some more information on additional voluntary contributions, which may be helpful, particularly with regard to the question on eligibility raised by the noble Baroness.
The proposed new clauses provide that scheme regulations may not permit a member to enter into such arrangements after one year from the day on which the member is provided with their remediable service statement, or their information statement in the case of the judiciary, or such later time as the scheme manager considers reasonable. The proposed new clauses will be subject to Treasury directions, which I understand we will be speaking about in a later group—under Clause 24 for Chapter 1 schemes and under Clause 58 for judicial schemes. This is set out in Amendments 45 and 90, and is consistent with the similar powers in Part 1 of the Bill. These directions will help to ensure that scheme regulations take a consistent approach, which is very important in providing members with remedial voluntary contribution arrangements.
I hope that this offers some explanation but, again, bearing in mind the technical nature of the noble Baroness’s question, I will be keen to read Hansard and will write if further information is required.
Member’s explanatory statement
This amendment recognises that persons other than the member who pays voluntary contributions (for example their spouse) may obtain rights in consequence of the contributions.
Member’s explanatory statement
This amendment recognises that persons other than the member who pays voluntary contributions (for example their spouse) may obtain rights in consequence of the contributions.
Member’s explanatory statement
This amendment is to clarify that a payment of compensation under regulations under subsection (6)(c) of this Clause would, like other payments of compensation by virtue of Part 1 (such as those under Clause 21), be paid by the relevant scheme manager.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(aa) provision about the benefits payable to or in respect of a member who has remediable service in an employment or office where—(i) there is another Chapter 1 scheme that provides benefits for persons in that employment or office, and(ii) the two schemes provide (or in any circumstances might provide) benefits to or in respect of a person in relation to the same period of service;”Member’s explanatory statement
This amendment is to enable provision to be made where service may entitle a person to benefits under more than one scheme (for example, some service in the armed forces entitles a person both to early departure payments under one scheme and (when they are older) to pension payments under another scheme).
“(d) provision about cases in which the scheme administrator of a Chapter 1 scheme pays a liability under section 217 or 237B of FA 2004 (joint liability of scheme administrator to lifetime allowance charge or annual allowance charge);”Member’s explanatory statement
This amendment generalises the power in subsection (2)(d) of this Clause so that it confers power to make provision about any case in which a member’s liability to a lifetime allowance charge, or an annual allowance charge, is paid under the “scheme pays” facility (under which the liability is paid by the scheme administrator and the member’s benefits are reduced in consequence).
“(e) provision about cases in which remuneration is or was payable to a person on the satisfaction of a condition relating to whether any remediable service of the person is or was, or is or was eligible to be, pensionable service under a particular Chapter 1 scheme (including provision requiring any such remuneration that has been paid to be repaid).”Member’s explanatory statement
This amendment is to enable provision to be made under this Clause about employments etc (such as the armed forces) in which a person’s pay may be determined by reference to whether their service is (or is eligible to be) pensionable service under a particular scheme.
“(f) provision about cases in which a former member of the armed forces—(i) is, disregarding section 2 (1), entitled under regulation 19 of AFEDP 2014 (lump sum awards: incapacity for armed forces service) to a payment determined (to any extent) by reference to the person’s remediable service in an employment or office, or(ii) would be entitled under that regulation to such a payment if the benefits payable to the person, so far as determined by reference the person’s remediable service in the employment or office, were new scheme benefits.”Member’s explanatory statement
This amendment is to enable provision to be made under this clause to ensure that the Chapter works fairly for members of the armed forces who would be entitled to an incapacity lump sum under the new armed forces scheme, even if they would not have been entitled to such a payment under the rules of the legacy scheme.
“(2A) Scheme regulations for a Chapter 1 new scheme may make provision about injury and compensation benefits payable under a relevant injury and compensation scheme to or in respect of a member who has remediable service in an employment or office.(2B) Provision made under subsection (2A) may in particular be made by amending the relevant injury and compensation scheme.(2C) In subsections (2A) and (2B) and this subsection—(a) “injury and compensation scheme” means a pension scheme that is listed in Schedule 6 to PSPA 2013 or Schedule 6 to PSPA(NI) 2014 (existing injury and compensation schemes);(b) an injury and compensation scheme is “relevant”, in relation to a Chapter 1 new scheme, if it is connected with the Chapter 1 new scheme;(c) a reference to “injury and compensation benefits” payable under an injury and compensation scheme is a reference to—(i) in the case of an injury and compensation scheme in relation to which Schedule 6 to PSPA 2013 or Schedule 6 to PSPA(NI) 2014 specifies particular benefits, those benefits;(ii) in the case of any other injury and compensation scheme, any benefits payable under the scheme.”Member’s explanatory statement
Where Chapter 1 of Part 1 retrospectively alters pension benefits payable to or in respect of a person, this may require retrospective changes also to be made to injury and compensation benefits to which the person is entitled (for example where their amount is calculated in a way that takes account of the amount of pension benefits payable). This amendment provides a power to ensure that appropriate provision can be made in such cases.
“(a) provision modifying any provision of this Chapter in its application to persons of a description specified in the regulations;(b) provision corresponding to, or applying, any provision of this Chapter, with or without modifications.”Member’s explanatory statement
This amendment clarifies the way in which special cases may be dealt with in regulations.
“(4) In this section— “AFEDP 2014” means the Armed Forces Early Departure Payments Scheme Regulations 2014 (S.I. 2014/2328);“modifying” includes disapplying or supplementing (and cognate expressions are to be construed accordingly);“scheme administrator” has the same meaning as in Part 4 of FA 2004 (see section 270 of that Act);“the armed forces” has the same meaning as in PSPA 2013 (see paragraph 8 of Schedule 1 to that Act).”Member’s explanatory statement
This amendment inserts definitions required for other government amendments of this Clause.
Member’s explanatory statement
This amendment ensures that, where a member has died, compensation can be paid to the member’s personal representatives if they incur a compensatable loss.
Member’s explanatory statement
This amendment ensures that, where a member has died, compensation can be paid to the member’s personal representatives if they incur a compensatable loss.
Lord Davies of Brixton
“(6A) In subsection (5), a loss “attributable to the application of any provision of, or made under, this Chapter” includes a loss incurred by a member with remediable service who—(a) is transferred to the new scheme and reaches the required number of years of pensionable service to retire with full benefits under the legacy scheme, but(b) is unable to access the full value of those benefits because they must continue to work to retire with full benefits under the new scheme.”Member’s explanatory statement
This amendment provides that certain losses arising from the interaction of the rules of the new and legacy schemes respectively will be compensated.
Lord Davies of Brixton (Lab)
My Lords, this amendment is about what has been termed “the pension trap”. Much concern has been expressed about this phenomenon by different groups and members of different schemes, not least the Police Superintendents’ Association and the Fire Brigades Union. It is important to be clear that this issue affects all the major public service schemes. It is more salient in the uniformed service schemes as they previously had a much lower pension age, so the impact of the pension trap is more significant, but it runs through all the schemes. When you put two schemes together that work on significantly different bases, problems can arise that perhaps we should have spotted at an earlier stage of the discussions on the scheme.
The key issue concerns where you combine schemes with different normal retirement ages in the legacy and new schemes respectively, and the impact of extending working lives in that situation. Extending working lives has been a theme of the reform of public service pensions, so we should perhaps have thought through this a little more clearly. I may have been a little to blame myself in my previous life. When the issue was first raised I was somewhat doubtful but, the more I have looked at it, the more I have come to appreciate that it is a real problem.
The underlying problem is where the combined benefits, old and new, do not reflect the benefits that the members lose by having a later retirement age. They suffer a net loss. With most private sector schemes and the new state or public service schemes, if you defer your retirement, you get some credit: you lose a year’s worth of pension because you have decided to retire a year later, but the money that you have surrendered by doing so is used to increase the subsequent pension. Whether you take the pension at 65, 60 or 67, overall, the broad value of your benefits remains the same. This contrasts with the situation in most, if not all, of the significant public service schemes, where, if you defer your retirement, you simply lose that year’s benefit and receive no credit for it. The reason for this difference between public and private schemes is lost in the mists of time.
Baroness Janke (LD)
I thank the noble Lord, Lord Davies, for his explanation of the amendment. I know we had quite a lot of discussion about this in Committee. My understanding of it in this specific case is how it affects members of the Police Superintendents’ Association. Previously, a number of years’ service entitled them to their pensions whereas the new scheme is age-related. As the noble Lord, Lord Davies, said, that prevents them being able either to retire early and still have their pension, as was guaranteed, or work later to augment their pension.
This is an important issue, particularly in terms of public services such as the police, where undertakings were given and promises made. These were parts of agreements about pay levels and general conditions of service. So I believe the Government have some obligations here, and I very much hope that this can be looked at further as the scheme progresses and that it can be evaluated and solutions found. I hope the Minister can give us some clarification on that. I certainly support the spirit of the amendment and hope that we can resolve this in future.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my noble friend Lord Davies has given a thorough explanation of this issue, which will impact members of certain public service pension schemes. I simply echo the hope that the Government will look carefully at this issue before the Bill goes into its Commons stages.
To reinforce the point made by the noble Baroness, Lady Janke, the Police Superintendents’ Association has reported that this issue is one of the most-raised questions in sessions that it is holding with its members, and it is trying to talk through the possible remedies and related pension issues as they affect police superintendents. This is an unintended consequence that has arisen due to the current complexities, rather than an intentional outcome of what the Government are seeking to do.
With that in mind, could the Minister inform us, first, whether the Government have considered ways to remedy this issue, in which certain members will be caught, and, secondly, what ongoing consultation and engagement are the Government undertaking with those who are affected? I will be interested to hear the Minister’s response.
Viscount Younger of Leckie (Con)
My Lords, I thank the noble Lord, Lord Davies of Brixton, for raising this issue again today, and I thank other noble Lords for their comments.
Clause 21 provides the power for scheme managers to pay compensation for certain losses incurred by members. Compensation can be paid for losses that satisfy any of the three conditions set out in subsections (4) to (6) and are of a description specified in Treasury directions.
It might be helpful for the House if I set out the background and purpose of the clause. I hope I can provide the clarifications that have been asked for by the noble Baroness and both noble Lords. The purpose of the clause is to confer power on scheme managers to make payments in relation to compensatable losses. This is an important element of the remedy provided by the Bill. The Government have set out to Parliament, in public announcements and to the courts that we will take steps to remedy the discrimination that occurred when transitional protection was provided to some members when the public pension schemes were reformed in 2015. That means taking steps to place members as far as possible back into the position where they would have been had the discrimination not occurred.
Clause 21 provides for compensation in relation to losses incurred as a result of the discrimination or the retrospective remedy provided by the Bill, or in respect of certain tax losses. The clause allows for matters that are not directly remedied by other provisions of the Bill or by the intended scheme regulations to be put right. As I understand it, having listened carefully to the speech from the noble Lord, Lord Davies, the intended effect of his amendment is to compensate members who reach the required length of service to retire with full benefits in their legacy scheme before they reach the necessary age to retire with full benefits in their reformed scheme. The amendment appears to relate closely to representations made by police staff associations, which a number of speakers mentioned, regarding members of the 1987 and 2015 police pension schemes who reach 30 years of service in the legacy pension scheme before reaching minimum pension age in the reformed scheme.
However, by referring to “full benefits” in the reformed pension scheme, the noble Lord’s amendment appears to go considerably beyond these representations and proposals, effectively requiring compensation for those below normal pension age, not minimum pension age, in the reformed scheme. I know that he raised the question of whether this applies to all public servants. Perhaps I may just gently put him right—I defer to his greater knowledge but I will put him right on this—that it does not.
As implied by the reference to the required number of years in the amendment text, this issue arises for members of schemes where retirement on full benefits is based on length of service rather than age. The 1987 police pension scheme falls into that. Members of other public service pension schemes will often move from a scheme where the normal pension age is 60 to a scheme where the NPA is equal to state pension age. However, it is not quite the same issue as the normal pension age and a legacy scheme, for these members will be higher than the minimum pension age in their reformed scheme. I hope that offers a reasoned explanation.
Turning to the police pension scheme, under the Bill all members in active service on 31 March 2022 will be moved into the reformed 2015 police pension scheme in respect of service from 1 April 2022 onwards. That is what is known as a “prospective remedy” to ensure that all active members are treated equally from that date onwards. I am grateful for the hard work and extraordinary dedication shown by police officers. The Government support the police and the important work that they do to protect the public, and recognise that they face changing demands from crime.
The reformed police pension scheme is, rightly, one of the most generous pension schemes in the United Kingdom. Moreover, members with service under the 1987 police pension scheme are already afforded significant protections in the Bill, including by maintaining the final salary link of the 1987 scheme and the protection of weighted accrual. This means that accruals in the 1987 scheme will be calculated in relation to a member’s final salary when they retire or otherwise leave the police pension scheme of 2015 in the future, not their salary at the point when they leave the police pension scheme of 1987 on 31 March 2022. The improved accrual rate linked to length of service in the older scheme is also protected and will remain the same in relation to service in those legacy schemes.
The Government have been considering the issues raised by the police representatives and this amendment carefully, including the question of whether there are viable policy mitigations. I want to answer the important point raised by the noble Lord, Lord Ponsonby, on engagement. The Home Office is also currently consulting on detailed regulations to implement the prospective McCloud remedy for the police pension scheme; I hope that provides some reassurance that this is an important matter. That includes communication as well. However, the Government must not take action that would be contrary to the Bill’s intention to remove the discrimination identified by the courts and to ensure that all members are treated equally from 1 April 2022 by accruing service in the reformed schemes, regardless of their age.
It is important to stress that the Court of Appeal found in the McCloud and Sargeant cases in 2018 that the transitional protections offered under the PSPA 2013 amounted to unlawful discrimination against younger members, because they allowed older members to accrue service in the legacy schemes for longer because of their age. Accordingly, offering compensation to members depending on their age and resulting position relative to service length and normal pension age would risk perpetuating such unlawful discrimination through different means. This is an important point of clarification for the noble Lord, Lord Davies.
I thank the noble Lord for bringing attention to this issue and reassure him that the Government have been considering the position of these members, including the viability of policy solutions such as the proposal submitted by police staff associations. However, careful consideration must be given to the need to avoid introducing new discrimination against other pension scheme members—I made this point earlier—and a broadly drafted amendment to the Bill risks doing just that. I therefore ask, with that rather full explanation, the noble Lord to withdraw his amendment.
Lord Davies of Brixton (Lab)
I thank the Minister for his detailed reply. At the appropriate time, I will indicate my intention to withdraw the amendment.
First, I want to say that the purpose and intention of the amendment—I never believed that it was complete in itself—was to prod the Government into taking the issue seriously. The problem arises in any scheme where, if you do not take your pension at the scheme pension age, you do not get any credit for giving up the pension that you lose by deferring your retirement. That is the underlying problem, and it occurs across the public sector. It is currently far more acute, as we have been told in detail by the Fire Brigades Union and the Police Superintendents’ Association.
I have no doubt that the real solution to this issue lies in scheme-level discussions, but such discussions will take place only if the Government give an indication that they take this issue seriously and want the respective scheme advisory boards to discuss and address the issue and seek out practical solutions. Whether they can be funded, and the extent to which any solution would fall within the cost cap and so not incur substantial additional cost, would have to be addressed as part of those discussions. That is all I am asking for.
I am grateful to the House for the opportunity to raise this issue. On that basis, I beg leave to withdraw the amendment.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“Remedial arrangements to pay voluntary contributions to legacy schemes
(1) Scheme regulations for a Chapter 1 legacy scheme may make provision so as to secure that a relevant member may enter into remedial voluntary contributions arrangements.(2) In subsection (1)—“relevant member”, in relation to a Chapter 1 legacy scheme, means a member (other than a deceased member) who has remediable service in an employment or office which, after the coming into force of section 2 (1) in relation to the scheme, is pensionable service under the scheme (whether or not by virtue of that provision);“remedial voluntary contributions arrangements” means arrangements—(a) which are entered into by a member after the coming into force of section 2 (1) in relation to the scheme, and(b) under which the member pays voluntary contributions to the scheme.(3) Provision by virtue of subsection (1) may permit a member (“M”) to enter into arrangements only if the scheme manager is satisfied that it is more likely than not that, but for a relevant breach of a non-discrimination rule, M would, during the period of M’s remediable service in the employment or office, have entered into the same or similar arrangements.(4) The provision that may be made by virtue of subsection (1) includes, in particular, provision under which liabilities to pay voluntary contributions that would otherwise arise under the arrangements are reduced by tax relief amounts.(5) In subsection (4) “tax relief amounts” means amounts determined by reference to the tax relief under section 188 of FA 2004 (relief for members’ contributions) that would have been available in respect of the amounts owed if they were paid in a different tax year.(6) Provision by virtue of subsection (1) may not permit a member (“M”) to enter into arrangements after—(a) the end of the period of one year beginning with the day on which a remediable service statement is first provided in respect of M, or(b) such later time as the scheme manager considers reasonable in all the circumstances.(7) Subsection (6) does not affect the continued operation after the time mentioned in that subsection of any remedial arrangements entered into before that time.(8) In this section “non-discrimination rule” means a rule that is, or at any time was, included in a Chapter 1 scheme by virtue of—(a) section 61 of EA 2010, or(b) paragraph 2 of Schedule 1 to EEAR(NI) 2006.(9) For the purposes of this section a breach of a non-discrimination rule is “relevant” if it arises from the application of—(a) an exception to section 18(1) of PSPA 2013 made under section 18(5) to (7) of that Act, or(b) an exception to section 18(1) of PSPA(NI) 2014 made under section 18(5) to (8) of that Act.”Member’s explanatory statement
This Clause makes it possible for a Chapter 1 legacy scheme to make provision giving members with remediable service the facility to enter into new arrangements to pay voluntary contributions. The facility may only be made available to members who show that they would have entered into similar arrangements but for unlawful discrimination, and may be made available only for a limited period.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(ha) the power to make scheme regulations by virtue of section (Remedial arrangements to pay voluntary contributions to legacy schemes) (remedial arrangements to pay voluntary contributions to legacy schemes) and any powers exercisable by virtue of such regulations;”Member’s explanatory statement
This amendment ensures that Treasury directions can be used in relation to remedial voluntary contributions arrangements.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment ensures subsection (3) of this Clause operates as intended in a case in which an amount is payable to or by a person who is not the member who has remediable service (for example a surviving adult or personal representatives).
Member’s explanatory statement
This amendment ensures subsection (3) of this Clause operates as intended in a case in which an amount is payable to or by a person who is not the member who has remediable service (for example a surviving adult or personal representatives).
(d) a description of—(i) the arrangements (if any) that, by virtue of section (Remedial arrangements to pay voluntary contributions to legacy schemes) (remedial arrangements to pay voluntary contributions to legacy schemes), may be entered into under the scheme, and (ii) the circumstances in which, and the process by which, such arrangements may be entered into.”Member’s explanatory statement
The amendment ensures that a statement under this clause includes information to enable the recipient to decide whether they are entitled to enter into new arrangements to pay voluntary contributions, and if so how to go about doing it.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment is to ensure that the definition in this Clause catches all cases in which a scheme makes arrangements outside the mechanism of the Chapter to give a person a remedy for discrimination of the kind the Chapter deals with, including in particular a case in which the discrimination occurred under a different scheme.
Member’s explanatory statement
This amendment clarifies that the definition of “opted-out service” applies separately in relation to service that takes place at different times (so that some service may be “opted- out service” and some may not and a person may have more than one period of opted-out service).
Member’s explanatory statement
This amendment is in consequence of the government amendment of Clause 29(1).
““Fair Deal scheme” means—(a) a pension scheme that, in accordance with the Fair Deal Statement of Practice, has been certified by the Government Actuary’s Department as offering, to persons who have been subject to a Fair Deal transfer, pension arrangements that are broadly comparable with those offered to them before the transfer, or(b) a pension scheme in relation to which the obligation to give such a certificate has been waived in accordance with that statement of practice;“Fair Deal Statement of Practice” means the statement of practice entitled “Staff Transfers in the Public Sector” issued by the Cabinet Office in January 2000, as supplemented and modified from time to time;“Fair Deal transfer” means a transfer of a person’s employment from a public sector employer to a private sector employer in accordance with the Fair Deal Statement of Practice;”Member’s explanatory statement
This amendment adds definitions that are required for one of the government amendments of clause 1.
““a relevant firefighters’ legacy scheme” means—(a) Schedule 1 to the Firefighters’ Pension Scheme (England) Order 2006 (S.I. 2006/3432) (new firefighters’ scheme),(b) Schedule 1 to the Firefighters’ Pension Scheme (Wales) Order 2007 (S.I. 2007/1072) (new firefighters’ scheme),(c) Schedule 1 to the Firefighters’ Pension Scheme (Scotland) Order 2007 (S.S.I. 2007/199) (new firefighters’ scheme), or(d) the Annex to the New Firefighters’ Pension Scheme Order (Northern Ireland) 2007 (S.R.(N.I.) 2007 No. 215) (new firefighters’ scheme);” Member’s explanatory statement
This amendment adds a definition that is required for one of the government amendments of Clause 1.
Member’s explanatory statement
This amendment clarifies that the definition of “remediable service” applies separately in relation to service of a person that takes place at different times (so that a person may have some service that is “remediable service” and some that is not, and may have more than one period of remediable service).
Member’s explanatory statement
This amendment clarifies that the second condition (which is concerned with whether service is pensionable) must be met in relation to all of the service in question.
Member’s explanatory statement
This amendment ensures that 31 March 2012 (or, where the person left pensionable service before then, the final day of pensionable service) is not counted towards a disqualifying gap in service.
“Partnership pension account: requirement to transfer and surrender rights
(1) Subsection (2) applies where—(a) a person (“P”) has remediable service in a salaried judicial office, and(b) any of the remediable service is PPA opted-out service.(2) A legacy scheme election in respect of P may not be made unless—(a) the relevant authority is satisfied that the steps mentioned in subsection (3) have been taken, or(b) the appropriate person has notified the relevant authority that they intend to instigate and facilitate the taking of those steps.(3) The steps are—(a) the transfer of any relevant assets and liabilities to the relevant judicial legacy salaried scheme,(b) the surrender of any entitlement to a pension under the relevant judicial legacy salaried scheme, and any right to a future pension under that scheme, that would otherwise arise under the rules of the scheme in respect of the value of the assets and liabilities transferred, and(c) if at any time any relevant assets and liabilities were transferred out of the partnership pension account (otherwise than in the course of a transfer to the relevant judicial legacy salaried scheme), the payment by the appropriate person to the relevant judicial legacy salaried scheme of an amount, determined by the relevant authority after consulting the Government Actuary, in respect of the value of the relevant assets transferred.(4) Subsection (5) applies where—(a) a person (“P”) has remediable service in a fee-paid judicial office, and(b) any of the remediable service is PPA opted-out service.(5) A legacy scheme election in respect of P may not be made unless—(a) the relevant authority is satisfied that the steps mentioned in subsection (6) have been taken, or(b) the appropriate person has notified the relevant authority that they intend to instigate and facilitate the taking of those steps.(6) The steps are—(a) the transfer of any relevant assets and liabilities to the judicial legacy fee-paid scheme,(b) the surrender of any entitlement to a pension under the judicial legacy fee-paid scheme, and any right to a future pension under that scheme, that would otherwise arise under the rules of the scheme in respect of the value of the assets and liabilities transferred, and(c) if at any time any relevant assets and liabilities were transferred out of the partnership pension account (otherwise than in the course of a transfer to the judicial legacy fee-paid scheme), the payment by the appropriate person to the judicial legacy fee-paid scheme of an amount, determined by the relevant authority after consulting the Government Actuary, in respect of the value of the relevant assets transferred.(7) In this section “the appropriate person”, in relation to a person (“P”) who has PPA opted-out service, means the person by whom a legacy scheme election in respect of P may be made (see section 43).(8) For the purposes of this section assets and liabilities are “relevant” in relation to any PPA opted-out service of a person (“P”) if—(a) they are referable to pension contributions or voluntary contributions that were made by or on behalf of P in respect of the service, and(b) they are held for the purposes of a partnership pension account.This is subject to subsection (9).(9) Where—(a) the total of the pension contributions, together with any voluntary contributions, that were paid by P in respect of the PPA opted-out service, exceeds(b) the total of the pension contributions that would have been payable by P in respect of that service if the service had been pensionable service under the judicial legacy scheme to which the relevant assets and liabilities are to be transferred,the assets and liabilities that the relevant authority, after consulting the Government Actuary, determines are referable to the excess are not “relevant” in relation to the PPA opted-out service.(10) A reference in subsection (9) to pension contributions or voluntary contributions paid by P in respect of PPA opted-out service is a reference to the amount of the contributions paid, net of any tax relief under section 188 of FA 2004 (relief for contributions) to which P was entitled in respect of them.” Member’s explanatory statement
This amendment substitutes Clause 38. The replacement Clause is updated in a number of respects, and now caters in particular for cases in which the member has died, and cases in which transfers have been made from the partnership pension account.
Member’s explanatory statement
In the judicial legacy schemes, the only adult who may be entitled to benefits on a member’s death is a surviving spouse or civil partner. This amendment therefore removes the redundant reference to other adults.
“(5A) If—(a) M is deceased,(b) a PPA lump sum death benefit has been paid on the death of M, and(c) a legacy scheme election has been made in respect of M,the PPA lump sum death benefit is to be treated for the purposes of subsection (4)(a) as a lump sum benefit paid under the scheme in respect of M’s remediable service in the judicial office.”Member’s explanatory statement
Where a person has opted out of the public service pension scheme available to them and instead has a partnership pension account, and the person dies, a lump sum may be paid by the department to the person’s nominated beneficiary (or, in the absence of a nomination, to the person’s personal representatives). Where a legacy scheme election is made in respect of the person, the arrangements for lump sum death benefits under the legacy scheme will apply. This amendment ensures that a correction is made for the lump sum already paid.
““PPA lump sum death benefit” means an amount paid by the relevant authority, on the death of a person who has a partnership pension account, to a person nominated by the deceased or to the person’s personal representatives.”Member’s explanatory statement
Where a person has opted out of the public service pension scheme available to them and instead has a partnership pension account, and the person dies, a lump sum may be paid by the department to the person’s nominated beneficiary (or, in the absence of a nomination, to the person’s personal representatives). Where a legacy scheme election is made in respect of the person, the arrangements for lump sum death benefits under the legacy scheme will apply. This amendment ensures that a correction is made for the lump sum already paid.
“(2) Where—(a) the paid contributions amount for an in-scope tax year in respect of M’s remediable service in the judicial office, exceeds(b) the payable contributions amount for that tax year in respect of that service,the scheme manager must (directly or indirectly) pay an amount in respect of the difference to the appropriate person.(3) Where—(a) the paid contributions amount for an out-of-scope tax year in respect of M’s remediable service in the judicial office, exceeds(b) the payable contributions amount for that tax year in respect of that service,no amount is to be paid by the scheme manager in respect of the difference to the appropriate person.(4) Where—(a) the paid contributions amount for an in-scope or out-of-scope tax year in respect of M’s remediable service in the judicial office, is less than(b) the payable contributions amount for that tax year in respect of that service,the appropriate person must pay pension contributions in respect of the difference to the scheme.(4A) A reference in this section to “the paid contributions amount” for a tax year in respect of M’s remediable service in a judicial office is a reference to the sum of—(a) the aggregate of the pension contributions that (after taking into account the effect, if any, of section 47(2), (4) and (6)) have been paid under the scheme by M in the tax year in respect of so much of the service as was not PPA opted-out service, and(b) where any of the remediable service was PPA opted-out service—(i) the aggregate of the pension contributions and any voluntary contributions that have been paid by M under the partnership pension account in the tax year in respect of the PPA opted-out service, or(ii) if lower, the aggregate of the pension contributions that (after taking into account the effect, if any, of section 39(2) to (5) or 42 (2)) were payable under the scheme by M for that tax year in respect of the PPA opted-out service.(4B) A reference in this section to “the payable contributions amount” for a tax year in respect of M’s remediable service in a judicial office means the aggregate of the pension contributions that (after taking into account the effect, if any, of section 39(2) to (5) or 42 (2)) were payable under the scheme by M for that tax year in respect of the service.(4C) In this section “the appropriate person” means—(a) M, or(b) if M is deceased, M’s personal representatives.”Member’s explanatory statement
This amendment ensures that the treatment of contributions paid to a partnership pension account is properly accounted for; it is also one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment ensures that voluntary contributions paid to a partnership pension account are accounted for net of tax relief.
Member’s explanatory statement
This amendment clarifies the treatment of effective pension age payments under this clause.
“(1A) The rights that would otherwise have been secured by the effective pension age payments are extinguished.”Member’s explanatory statement
This amendment clarifies the treatment of effective pension age payments under this Clause.
Member’s explanatory statement
This amendment clarifies the treatment of effective pension age payments under this clause, and is also one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(2A) In subsection (2) “the appropriate person” means—(a) P, or(b) if P is deceased, P’s personal representatives.”Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(2A) In subsection (2) “the appropriate person” means—(a) P, or(b) if P is deceased, P’s personal representatives.”Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(1A) Scheme regulations for a judicial scheme may make provision under which, in a case in which a person is (by virtue of provision made under subsection (1)) not required to pay an amount to the person’s employer, the scheme manager is required to reimburse the employer.”Member’s explanatory statement
This amendment ensures that, where a person has an obligation to pay an amount to the person’s employer as a result of this Chapter (for example a requirement to repay transitional protection allowance under clause 51) and regulations under subsection (1) of this clause mean that, instead of paying the full amount immediately, the person receives reduced benefits from the scheme in retirement, the scheme is require to reimburse the employer for the amount owed.
Member’s explanatory statement
This amendment is to ensure that the power under Clause 54 is available in relation to the benefits payable to or in respect of any person who has a pension credit or debit under a scheme, whether or not they are regarded as a member of the scheme under its rules.
Member’s explanatory statement
This amendment is to ensure that the power under clause 54 is available in relation to the benefits payable to or in respect of any person who has a pension credit or debit under a scheme, whether or not they are regarded as a member of the scheme under its rules.
Member’s explanatory statement
This amendment is to ensure that the power under Clause 54 is available in relation to the benefits payable to or in respect of any person who has a pension credit or debit under a scheme, whether or not they are regarded as a member of the scheme under its rules.
“(g) provision about cases in which the scheme administrator of a judicial scheme pays a liability under section 217 or 237B of FA 2004 (joint liability of scheme administrator to lifetime allowance charge or annual allowance charge);” Member’s explanatory statement
This amendment generalises the power in subsection (2)(g) of this clause so that it confers power to make provision about any case in which a member’s liability to a lifetime allowance charge, or an annual allowance charge, is paid under the “scheme pays” facility (under which the liability is paid by the scheme administrator and the member’s benefits from the scheme are reduced in consequence).
“(2A) The provision that may be made by virtue of subsection (2)(a) includes, in particular, provision under which—(a) the rights that would otherwise have been secured by the payment of any voluntary contributions are extinguished, and(b) the scheme manager is required to pay the member or, if the member is deceased, the member’s personal representatives an amount by way of compensation equal to—(i) the aggregate of the voluntary contributions paid, less(ii) an amount in respect of the tax relief under section 188 of FA 2004 (member contributions) to which the member was entitled in respect of those payments.”Member’s explanatory statement
This amendment clarifies the nature of the provision that it is envisaged will be made under subsection (2)(a) for the refund of voluntary contributions.
“(a) provision modifying any provision of this Chapter in its application to persons of a description specified in the regulations;(b) provision corresponding to, or applying, any provision of this Chapter, with or without modifications.”Member’s explanatory statement
This amendment clarifies the way in which special cases may be dealt with in regulations.
Member’s explanatory statement
This amendment is in consequence of the government amendment of Clause 92 which applies the definition of “voluntary contributions” to the whole of Part 1.
“(6) In this section—“modifying” includes disapplying or supplementing (and cognate expressions are to be construed accordingly);“scheme administrator” has the same meaning as in Part 4 of FA 2004 (see section 270 of that Act).”Member’s explanatory statement
This amendment inserts definitions required for other government amendments of this Clause.
Member’s explanatory statement
This amendment ensures that, where a member has died, compensation can be paid to the member’s personal representatives if they incur a compensatable loss.
Member’s explanatory statement
This amendment ensures that, where a member has died, compensation can be paid to the member’s personal representatives if they incur a compensatable loss.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“Remedial arrangements to pay voluntary contributions to judicial schemes
(1) Scheme regulations for a judicial scheme may make provision so as to secure that a relevant member may enter into remedial voluntary contributions arrangements.(2) In subsection (1)—“relevant member”, in relation to a judicial scheme, means a member (other than a deceased member) who has remediable service in a judicial office which, after the end of the election period, is pensionable service under the scheme;“remedial voluntary contributions arrangements” means arrangements—(a) which are entered into by a member after the end of the election period, and(b) under which the member pays voluntary contributions to the scheme.(3) Provision by virtue of subsection (1) may permit a member (“M”) to enter into arrangements only if the scheme manager is satisfied that it is more likely than not that, but for a relevant breach of a non-discrimination rule, M would, during the period of M’s remediable service in the judicial office, have entered into the same or similar arrangements.(4) The provision that may be made by virtue of subsection (1) includes, in particular, provision under which liabilities to pay voluntary contributions that would otherwise arise under the arrangements are reduced by tax relief amounts.(5) In subsection (4) “tax relief amounts” means amounts determined by reference to the tax relief under section 188 of FA 2004 (relief for members’ contributions) that would have been available in respect of the amounts owed if they were paid in a different tax year.(6) Provision by virtue of subsection (1) may not permit a member (“M”) to enter into arrangements after—(a) the end of the period of one year beginning with the day on which a statement under section 60 (information statements) is sent in respect of M, or(b) such later time as the scheme manager considers reasonable in all the circumstances.(7) Subsection (6) does not affect the continued operation after the time mentioned in that subsection of any arrangements entered into before that time. (8) In this section “non-discrimination rule” means a rule that is, or at any time was, included in a judicial scheme by virtue of—(a) section 61 of EA 2010, or(b) paragraph 2 of Schedule 1 to EEAR(NI) 2006.(9) For the purposes of this section a breach of a non-discrimination rule is “relevant” if it arises from the application of—(a) an exception to section 18(1) of PSPA 2013 made under section 18(5) to (7) of that Act, or(b) an exception to section 18(1) of PSPA(NI) 2014 made under section 18(5) to (8) of that Act.”Member’s explanatory statement
This Clause makes it possible for a judicial scheme to make provision giving members with remediable service the facility to enter into new arrangements to pay voluntary contributions. The facility may only be made available for members who would have entered into similar arrangements but for unlawful discrimination, and may be made available only for a limited period.
“(3) In this section “relevant amounts” mean any amounts that are payable under or by virtue of this Chapter—(a) by a person to the scheme or to an employer in relation to the scheme, or(b) by the scheme to a person.”Member’s explanatory statement
This amendment broadens the definition of “relevant amounts” so that it covers payments to a member’s employer. It is also one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
“(fa) the power to make scheme regulations by virtue of section (Remedial arrangements to pay voluntary contributions to judicial schemes) (remedial arrangements to pay voluntary contributions to judicial schemes) and any powers exercisable by virtue of such regulations;”Member’s explanatory statement
This amendment ensures that Treasury directions can be used in relation to remedial voluntary contributions arrangements.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment ensures subsection (3) of this clause operates as intended in a case in which an amount is payable to or by a person who is not the member who has remediable service (for example a surviving adult or personal representatives).
Member’s explanatory statement
This amendment ensures subsection (3) of this Clause operates as intended in a case in which an amount is payable to or by a person who is not the member who has remediable service (for example a surviving adult or personal representatives).
“(1) The relevant authority must—(a) prepare a statement in relation to any person (“P”) in respect of whom a legacy scheme election or a 2015 election may be made, and(b) send it to the person who may make the election (see section 43).(1A) Subsection (1) must be complied with before the beginning of the election period in relation to P.”Member’s explanatory statement
This amendment is consequential on the government amendments of Clause 65.
“(ca) a description of—(i) the arrangements (if any) that, by virtue of section (Remedial arrangements to pay voluntary contributions to judicial schemes) (remedial arrangements to pay voluntary contributions to judicial schemes), may be entered into under judicial schemes, and(ii) the circumstances in which, and the process by which, such arrangements may be entered into,”Member’s explanatory statement
The amendment ensures that a statement under this clause includes information to enable the recipient to decide whether they are entitled to enter into new arrangements to pay voluntary contributions, and if so how to go about doing it.
Member’s explanatory statement
This amendment is consequential on the government amendments of Clause 65.
Member’s explanatory statement
This amendment is consequential on the government amendments of Clause 65.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This is one of a number of amendments clarifying or adjusting the processes and powers under Part 1 of the Bill so that they operate as intended in cases in which a member dies.
Member’s explanatory statement
This amendment (together with the other government amendment of this Clause) makes the definition of “the election period” more flexible by enabling different periods to be specified for different descriptions of judge.
“(1A) Different dates may be specified in relation to different descriptions of person.”Member’s explanatory statement
This amendment (together with the other government amendment of this clause) makes the definition of “the election period” more flexible by enabling different periods to be specified for different descriptions of judge.
Member’s explanatory statement
This amendment clarifies the reference to pension contributions in subsection (2) of this Clause.
Member’s explanatory statement
This amendment is in consequence of the government amendment of Clause 64(1).
Member’s explanatory statement
This amendment is in consequence of the government amendment of Clause 92 which applies the definition of “voluntary contributions” to the whole of Part 1.
Member’s explanatory statement
This amendment clarifies that the definition of “remediable service” applies separately in relation to service of a person that takes place at different times (so that a person may have some service that is “remediable service” and some that is not, and may have more than one period of remediable service).
Member’s explanatory statement
This amendment clarifies that the second condition (which is concerned with whether service is pensionable) must be met in relation to all of the service in question.
“Prohibition of new arrangements to pay voluntary contributions
(1) No arrangements are to be entered into after 31 March 2022 under which voluntary contributions are payable by a member of a relevant scheme to the scheme.(2) In subsection (1) “relevant scheme” means—(a) a Chapter 1 legacy scheme (within the meaning of Chapter 1),(b) a judicial legacy salaried scheme (within the meaning of Chapter 2),(c) a local government legacy scheme (within the meaning of Chapter 3),(d) the Judicial Pensions Regulations 2015 (S.I. 2015/182),(e) the Judicial Pensions Regulations (Northern Ireland) 2015 (S.R.(N.I.) 2015 No. 76), or(f) the pension scheme established for certain employees of the Secret Intelligence Service which came into operation on 1 January 1946 and was amended on 1 September 1957 and 1 July 1964.(3) Subsection (1)—(a) does not affect the continued operation after 31 March 2022 of any arrangements entered into on or before that date; (b) does not apply to arrangements entered into by virtue of section (Remedial arrangements to pay voluntary contributions to legacy schemes) or (Remedial arrangements to pay voluntary contributions to judicial schemes) (remedial arrangements to pay voluntary contributions).”Member’s explanatory statement
This Clause sets out the general rule that no arrangements to pay voluntary contributions to legacy schemes may be entered into after 31 March 2022.
“Amendments relating to the establishment or restriction of schemes
(1) PSPA 2013 is amended in accordance with subsections (2) to (7).(2) In section 4 (scheme manager)—(a) after subsection (3) insert—“(3A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1, and(b) a scheme manager is provided for under subsection (1) in scheme regulations for that other scheme.”;(b) after subsection (6) insert—“(6A) The reference in subsection (6) to a statutory pension scheme includes a statutory pension scheme established (under section 1 or otherwise) after the establishment of the scheme under section 1 mentioned in that subsection.”(3) In section 5 (pension board), after subsection (2) insert—“(2A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1, and(b) a pension board is provided for under subsection (1) in scheme regulations for that other scheme.”(4) In section 7 (scheme advisory board)—(a) in subsection (1), for “on the desirability of changes to the scheme” substitute “on—(a) the desirability of changes to the scheme, or(b) the desirability of changes to any other scheme under section 1 which—(i) is connected with it, and(ii) is not an injury or compensation scheme.”;(b) after subsection (1) insert—“(1A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1 which is not an injury or compensation scheme, and(b) a scheme advisory board is provided for under subsection (1) in scheme regulations for that other scheme.”(5) In section 11 (valuations), after subsection (1) insert—“(1A) Subsection (1) does not apply to a scheme under section 1 if— (a) the scheme is connected with another scheme under section 1, and(b) actuarial valuations are provided for under subsection (1) in scheme regulations for that other scheme.”(6) After section 12 insert—“12A Sections 11 and 12: restricted schemes(1) Section 11(1) (valuations) does not require scheme regulations to provide for actuarial valuations to be made of a scheme to which this section applies.(2) Section 12(1) (employer cost cap) does not apply to a scheme to which this section applies.(3) This section applies to a scheme under section 1 which—(a) is a restricted scheme, and(b) is specified for the purposes of this section in Treasury regulations.(4) For the purposes of this section a scheme under section 1 is a “restricted scheme” at any time if any enactment restricts the provision of benefits under the scheme to or in respect of a person in relation to the person’s service after that time.(5) Treasury regulations under this section may include consequential or supplementary provision.(6) Treasury regulations under this section are subject to the negative Commons procedure.”(7) In section 30 (new public body pension schemes), in subsection (1)(e), for “and 12” substitute “to 12A”.(8) PSPA(NI) 2014 is amended in accordance with subsections (9) to (15).(9) In section 4 (scheme manager)—(a) after subsection (3) insert—“(3A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1, and(b) a scheme manager is provided for under subsection (1) in scheme regulations for that other scheme.”;(b) after subsection (6) insert—“(6A) The reference in subsection (6) to a statutory pension scheme includes a statutory pension scheme established (under section 1 or otherwise) after the establishment of the scheme under section 1 mentioned in that subsection.”(10) In section 5 (pension board)—(a) in subsection (1), for “subsection (2)” substitute “subsections (2) and (2A)”;(b) after subsection (2) insert—“(2A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1, and(b) a pension board is provided for under subsection (1) in scheme regulations for that other scheme.”(11) In section 7 (scheme advisory board)—(a) in subsection (1), for “on the desirability of changes to the scheme” substitute “on—(a) the desirability of changes to the scheme, or(b) the desirability of changes to any other scheme under section 1 which—(i) is connected with it, and(ii) is not an injury or compensation scheme.”;(b) after subsection (1) insert— “(1A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1 which is not an injury or compensation scheme, and(b) a scheme advisory board is provided for under subsection (1) in scheme regulations for that other scheme.”(12) In section 11 (valuations), after subsection (1) insert—“(1A) Subsection (1) does not apply to a scheme under section 1 if—(a) the scheme is connected with another scheme under section 1, and(b) actuarial valuations are provided for under subsection (1) in scheme regulations for that other scheme.”(13) After section 12 insert—“12A Sections 11 and 12: restricted schemes(1) Section 11(1) (valuations) does not require scheme regulations to provide for actuarial valuations to be made of a scheme to which this section applies.(2) Section 12(1) (employer cost cap) does not apply to a scheme to which this section applies.(3) This section applies to a scheme under section 1 which—(a) is a restricted scheme, and(b) is specified for the purposes of this section in regulations made by the Department of Finance.(4) For the purposes of this section a scheme under section 1 is a “restricted scheme” at any time if any statutory provision restricts the provision of benefits under the scheme to or in respect of a person in relation to the person’s service after that time.(5) Regulations made by the Department of Finance under this section may include consequential or supplementary provision.(6) Regulations made by the Department of Finance under this section are subject to negative resolution.”(14) In section 31 (new public body pension schemes), in subsection (1)(e), for “and 12” substitute “to 12A”.(15) In section 34 (general interpretation), at the appropriate place insert—““statutory provision” has the meaning given in section 1(f) of the Interpretation Act (Northern Ireland) 1954;”.”Member’s explanatory statement
This new Clause amends the Public Service Pensions Act 2013 (and its Northern Ireland equivalent) so as to clarify and adjust the way the governance of schemes, and the valuation process, work where a scheme established under the Act for a description of persons is closed, and a new scheme under the Act is established for the same description of persons.
Member’s explanatory statement
This amendment is consequential on the new subsection inserted into this Clause after subsection (1).
Lord Davies of Brixton
(1A) In subsection (4) omit paragraph (c).”Member’s explanatory statement
The amendment removes from the calculation of the employer cost cap the effect of changes in the cost of connected schemes, including the cost of rectifying the unlawful discrimination.
Lord Davies of Brixton (Lab)
My Lords, I raised this issue at Second Reading in the context of questioning the use of directions. I believe that there is a general issue here about the respective weight given to primary legislation, regulations subject to approval by one or both Houses, and directions, which are the decision of the Treasury. Clearly, there is a balance to be drawn here on the appropriate level of parliamentary scrutiny; it is a debate that we should have, but it is not one I propose to pursue any more in the context of this Bill.
However, some concerns remain about issues that are being dealt with through directions which, I believe, should be subject to parliamentary scrutiny. In the context of this Bill, there are two issues of concern. The first is the decision that the cost of the remedy—that is, the remedy required to address the issue of age discrimination—should be counted as a member cost in the cost-control mechanism. The second issue is that, in that calculation, the costs of the remedy should be spread over a period of four years.
This is beginning to verge on technical issues but, at heart, these are policy decisions, and ones that should be subject to parliamentary scrutiny. They go far beyond what have been described. This legislation amends the Public Service Pensions Act 2013, and there was a report on that legislation, looking at the directions, which said that the directions did not need parliamentary scrutiny because they were simply technical matters of actuarial practice. My argument today, on those two issues—and I am going to focus only on the issue of whether this is a “member cost”—is around whether this is a technical matter of actuarial practice or whether it is a policy decision that should be subject to parliamentary scrutiny.
There is no doubt that the decision to make this a member cost will mean that members end up paying more money or receiving lower benefits. It will directly affect the benefits that they receive. The issue was raised in Committee, and the Minister at that stage maintained the position that
“Treasury directions … exercise a particular power, rather than creating a new power”.—[Official Report, 11/10/2021; col. GC 353.]
I would argue that the decision to make this a member cost as part of the cost-control mechanism goes beyond the exercise of a particular power and creates a new power, and hence it should be considered as regulations.
This is a complicated issue, and, to understand it, you need to have a clear understanding of the purpose of the cost-control mechanism. It is not, as the Government have suggested, a mechanism for assessing the value of pensions; this is not something that directly affects the calculation of the contribution rate being paid for the scheme. It simply affects the cost-control mechanism, which is the trigger for deciding whether changes should be made to the scheme. The costs of the scheme are the costs of the scheme; whatever the benefits are, they are the costs of the scheme. This is a mechanism for deciding whether those benefits should be changed or, alternatively, whether contributions should be changed.
It has always been accepted that there are certain elements in the calculation involved in the cost-control mechanism that are regarded as member costs that will impact on the cost-control mechanism—but there are also these other elements in the calculation that are employer costs, which do not impact on the cost-control mechanism. The issue has been discussed, and there have been government reports on what counts as a member cost or an employer cost, but they have never considered the issue of the cost of a remedy incurred by the Government’s own error. It was the Government’s mistake to have age discrimination in this scheme and, to address the Government’s mistake, there has to be a remedy. That remedy is the subject of this Bill. Should the cost of that remedy be a cost for the Government, who created the problem in the first place, or a member cost? The Government argue that members are receiving additional benefits and so it is clearly a member cost.
This is an important issue and what I am arguing about now is not an ultimate answer—I have made my position clear; I think it should be an employer cost—but it is not an issue that should be addressed through directions; it should come before Parliament through regulations. Because of the nature of the regulations, they would probably be financial regulations and considered only by the House of Commons. That is effectively what I am arguing, and I have put down my amendment in order to raise this issue. To a certain extent, our deliberations here are not final, because this is the subject of extensive legal action. However, that is nothing to do with the argument today. The argument is technical; it is on the relatively narrow point of whether the cost of the remedy falls to be treated as an employer cost or as a member cost.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I have not participated on this Bill before; indeed, I just want to pick up the point made by the noble Lord, Lord Davies, about the way that more and more government actions are taken by subordinate legislation. I chair the Secondary Legislation Scrutiny Committee, and we produced a report last week entitled Government by Diktat. My noble friend Lord Blencathra, who chairs the parallel committee, the Delegated Powers and Regulatory Reform Committee, produced another report called Democracy Denied?
We all know that secondary legislation it is not well scrutinised. It cannot be amended, and this House and indeed the other place are therefore reluctant to undertake what I call the nuclear option—we cannot amend a bit of it, so we have to reject the whole lot. The last time that happened there was a huge constitutional crisis, to which my noble friend Lord Strathclyde had to set up a committee to answer.
However, we have moved from that unsatisfactory position to one where we now have guidance. Guidance may or may not form part of the regulations; sometimes it says that the guidance “must have regard to” the regulations. What does that mean? Does it mean “I thought about it and I did not want to follow it”, or does it mean “The court will decide, and you had better have a jolly good reason for not complying with it”.
The point from the noble Lord, Lord Davies of Brixton, takes it further away from the control of this House. We have what is now tertiary legislation: directions and decisions made by bodies that are not answerable to Parliament but whose decisions and regulations are enforced and required to be obeyed by every single member of the population of this country. Whatever the rights and wrongs of the point from the noble Lord, Lord Davies—I am not in a position to judge—he raises a very important matter for the House, which needs to be debated and discussed. As we move to new ways of regulating and legislating, because our society is moving on faster than the rather stately pace of primary legislation, we need to find new and better ways of making sure that Parliament, as the legislature, is not subject to the creeping, increasing control of the Executive—the Government.
My committee and my noble friend Lord Blencathra’s committee are pretty convinced that the situation needs seriously addressing here—and of course in the other place, which must lead the way on this—if we are to make sure that the balance, which has shifted, is put back in the right place and in the right form. The speech by the noble Lord, Lord Davies of Brixton, underlines some of the dangers that we are facing by direction, which is not good enough because it does not come before your Lordships’ House or indeed the other place but will nevertheless have a very significant impact for our fellow citizens.
Baroness Janke (LD)
My Lords, I again thank the noble Lord, Lord Davies, for his explanation and for raising these issues, as he did in Committee. I listened again with interest to the noble Lord, Lord Hodgson, as he has intervened in two Bills on the issue of secondary legislation. I am sure that many Members of this House would support his view that there is inadequate scrutiny of secondary legislation and that the House’s powers are so severely curtailed that it requires us to ask whether we adequately exercise our scrutiny of subsequent legislation as we do with primary legislation.
As for the cost cap mechanism, I know that there was great criticism, both from the Public Accounts Committee and the National Audit Office, about the costs of the remedy and how they would be paid for by the members, whereas it was an error by government and it was certainly felt, as the noble Lord, Lord Davies, said, that it should be faced by government. However, the Government have certainly produced a more satisfactory cost cap mechanism, with a number of concessions relating to the future costs of the pensions. We welcome the new arrangements for payments for any breach of the cost cap or floor, which were to be paid for by the members of the new scheme, as we do the widening of the margin for material breach of the ceiling or floor. We also appreciated the new application of the economic test should the cost floor be breached. We feel that the Government have made some attempt to address criticisms of the cost cap mechanism and will follow with interest how that operates in future.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I again pay tribute to my noble friend Lord Davies for his contribution and for setting out the range of concerns surrounding the cost-control mechanism and the inclusion of the remedy as a member cost. I recognise that this question is subject to ongoing legal action and once again put on record that we welcome the provisions in Clause 80, although, as the Minister is only too aware, it does not deal with the wider question of plans for the cost-control mechanism.
Members of the House are not the first to raise questions over the Government’s plans. The cross-party Public Accounts Committee said:
“HM Treasury should have foreseen the age discrimination issue that gave rise to the 2018 McCloud judgment, and putting things right will take many decades to resolve. HM Treasury wants members to pay to put this right—at an estimated cost of £17 billion—despite this being its own mistake.”
That point was repeated by my noble friend Lord Davies and the noble Baroness, Lady Janke.
I look forward to the Minister’s response on this issue but, before I finish, I want to echo one specific question. Am I right that there will be a number of members who will not benefit from the remedy but will be impacted by it if it is included as a member cost?
I listened with interest to the noble Lord, Lord Hodgson of Astley Abbotts, on Parliament being subject to the creeping control of the Executive—I think that is the way he put it. He talked about examples of secondary legislation and indeed gave this as an example of tertiary legislation. I think a lot of us will have sympathy with what he said.
Viscount Younger of Leckie (Con)
My Lords, an amendment has been put forward to Clause 80 by the noble Lord, Lord Davies of Brixton, which concerns the employer cost cap. The noble Lord seeks to amend this clause to prevent the increase in value of schemes associated with the McCloud remedy being accounted for in the cost-control element of the 2016 valuations. I thank the noble Lord for bringing this to the attention of the House and am grateful to him for his prior engagement on the policy.
I can confirm that the Government have received pre-action protocol letters on behalf of some trade unions which have indicated that they may issue judicial review proceedings to challenge the Government’s decision to include the costs of remedy in the cost-control mechanism at the 2016 valuations. As the House will expect, and as the noble Lord, Lord Ponsonby, acknowledged, I cannot comment on the specifics of live or threatened litigation.
I acknowledge and appreciate the support the noble Baroness, Lady Janke, has given in general to the changes we have made to the cost-control mechanism—but there is more I want to say. I will talk through the general background, to reassure the noble Lord, Lord Davies, of the reasons for the Government’s decision. I will start by commenting on the policy rationale, starting with amending directions.
In Grand Committee, I brought to your Lordships’ attention that the Treasury had published amending directions on 7 October 2021 that will allow schemes to complete the cost-control element of the 2016 valuation process. These amending directions confirm that the increase in value of schemes associated with the McCloud remedy will be taken into account in the completion of the cost-control element of the 2016 valuations. The Government believe this is right, given that addressing the discrimination identified in the Court of Appeal’s judgment by giving members a choice of scheme benefits for the remedy period involves increasing the value of members’ pensions.
The cost-control mechanism was designed to assess costs arising from a change in value of schemes to members. Failure to capture the value of the remedy could have meant that members’ benefits may have changed going forwards, based on an incomplete and inaccurate assessment of the value of these pension schemes. This would represent an unacceptable risk to taxpayers, contrary to the objectives of the mechanism.
Turning to some specific detail on ceiling breaches, the Government have previously announced their intention to waive any ceiling breaches that arise from the 2016 valuations, and this is implemented by the current version of Clause 80. However, any floor breaches that occur will be honoured. This means that no member will see a reduction to their benefits as a result of the 2016 valuations. This decision, and the completion of the 2016 valuations, should provide certainty to scheme members over their benefits.
I will attempt at this stage to answer the point raised by my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Ponsonby, about the use of directions. The Government acknowledge the key interest of the House in the scrutiny of secondary and tertiary legislation. The DPRRC considered this Bill and chose not to bring forward any comments for the attention of the House. The Government have powers under Section 12 of the PSPA 2013 to set out in Her Majesty’s Treasury’s directions what costs must be taken into account as part of the cost-control valuations. More broadly, I acknowledge the points my noble friend made; I have no doubt that Hansard will be read and I will say simply that his points are noted.
I will now say a few words about the amendment itself. The amendment seeks to amend the Treasury’s powers, set out in Section 12 of the Public Service Pensions Act 2013, to make directions which set the employer cost cap. Section 12 grants the Treasury a wide power to specify in directions which costs should be taken into account as part of the cost-control mechanism.
The amendment put forward by the noble Lord seeks to amend subsection (4) by omitting paragraph (c). I understand that the noble Lord’s intention is to remove the Treasury’s power to specify that the costs of remedy, or any other costs associated with the legacy schemes, should be accounted for in the mechanism.
This amendment may not have what I understand to be the noble Lord’s intended effect of preventing the increased value associated with the McCloud remedy from being included in the mechanism at the 2016 valuations. Subsection (4) sets out the type of costs that Treasury directions may specify for inclusion in the cost-control mechanism, but it is not intended to be an exhaustive list; rather, it provides some illustrative examples of how the wide power in subsection (3) may be exercised. I also note that the 2021 amending directions came into effect on 8 October 2021, as I mentioned earlier, under the existing powers. The noble Lord’s amendment as drafted would have no effect on the 2021 amending directions.
I want to attempt to answer some questions that were raised by the noble Lord, Lord Davies, supported, I think, by the noble Baroness, Lady Janke. There was some debate about why members are being made to pay for, as they put it, mistakes made by the Government. When the cost-control mechanism was established, it was agreed that it would consider only costs that affect the value of a scheme to members. Addressing the discrimination identified in the McCloud and Sargeant judgments by giving members a choice of scheme benefits for the remedy period involves increasing the value of schemes to members. The costs associated with this should therefore be taken into account as part of the cost-control element of the 2016 valuations process. However, any ceiling breaches that occur will be waived, no member will see a reduction in benefits as a result of the 2016 valuations, and any floor breaches that occur will be honoured.
The noble Lord, Lord Davies, asked when we will introduce amendments to reform the cost-control mechanism. I hope I can provide some reassurance by saying that the Government published our response to the consultation on the CCM on 4 October, we are currently working through our options and we will legislate for changes to the mechanism when parliamentary time allows. While a precise date has not been set—I am sorry I cannot give that date—the aim is to implement any changes in time for the 2020 valuations. As should now be clear, the Government have no intention of tabling an amendment in the House of Lords to implement these reforms. Instead, the package of amendments being introduced in this House are technical amendments that ensure the consistent application and legal operability of measures in the Bill.
I hope that, with these explanations, I have provided the noble Lord, Lord Davies, in particular, with some helpful reassurances on the policy rationale and the powers used, and I ask him to withdraw his amendment.
Lord Davies of Brixton (Lab)
My Lords, at the appropriate time I will indicate that I will withdraw the amendment. I am prepared to accept the advice that it does not actually achieve what I would like to achieve, and that the retrospective factor needs to be taken into account. But I would just like to highlight an issue mentioned by my noble friend Lord Ponsonby.
What the decision to make this a member cost means is that it will impact on those members who gain no benefit from the remedy. The remedy is not arbitrary, but there are broad patterns in who benefits from the remedy, and large numbers of members do not benefit from the remedy but will be affected by the inclusion of this as a member cost in the cost-control mechanism. The Government have suggested that they chose the four-year period within the cost-control mechanism for undertaking the calculation because they did not want to impact on future members of the scheme who gain no benefit from the remedy, but exactly the same problem applies to many current members of the scheme who will be active members during the relevant four-year period. To me, that sounds like an argument that the remedy should not be treated as a member cost, because of its inequitable impact.
I am very grateful to the noble Lord, Lord Hodgson, for his remarks. This is an issue that I have perhaps said more about than I originally intended, but I very much hope it will be taken seriously. What comes to me from it is that it is not easy to say what is or is not suitable to be dealt with through particular types of legislation. The issue is the impact it has, not its precise formulation—and making it a member cost has a substantial impact and so should get the appropriate level of consideration.
I note what the Minister said about the amendments to the cost-control mechanism and that he did not rule out the possibility that it would be added to this Bill during its Commons stages. I am a bit concerned about the idea of debating such significant changes in the context of the ping-pong process, so maybe he could give some sort of reassurance on that. But subject to those points, I beg leave to withdraw my amendment.
“(1A) After subsection (1) insert—“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.””Member’s explanatory statement
This amendment imposes a time limit for scheme regulations to comply with section 12(1) of the Public Service Pension Schemes Act 2013 (which requires scheme regulations to set the employer cost cap for the scheme).
Member’s explanatory statement
This amendment is consequential on the new subsection inserted into this Clause after subsection (5).
“(4A) After subsection (1) insert—“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.””Member’s explanatory statement
This amendment imposes a time limit for scheme regulations to comply with section 12(1) of the Public Service Pension Schemes Act (Northern Ireland) 2014 (which requires scheme regulations to set the employer cost cap for the scheme).
“(vi) section 57 (interest and process).”Member’s explanatory statement
This amendment ensures that regulations under Clause 86 are capable of including provision about interest.
“(3) Subsection (4) applies in relation to any reference in section 356 of the Armed Forces Act 2006 (avoidance of assignment of, or charge on, pay and pensions etc) to an assignment (or, in Scotland, assignation) of, or an agreement to assign, any relevant pay or pension (within the meaning of that section).(4) The reference does not include anything done under or by virtue of this Part of this Act.”Member’s explanatory statement
This amendment ensures that the restrictions in section 356 of the Armed Forces Act 2006 do not apply to the operation of Part 1 of the Bill.
“(1A) Regulations under this section may make retrospective provision.”Member’s explanatory statement
This amendment ensures that the power to make consequential provision in this clause can be used to make provision that operates in relation to times before it is made.
Baroness Janke
“Guidance
(1) Within six months of the day on which this Act is passed the Government must lay before Parliament a copy of draft guidance to members of pension schemes affected by this Part.(2) The purpose of the guidance under subsection (1) is to ensure members are able to make informed choices about their pensions.(3) The guidance may also outline plans by the Government to— (a) notify members if they are entitled to apply for compensation under the provisions of this Part, and provide them with the information necessary to do so, and(b) provide a free helpline or online service which members can use to receive further guidance about their pension.(4) Within six months of the day on which the guidance is published the Government must lay before Parliament a report on its effectiveness in achieving the purpose in subsection (2).”Member’s explanatory statement
This amendment would require the Government to publish guidance to members of pension schemes affected by this Part and allows for provision of a helpline or online service to offer further assistance. The amendment also ensures that the Government informs individuals if they are due compensation.
Baroness Janke (LD)
My Lords, as we have heard today and previously, the implementation of this Bill is likely to be extremely challenging, including, I would say, for scheme members. Millions of public sector workers will be affected by this scheme, and the process will involve unpicking, administering and communicating with members. I believe that members will need a lot of help to understand what is happening and to make good decisions. It seems to me essential that we should include a requirement on the Government to plan and resource support systems to enable members to make the best choices, and to provide the same to trustees and pension schemes.
Time is short, so I will not go into great detail, but I would like to hear how the Government plan to support and advise the millions of scheme members who will be faced with life-changing choices as a result of the changes that have come forward through this Bill.
Lord Hope of Craighead (CB)
My Lords, I support this amendment. I raised the issue in my speech at Second Reading because I look back with gratitude to the guidance I received shortly before I retired as to the choices I had to make under the judicial pension schemes. I think my position was relatively simple compared with the position we have now, because there were two clearly expressed schemes, the guidance I was given was intelligible and I was happy to follow it. Of course, I was aware—as I am sure everybody would be under this new arrangement—that the choice I made was going to be irrevocable, and I had to be very careful to make the correct choice.
I cannot claim to have studied the impact of this Bill—and, indeed, all the amendments that have just come to the House today—but my impression is that the situation is a good deal more complicated than the one I had to deal with when I was on the point of retirement. There is a great deal of force in this amendment, and I am delighted that it has been brought back on Report so that we can have a full response from the Minister.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I pay tribute to the noble Baroness, Lady Janke, for tabling and introducing this amendment, to which I have added my name. I also thank the noble and learned Lord, Lord Hope, for giving it his support.
This is the issue which I think is really at the centre of deliberations on this Bill and planning for the introduction of the remedy: how information and advice are going to be provided to members. In Committee, the Minister agreed with the importance of this issue. He said:
“The Government recognise the importance of providing members with clear, accessible and accurate information.”—[Official Report, 11/10/21; col. 357GC.]
The Bill provides for remedial statements to be provided to all members, which in itself is welcome. Before the Bill reaches the House of Commons, I ask the Minister to consider carefully what practical, accessible and time-sensitive help there will be for a member who is struggling to understand the statement and the complex background which precedes it. As I asked in Committee, if a person has no idea what their statement means, how their pension has been affected and when they are likely to be required to make a decision, who do they call? Where do they go for practical advice?
The amendment also raises the question of compensation. The Bill provides for applications to be made for compensation, but what information will be circulated to ensure that impacted members are aware that they are eligible to apply?
These are the questions we have to get right to ensure that members can confidently navigate the remedy, which, not to remind the Minister of this too often, was due to a government error. I hope that the Minister can give a commitment to take this away and to look at what more could be done in the Bill to ensure that members are given first-class accessible support in navigating this complex issue.
Viscount Younger of Leckie (Con)
My Lords, I am very pleased to be able to debate this important matter. As the noble and learned Lord, Lord Hope, and the noble Lord, Lord Ponsonby, said, these matters must be covered and the Government must be sure that enough information is given to pensioners to make the necessary decisions. I hope my remarks will give the reassurances on this.
As I set out in Grand Committee, providing sufficient guidance for members to make informed decisions regarding their pensions is, of course, of utmost importance. Indeed, this Bill implements a deferred choice for members so that they know what their pension options are at the time they make their decision. I acknowledge the point that the noble and learned Lord, Lord Hope, made about the complexity of this. I hope he will agree that we have taken this into account.
There are a number of problems with the approach proposed in the amendment, which would require the Government to publish guidance within six months of the Bill being passed. There are a significant number of schemes within the Bill’s scope, and scheme regulations will need to be developed, consulted on and implemented in each scheme. The Bill provides that the remedy must be implemented by October 2023, but that is just the beginning of the process. Decisions will be taken in relation to pensioner and deceased members from that time, but active and deferred members will be making their deferred choice over many years into the future. It would not be possible to produce guidance within six months in relation to regulations that may not have been made, nor useful to report on the effectiveness of such guidance before the remedy is implemented. Leaving aside the detail of the amendment, allow me to explain why the Government do not consider the amendment necessary.
On the question raised by the noble Lord, Lord Ponsonby, on the support that will be given to members, I assure him that members will be provided with information about their choice and will be able to understand the options available to them. In most cases it will be straightforward for a member to determine which benefits they wish to receive, but I also reassure noble Lords that schemes are developing tools to support members in planning for their retirement. Members will have access to up-to-date information about their benefits and be able to understand what each option will be worth at their planned retirement age.
Turning to the detail, as I set out in Grand Committee, the Bill already provides that scheme regulations must provide for each member to be provided with remediable service statements containing personalised information about the benefits available to them. That information will include details of the benefits currently available to them under the legacy scheme, and the benefits available to them if they elect to receive new scheme benefits or to opt for a period of opted-out service to be reinstated.
For active members, statements will be provided on an annual basis, enabling members to see how the two sets of benefits compare throughout their career. For deferred members, a one-off statement will be provided initially, with up to one further statement per year on request. For pensioner members, and in respect of deceased members, a one-off statement will be provided for such members or their relations to make an immediate choice.
However, remediable service statements are only part of the information and support that the schemes provide to members. The Public Service Pensions Act 2013 will continue to require schemes to provide members with information about their pension benefits, not just those relating to remediable service. In due course, members will also see information about their pensions through the pensions dashboard, which the House will be familiar with. Schemes already provide members with a wealth of guidance, support and information, and existing legislation already requires them to inform members about changes to pension schemes.
The noble Baroness makes an important point about members planning for retirement, and legacy and reformed schemes often have different retirement ages attached to them. The schemes have implemented significant changes before and are experience and adept at providing their members with support and guidance. The fact is that, across their careers, members will often have a range of different pension entitlements, with different rules and benefits payable at different ages. Therefore, these complexities are not unique to the remedy under the Bill, and the schemes already provide members with tools and support to help them to understand their options and plan for their retirement.
The Government Actuary’s Department is developing tools that will allow members to see exactly how their entitlements change, depending on when they access their benefits. Again, this is not specific to the remedy, but such tools will help members to understand how decisions about when to retire interact with their scheme benefits.
The amendment introduced would also require members to be notified if they are entitled to compensation, but it is already the Government’s intention that, in most cases, compensation will be automatic—for example, in relation to overpaid tax. In all cases, schemes will set out the process for claiming compensation in scheme regulations and inform members of this.
On tax guidance, schemes are already required to provide members, where appropriate, with the relevant information to complete their tax return, and this information will be updated and provided to the member, where their tax position changes. However, where there is an interaction with the tax system, the Government recognise that there will need to be further guidance to complement existing HMRC guidance and scheme processes that already provide the required information to complete a self-assessment return.
That was a rather long-winded response, but I hope that I have reassured the House once again that the Bill, existing legislation, the schemes’ existing processes and the Government’s intentions for implementing the remedy already combine to provide for all the information required for members to make the necessary informed decisions. With that, I ask the noble Baroness to withdraw her amendment.
Baroness Janke (LD)
My Lords, I thank all noble Lords who have contributed to the discussion on this amendment, particularly the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Hope. I also thank the Minister for his clarification of the situation, as defined in the Bill.
Of course the remediable service statements will help, but the changes are taking place over such a short time and are on such a scale that it seems to me that there needs to be some form of helpline. I do not know whether the pensions dashboard could accommodate one; this might be something that the Government could look into. I ask that the implementation of these measures be closely monitored and that, should the workload and the volume of change give members a challenge in the choices that they have to make, support may perhaps be provided at a later stage. Having said that, I beg leave to withdraw the amendment.
““continuous period of service”, in relation to an employment or office, means a period of service in that employment or office that does not include a gap in service;” Member’s explanatory statement
This amendment ensures that “continuous period of service”, which is an expression which, elsewhere in pensions legislation, is defined to include non-continuous periods, is not interpreted in such a way in Part 1 of the Bill.
(b) amounts that a person is required under or by virtue of this Part to pay to the scheme by way of pension contributions;”Member’s explanatory statement
This amendment ensures that the definition of pension contributions is wide enough to cover contributions that are required to be paid under or by virtue of Part 1.
““voluntary contributions” means amounts that are paid to a pension scheme by a member of the scheme on a voluntary basis, in accordance with the scheme, for the purpose of securing additional benefits, or securing the earlier payment of benefits, under the scheme;”Member’s explanatory statement
This amendment generalises the definition of “voluntary contributions” previously contained in clauses 18 and 55 so that it applies throughout Part 1.
Member’s explanatory statement
This would set the judicial retirement age to 72, rather than 75 as currently provided in this bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak on the group of amendments consequential on Amendment 126. We have been talking about complex matters to do with public sector pensions, but this is a simple amendment that I will seek to explain to the House. I open by thanking the noble and learned Lord, Lord Etherton, and the noble and learned Baroness, Lady Hallett, for supporting this amendment. I look forward to the contribution later from the noble and learned Lord, Lord Etherton.
Lord Etherton (CB)
My Lords, I have joined in this amendment and I support it and the other amendments in the group, as I have previously with similar amendments by the noble Lord, Lord Ponsonby, because of the potentially severe adverse impact on diversity in our most senior courts, especially the Court of Appeal and the Supreme Court.
While all judges are critical to the administration of justice, the most senior courts are the courts that send the clearest message to our own nation and to other countries about whether we value diversity in those who administer the law. One must remember that the members of the most senior courts also provide the role models that are so important in encouraging and inspiring others. We do not have a diverse senior judiciary. Although some progress has been made, particularly in the last 10 years, with the recruitment of women, there is an unacceptable and embarrassing lack of people of colour who are senior judges.
There are no black and minority ethnic justices in the Supreme Court, and never have been. Just two of the 12 Supreme Court justices are women, one of whom is about to retire. Out of a maximum of 39 judges of the Court of Appeal, there is one judge from a minority ethnic background and only 10 women. Out of a maximum of 108 judges of the High Court, only five are from a minority ethnic background.
There can be no doubt that an increase in the age of retirement from 70 to 75 in one go will have a severely adverse effect on inclusion and diversity in our most senior courts. It will diminish, almost to a vanishing point, opportunities for appointment and advancement for a number of years. That is why, as the noble Lord, Lord Ponsonby, has pointed out, all the most senior judges were in favour of an increase in the judicial MRA to 72 rather than 75.
My noble and learned friend Lady Hallett, who spoke in Committee but is unable to be here today, has added her name to the amendment. She chaired the diversity committee of the Judges’ Council until 2019 and was a member of the judicial diversity forum. She said:
“It is impossible to improve the diversity of the Bench significantly … unless there is a constant flow of new recruits”.—[Official Report, 11/10/21; col. GC 374.]
That is equally true of advancement within the higher courts, from the High Court to the Court of Appeal and ultimately to the Supreme Court. As she said, raising the MRA of the judges is bound to restrict the number of vacant posts. The point, one would have thought, is self-evident, and it is borne out by the facts.
As I have said, one of the two women justices of the Supreme Court will shortly retire. If the Bill is enacted with an MRA of 75, it will be a number of years before any further vacancy will arise. There is no evidence of a pattern of early retirement of justices of the Supreme Court. Of the nine justices who have retired in the last five years, eight continued until the MRA. As I have said before during the passage of the Bill, so far as concerns the Court of Appeal, the average age of judges is just under 64. This means that, potentially, if the MRA is raised to 75, there will be very few vacancies for a further 11 years. Of the 13 judges who retired from the Court of Appeal in the past two years or so, over 70% stayed until the current MRA of 70. The best evidence that I have been able to obtain is that 90% of those due to retire in the next three years will go beyond 70 if permitted.
How, then, will it be possible for those minority ethnic judges in the High Court to progress to the Court of Appeal, let alone to the Supreme Court? The short answer is that it will be highly unlikely. The Government have said that raising the MRA to 75 will increase diversity and the attractiveness generally of applying for judicial office, because it will enable potential applicants to work for longer before seeking judicial appointment. In Committee, my noble and learned friend Lady Hallett said that she had spoken to literally hundreds of potential applicants, including women and BAME lawyers, over the years, and had never once heard an argument that the MRA of 70 was a factor in not applying for the Bench. The Government also say that, in their pre-legislative consultation, a majority of women and BAME groups opted for 75. I do not accept for one moment that, if such groups had been aware of the potentially adverse impact of the MRA on their appointment to the higher courts and on promotion within those courts, they would have endorsed 75.
It has been said by one noble Lord who supports the proposed rise in the MRA to 75 that this is a once in a generation opportunity. Again, I do not accept for a moment that, if and when an increase above 72 is thought desirable, the Government would not readily find a suitable legislative vehicle. In choosing to prolong to 75 the judicial careers of those currently in office, to the disadvantage of underrepresented groups, especially those who are black and from ethnic minorities, the Government have preferred exclusivity to inclusivity. This is out of touch with social attitudes within our wider society, and indeed those of other European countries and the United States. The judiciary is not excused from the call of so many for greater fairness, equality of opportunity and advancement for people of colour and other underrepresented groups within our society. The statutory public sector equality duty, which had its origins in legislation that followed the Stephen Lawrence inquiry, is now to be found in Section 149 of the Equality Act 2010.
Subject to certain exceptions, it requires public authorities, in the exercise of their functions, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic—which includes race and sex—and persons who do not share it. The Act states that a person who is not a public authority as defined in the Act, but who nevertheless exercises public functions, must also have due regard to those matters.
Raising the MRA to 75 is inconsistent with such a duty, or at least its objective and underlying ethos. The House should not endanger its reputation by accepting the increase to 75. To do so would lay it open to the criticism that it is out of touch in preferring to prolong the status quo, rather than enhancing equality of opportunity and inclusivity; in preferring age and standing over fairness and greater participation in our judiciary of all groups within our society, whatever their background, ethnicity, sex or gender. I urge the House to endorse the amendment of the noble Lord, Lord Ponsonby.
Lord Woolf (CB)
My Lords, it is a pleasure to follow my noble and learned friend Lord Etherton, in this debate, but it was of great concern to hear what the noble Lord, Lord Ponsonby, said in his remarks. I am hugely impressed by the other names that have been supporting the suggestion that the age should be raised to 72 rather than 75, as the Government have proposed.
I have the advantage that the noble Lord, Lord Ponsonby, perhaps has not—not yet, at any rate—of being considerably older than 75. I address the House on the basis of what I have learned during the period that I have been a judge and a former judge. I am absolutely committed, as, I am sure, are colleagues, to the need to have a judiciary that is as diverse as possible, to persuade the public that they can continue to have the faith in the judiciary that they have had up to now, and if all the evidence is looked at, I am convinced that the fears so eloquently described by my noble and learned friend Lord Etherton and the noble Lord, Lord Ponsonby, are unrealistic. They leave out of account another very important issue which, I suggest, is realistic.
Unfortunately, the evidence is that the change made 27 years ago to reduce the age from 75 to 70 produced a situation that was very dangerous to the judiciary’s standing. The most senior posts—the posts that should be most active and attractive to applicants—were not being taken up. There was a risk that we did not have the quality of applicant for those posts, which I am sure both previous speakers would agree is critical. Above all, the very best people available should be appointed to the most senior judicial posts of this country.
We have, fortunately, international standing as a judiciary because of its quality. I venture to suggest that advancement applies not only to the more junior judiciary but, above all, to the most senior judges in this country, who, when they retire, are offered all sorts of opportunities to serve in a judicial capacity elsewhere, where they recognise the quality of our judiciary.
The most telling evidence on this important and difficult question is the fact that now, for 27 years, we have had the reduction in the retirement age of the judiciary not to 72 but to 70. Attention must be paid to all the views expressed by colleagues with whom I served and whom I hold in regard. Surely the diversity in our judiciary that they and I desire would have been fulfilled in those 27 years. The fact is that the lamentable situation today is that we still do not have sufficient numbers in the two grades of the judiciary which have been referred to in argument.
My conclusion is that there is a real difficulty in getting the very best judges by changing the age to 72. There is a danger which is supported by evidence. There is no evidence to suggest that anyone else would apply if the age up to which they could retire was 72. Unfortunately, the people we wish to apply who currently support our position in respect of diversity do not see it as their chosen career at that stage.
I say to the House that the Government are right. The evidence from their consultation supports what I say, and that is what we should do—not adopt a compromise that serves no particular purpose.
Viscount Hailsham (Con)
I declare an interest: I sit as a legal assessor for regulatory bodies, and I am very nearly 77—and therefore significantly older than the age of 72 proposed by the noble Lord, Lord Ponsonby. There are many other legal assessors of my sort of age sitting on regulatory authorities. I know full well that we are talking about judges, not legal assessors, but the principle is very much the same. If you were to say to legal assessors, “You cannot serve beyond 72”, you would lose an awful lot of quality which is now available to those regulatory authorities. I believe that the same is also true of the courts. I think judges should be able to sit until 75.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I join those who have indicated that they fully support Part 3 of the Bill and would raise the retiring age for judges—or rather return it to where it was 27 or 28 years ago—to 75, which it was for nine years of my own time on the Bench. I should declare that I too am well beyond the age when such as the noble Lord, Lord Ponsonby, might be having a discreet word with me.
I point out that this provision is fully supported by—as I understand it from Second Reading—the noble and learned Lord, Lord Mackay of Clashfern, who originally lowered the age to 70. He recognises that, all these years on, frankly, 75 year-olds now are a good deal younger than the 70 year-olds of those days past.
I suggest that the most important consideration is really that of judicial recruitment, which is still proving extremely difficult. The imperative surely is to get the most able people on to the Bench, whether they be men or women, whether they be gay, trans or straight, and whether they be young or old. The fact is that most cases are decided by a single judge. It is no good having the most wonderful judge trying the case in the next court if your judge is perhaps rather an indifferent one. So it is too with courts of three, five, seven or whatever.
Of course diversity is a highly desirable objective; obviously, public confidence in the justice system overall is enhanced if more people see themselves represented among the judiciary. In a three-judge, five-judge or seven-judge court, the wider the diversity of judges—including, of course, more women—the likelier the court is to bring to bear a wider experience and judgment on the questions. But I suggest that the argument in favour of 72 rather than 75 being supportive of diversity is, frankly, somewhat speculative; certainly, it is not sufficiently clear, I suggest, to justify sacrificing the goal of individual excellence on the altar of supposed greater diversity. Getting the best candidates to apply and appointing them on merit has to be the cardinal rule.
As to that, raising the MRA to 75 is, to my mind, assuredly going to assist in the recruitment of the ablest candidates, and I suggest that is so equally of women candidates as of male ones. First, it becomes more attractive because it is viable to take the job rather later in one’s career than at present. It gives candidates, male and female, longer to pursue whatever their initial career has been—it may have been in academe or in a range of areas on the borders of the law. It certainly gives practitioners a longer working life in which they can earn more than we all recognise they are going to be earning on the Bench.
Secondly, it gives candidates the option—it is not compulsory; they do not have to serve until 75—of being employed, useful and busy, as most of us would wish to be, for longer and later in their lives. Most of us do not actually want to be forced into compulsory retirement at 70—or, for that matter, at 72.
Thirdly, not only does a retirement age of 75 provide a yet better incentive than 72 for encouraging the best applicants to apply but it serves the public good. It retains supposedly skilled and experienced judges for that much longer. Despite what the noble Lord, Lord Ponsonby, suggests, it is surely not to be supposed that judges suffer a significant and noticeable failing in their abilities between the ages of 72 and 75 sufficient to draw the line at 72. It must therefore be in all our interests to keep these judges working, if they wish to, for that much longer.
Finally, I add as a footnote that it will save the taxpayer the need to pay these reluctantly retired judges a judicial pension for those three years for doing nothing.
Lord Hope of Craighead (CB)
My Lords, I too believe that the Government have made the right choice in going to 75 in one go, as my noble and learned friend Lord Etherton put it. We have to bear in mind that what is being suggested is a maximum; I think my noble and learned friend Lord Brown was making that point in passing in what he was saying a moment or two ago.
I am not sure that the examples that my noble and learned friend Lord Etherton gave of people going on until 70 is a very sound guide as to how people will behave if the age is raised to 75, for the very particular reason that a factor that someone has to bear in mind in choosing the age of retirement is whether he has served long enough to earn the full judicial pension. In my day, you had to serve for 15 years; now, you have to serve for 20. For those who have gone on to the Bench in their early 50s, the age of 70 does not give them long enough. When they reach the time when they have achieved that, they may well take the decision to go then, rather than going on for the extra few years, because they have actually earned their full pension. So we are, to a degree, in an area of speculation. We are having to consider human behaviour and how people will behave in view of the two choices of age that we are being given.
We are also contemplating human behaviour in the problem of diversity. I pay tribute to what my noble and learned friend Lord Etherton was saying about the need to increase diversity at all levels on the Bench. I had the responsibility for a while, as Deputy President of the Supreme Court, of being on a commission considering applicants for the position of justice. One of the issues that concerned us at the time was the lack of diversity in the applicants coming before us—a point that I think has been hinted at by my noble and learned friend Lord Brown of Eaton-under-Heywood. Again, we are trying to speculate about human behaviour. There is an immense amount to be said for the diversity element, but I do not think one can be sure that choosing 75 instead of 72 is going to be as damaging as has been suggested.
As for the in-one-go point, I think my noble and learned friend Lord Etherton was referring to me when he mentioned someone who said at Second Reading that the opportunity to legislate on this issue comes quite seldom. I would be concerned, if we were to settle on 72 this time, as to when one would ever get back to the age of 75. As it happens, the Bill has enormous importance behind it because of the need to deal with pensions, which is a pressing issue. It has been possible to bring in the retirement age element and other parts of the Bill because the Bill is already there and the issue fits quite neatly with its broad aim and subject matter. How soon could we be sure that we could ever get back to this issue? For that reason too, the in-one-go point has a lot to commend it.
There is even more to be said for the points made by my noble and learned friends and the point that we are dealing here with an element of speculation, since we are setting a maximum age, not a compulsory one, and it will have the benefits that have been referred to. I believe the Government have made absolutely the right choice here.
Lord Mackay of Clashfern (Con)
My Lords, I am in the rather unusual position of having brought the judicial retirement age down, all those years ago, to 70 from 75. Your Lordships will remember that 75 was a fairly recent innovation because, originally, judges were appointed for life, and if they did not care for resignation, that sometimes meant fairly long periods in office.
I am very given to wishing for diversity on the Bench, and I realise what the authorities responsible for appointments have done over the past few years. I do not think the noble Lord, Lord Ponsonby, or the noble and learned Lord, Lord Etherton, can be sure that if they get 72 instead of 75 there will be an increase in diversity on the Bench. I had a great deal of experience—it is a long time ago—of trying to work with the ethnic minorities to improve their chances of getting to the top. Indeed, the death of one of those appointments—Mr Kadri, the first Muslim Silk who originated from Pakistan—was reported just the other day. During my time in office, I struggled to bring up the standards of ethnic minorities at the Bar because I felt that was the way to build up a chance of diversity. One of the difficulties in doing that was getting the arrangements needed for that purpose. I was of the view, and am still, that the best chance for ethnic minorities is not Chambers that are entirely of an ethnic minority but diverse Chambers with people from different backgrounds. That has happened to a considerable extent in recent times. It has produced some ethnic-minority members on the Bench, although nothing like as many as I would have liked.
I am convinced that the situation is very different now from what it was 27 years ago, as the noble Lord, Lord Ponsonby, said. Just after the Supreme Court was set up, the noble and learned Lord, Lord Irvine of Lairg, and I wrote to the then Lord Chancellor suggesting that the age limit for Supreme Court judges should be raised to 75 from 70 to accommodate for a reasonable length of time some of those who were there and had the potential to be very good examples of service in the Supreme Court. I am not sure that diversity has necessarily increased very much since then. It is perhaps worth my commenting that the President of the Supreme Court and the Deputy President of the Supreme Court are from Scotland. That is a very important move, although it is not in the way of diversity. It shows that those making the appointments are doing their best to secure the best quality they can at this time. However, it is important to do everything we can to raise the quality of those who are thinking of going to the Bench.
I do not know on what basis the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, whose experience and position is a matter of great importance so far as I am concerned, know that if this is left at 72 there will be greater diversity than now. The people making appointments are as keen on diversity as we are, but they find it difficult in the context in which they are working to bring it forward. I do not believe that it is at all likely that 72 will be more fruitful in that respect than 75. There is no doubt in my mind that going to 75 will increase the possibility of people in senior positions at the Bar taking the appointment. That is one of the things that I realised. The reason is simply that, as has been pointed out, the pension is important in these situations. People who are at the top of the profession are rather unwilling to take a judicial appointment unless they have a pension that encourages them to leave the Bar, with what they are making. I support this move to 75 very strongly, although I know it reverses what I did all those years ago.
Lord Thomas of Cwmgiedd (CB)
My Lords, it is an enormous privilege and pleasure to be able to follow the noble and learned Lord, Lord Mackay, because when he was Lord Chancellor he swore me in as a judge of the High Court. At that time, the retirement age had been reduced to 70. Before turning to this particular amendment, because it is of particular relevance, I say how much I welcome and appreciate what the Government have done in bringing forward this Bill and clearing the terrible problem related to judicial pensions. Of all the research that was done during the time that I was the senior judge, it was clear that the biggest impediment to recruitment was what had happened on pensions, so I thank the Government with all my heart for putting this matter right.
I could not possibly begin to say that a retirement age of 75 was in ordinary circumstances the right age. It would be a difficult proposition to make to this House in any event, but I will be of that age next year and I still sit in a judicial capacity. However, that is not the issue. The issue is, starkly, diversity. I do not think that this House can run away from that, for reasons that I will endeavour to explain. The senior leadership judges whom the noble and learned Lord, Lord Etherton, has described all support moving only to 72 because of the imperative of diversity.
When I was Lord Chief Justice, I was under a statutory duty to promote diversity. Working hard with Lady Justice Hallett, as she then was—she is now the noble and learned Baroness, Lady Hallett—we did it not because we were under a statutory duty but because we believed it was imperative for the judiciary to increase its diversity. The figures are telling. In 2005, there were two female members of the Court of Appeal. By 2015, there were eight, but—the noble and learned Lord, Lord Etherton, gave the figures—there are only 10 now. In the Supreme Court, there was one, then there were three, and now there are two, so the battle for diversity has yet to be won, particularly as regards our ethnic communities.
Why do I have this belief in diversity? There are three reasons. First, it is critical to public confidence in the judiciary—without which, the whole of society suffers. Secondly, diversity represents the fundamental principles of justice: equality of opportunity and fairness. Thirdly, unless we fully embrace the principles of diversity, for the whole of our society, we will not recruit and bring into the judiciary the broad background that we need—possibly not to decide the most intellectually important cases but to bring justice that is appreciated to everyone.
Baroness Janke (LD)
My Lords, the debate this afternoon has been passionate and enlightening. Here is a quote from Second Reading:
“I think that everybody in this House would say that it is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society that we live in if they are to be respected and seen as part of our current era. At the moment, they do not.”—[Official Report, 7/9/21; col. 792.]
It is also a great pity that the Government have not conducted impact assessments with benchmarking of different ages, but they have not. In the absence of impact assessments, I look to the arguments that we have heard. The point has been admirably made: unless there are vacancies, there will not be opportunities for diversity.
We have heard arguments as to why we should not do this; for example—an argument we often hear when there is talk of promoting diversity—that somehow quality will suffer. I have heard those arguments for the last 40 years. Whether scientists, engineers or Members of Parliament, we now see women operating in spheres that were occupied only by men in the past, with no diminution in quality at all. In fact, the contrary has been the case.
I very much respect what was said by the noble and learned Lord, Lord Mackay, with his experience and knowledge. He mentioned context, however, and, the more we listen to this debate, the more we realise that it is the context that has to change. The present context does not promote diversity at all; I would venture to suggest that, to create greater diversity, the circumstances need to change. This amendment seems to me to promote the kind of change that we need.
We heard from the noble and learned Lord, Lord Etherton, that the position of women has improved and continues to improve slowly, but—to use his words—that the embarrassing position as far as minority ethnic judges is concerned is something we all ought to be ashamed of. The cause of diversity is one that we in this House, as well as people from all walks of life, welcome. Everybody here wants to see a more diverse judiciary. Whatever our own situation, and whether or not we believe, as some in this Chamber clearly do, that somehow the courts will not attract the very best people to be judges, the cause of diversity is absolutely self-explanatory and vital if the people of the country are to be able to respect those in eminent positions. From what I have heard today and in Committee, I would say that the cause of diversity is best served by this amendment. We on this side will support it.
Viscount Younger of Leckie (Con)
My Lords, I start by thanking all noble Lords for their contributions during this lively debate. I also thank the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, for the consideration they have both given to this issue, not just today but throughout passage of the Bill. I have listened with care to both sides of the argument put forward today. However, I would like to use this opportunity to set out in full why—in a robust response following detailed public consultation—the Government continue to believe that 75 is the right judicial mandatory retirement age.
All four nations of the UK conducted public consultations on this important question and, following careful analysis of responses, the decision taken by each Government was to increase the mandatory retirement age to 75. I appreciate the support of noble Lords today, from my noble friend Lord Hailsham, to the noble and learned Lords, Lord Woolf, Lord Brown and Lord Hope, and my noble and learned friend Lord Mackay.
I remind the House of some of the data emerging from the UK Government’s consultation. The vast majority of respondents—84%—believed that the mandatory retirement age should be increased, with 67% indicating that a retirement age of 75 was better, all things considered. Notably, 74% of respondents believed that such a change would not damage confidence in our world-class judiciary—something raised by one or two noble Lords today.
On a point raised by the noble and learned Lords, Lord Etherton and Lord Thomas, as to why we appeared to be going against the views of the senior judicial responses to the consultation, we recognise the varied opinions on the appropriate retirement age. However, I assure noble Lords that this decision was taken after careful consideration of all responses including those of the senior judiciary. Some 67% of respondents to the consultation on this matter favoured increasing the age to 75, as I have said. We recognise the concerns raised by the senior judiciary over impacts on judicial diversity, which I shall address later in my remarks. However, on balance, we believe that raising the retirement age to 75 sets the right balance.
It is clear that we agree on one point: that the mandatory retirement age should be increased. The question being debated here is to what age. Here is a point raised by the noble and learned Lord, Lord Hope. If the retirement age is to be increased as this Bill intends, it should be a meaningful increase, which will bring a clear and tangible benefit to the resourcing of our courts, not just a minor raise by two years to 72—a decision which I suspect will not put this issue to bed and will mean that we find ourselves discussing it again in the not-too-distant future, as has been said.
This leads me to an important point on life expectancy. Since the current mandatory retirement age was set in 1993, life expectancy is longer, and social attitudes to working in later life have changed significantly. An age of 75 much better reflects this change. That was a point that the noble and learned Lord, Lord Brown, alluded to in his powerful remarks. Indeed, as I have noted previously, many Members of this House over the age of 75 are among its most knowledgeable, productive and vibrant. I look around now—not wishing to bring any individual Peer to the attention of the House—but I hope that my point is well made.
I stress that the mandatory retirement age is a maximum, not a minimum. Judges will by no means be forced to continue working to 75. The key objective here is additional flexibility, both for officeholders themselves as well as for the resourcing of courts and tribunals. Increasing the mandatory retirement age to 75 maximises this flexibility. Indeed, we already have some officeholders sitting up to the age 75 who play a key role in the administration of justice.
I must also note that, based on the evidence available, it is not clear that all, or even most, judges would choose to continue working to 75. With some trepidation, I do not entirely agree with the statistics put forward by the noble and learned Lord, Lord Etherton, on judiciary retirement. The average retirement age of salaried judges is, I understand, about 67. Over the last five years senior judges—that is, judges of the High Court and above—with a mandatory retirement age of 70, have also on average retired at 67. Evidence therefore suggests that the majority of judges do not continue working till their mandatory retirement age. As I have stated, the objective of this measure is additional flexibility to support the resourcing of courts and tribunals.
I understand that the intended effect of this amendment is to raise the mandatory retirement age to 72 rather than to 75, as has been made clear. However, I must make it clear that this presents a number of consequential issues for other related provisions in the Bill. I note that the amendments do not include changes to paragraph 25(2)(b) of Schedule 1, which repealed the powers to provide for extensions up to 75. In the consultation, only 10% of respondents believed that, if the mandatory retirement age were 72, extensions past the mandatory retirement age should not remain. The amendments as drafted would leave us with a lower retirement age but without retaining these provisions for extensions which are currently in place. Additionally, those “sitting in retirement” can currently continue to decide cases up to the age of 75. The effect of the amendment to Clause 107 would require those sitting in retirement to also retire at the age of 72. This would reduce the resourcing flexibility that “sitting in retirement” arrangements provide.
I also highlight that the amendments do not appear to take account of Part 2 of Schedule 1 to the Bill, which allows for the reinstatement of retired magistrates who are younger than the mandatory retirement age, where there is a business need. This would provide necessary additional capacity in the magistrates’ and family courts to meet forecast case volumes and provide timely access to justice as the courts recover from the pandemic. The Government’s modelling indicates a pool of about 4,000 retired magistrates would be eligible to be considered for reinstatement with a retirement age of 75, but only around 1,300 would be eligible to be considered with retirement at 72. In addition, an age of 72 would provide a much shorter timeframe over which those magistrates reinstated could sit, which means that, when the time and investment necessary to reappoint and retrain is taken into account, the number who would be able to make a meaningful contribution would be smaller still. Therefore, the amendments as tabled result in a hard cut-off at age 72, and with less flexibility than now.
Lord Ponsonby of Shulbrede (Lab)
My Lords, let me provide some context to the figures that the noble Viscount has given. He said that there are 12,000 magistrates in England and Wales today, but when I became a magistrate 14 years ago there were 30,000, so there has been a managed decline of the magistracy. I support, of course, the recruitment programme, which is targeting and, as he said, marketing to try to get greater diversity through that process.
The simple point is that you cannot run away from diversity. There is an absolute imperative to increase diversity within the whole of the judiciary. It is not good enough just to wring your hands and say, “It’s all very difficult”. It has been very difficult for decades and the situation has not improved. The maths is very simple; we heard the maths from the noble and learned Lord, Lord Etherton, who also quoted the noble and learned Baroness, Lady Hallett, who is in a particular position to know. There need to be vacancies for people to progress through the system. It is a simple argument, which I do not think a number of noble Lords fully took on board.
When I introduced this debate, I made a simple example of my role as a youth magistrate and how I felt that I was moving further and further away from the youths I was judging. I gave the example that I am older than the grandfathers of nearly all the youths I am judging. Not one noble and learned Lord addressed that point. They addressed points about the difficulties of recruitment and the ins and outs of the pension scheme, but not the central issue that I tried to raise about the judiciary being further away from the people who they are judging. I argue that we need to have some level of connection to reach fair judgments.
My amendment is a modest compromise. It says that 75 is too far and that 72 is a better age to see how it goes. I acknowledge that people are working and living longer—I made those points when I introduced the amendment—but I say to the noble Viscount and to a number of contributors to this important debate that I am not convinced. I wish to test the opinion of the House.
Member’s explanatory statement
This amendment enables the Lord Chancellor to remove a person from the supplemental list on a temporary basis for the purpose of facilitating the disposal of business in the family court as well as in the magistrates’ courts.
Member’s explanatory statement
This amendment enables the Lord Chancellor to extend the period during which a person is removed from the supplemental list if the Lord Chancellor is satisfied that the extension would be expedient as a temporary measure in order to facilitate the disposal of business in the family court as well as in the magistrates’ courts.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
We shall now have a short interval for a change of personnel before we move on to the next business.
Public Service Pensions and Judicial Offices Bill [HL]
Monday 6th December 2021
(3 years, 7 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Amendment Paper: HL Bill 44-R-I Marshalled list for Report - (25 Nov 2021)
Viscount Younger of Leckie (Con)
My Lords, before we progress with Third Reading of this Bill, I will make a short statement about our engagement with the devolved Administrations. Officials have worked closely and collaboratively with the devolved Administrations throughout the passage of this Bill. The Northern Ireland Executive have passed a legislative consent Motion on this Bill. The Welsh Senedd is in the process of considering a Motion, and the Scottish Government are considering bringing a Motion forward. I am grateful for their continued engagement on this issue.
Motion agreed.
Viscount Younger of Leckie (Con)
My Lords, it has been a great pleasure to lead the Bill through this House. Before the Bill moves for consideration in the other place, I want to take a brief moment to reflect on the Bill and its passage through this House.
This is important legislation that consolidates and strengthens the legal framework for pensions across all the main public services: that is, the NHS, the judiciary, the police, firefighters, the Armed Forces, teachers, local government and the Civil Service. This Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement that are among the best available on a fair and equal basis. It is also vital in addressing the resourcing challenges facing the judiciary, recognising the unique constitutional role of judges.
It has been clear from the informed and considered contributions made throughout the Bill’s passage that we are agreed on the principles of fairness and equal treatment for public servants. I convey my gratitude to all noble Lords for their contributions to our well-informed debates, which have helped to ensure that we achieve this aim. The Government listened carefully to your Lordships’ arguments and concerns as the Bill progressed and made a significant number of technical amendments on Report—123 in total—which I think noble Lords will agree have strengthened the Bill.
In particular, we listened to the concerns raised by the noble Lord, Lord Davies of Brixton, during Grand Committee, regarding the importance of ensuring pension scheme members were provided with remedial voluntary contribution arrangements. I thank the noble Lord in supporting the Government to identify and address this important issue.
I would like to extend my thanks to all those who have engaged on the Floor of the House and in the meetings that we have had outside. In particular, I thank the noble Lords, Lord Ponsonby of Shulbrede and Lord Davies of Brixton, and the noble Baroness, Lady Janke, for their close engagement on the complex area that is public service pensions. I hope that the note sent to the noble Baroness, Lady Janke, earlier today provides some reassurance on her important points raised on Report regarding eligibility criteria for voluntary contributions.
In addition, I thank a number of your Lordships who made impassioned contributions to our consideration of the judicial mandatory retirement age, including the noble Lord, Lord Ponsonby, and the noble and learned Lords, Lord Etherton, Lord Woolf, Lord Thomas, Lord Hope and Lord Brown, and my noble and learned friend Lord Mackay.
I also thank the Bill team, ably lead by Fraser Johnston, the Office of the Parliamentary Counsel, officials across Her Majesty’s Treasury, the Ministry of Justice, the Department for Levelling Up, Housing and Communities, all government departments with responsibilities for public service pension schemes, and the devolved Administrations for their extensive support throughout passage of the Bill.
Finally, I thank my noble friend Lady Scott for her help as the Bill went through the House. There is a lot of technical detail in the Bill, with complex legal consequences, and the team’s guidance and expertise has been exemplary. I am sure that noble Lords will join me in expressing thanks for the support that the whole team has provided, including the updates, letters and briefings that noble Lords have received. On that note, I beg to move.
Lord Davies of Brixton (Lab)
My Lords, I thank the Minister for his courtesy and helpfulness during the passage of the Bill. It was very much a learning process for me as the first Bill to which I had given such a close and involved consideration. I learned lessons, one of which is to check which group a particular amendment is in and get it right. I thank the Minister, as well as the officials. We seem to be saying farewell, but I suspect that it is au revoir and that, in one way or another, we will be returning to these issues.
Baroness Janke (LD)
My Lords, I too thank the Minister; I thank him for the letter I received today, which answered the question that he referred to, as well as for his leadership and his open and engaging approach. He has ensured that we have had opportunities to be fully briefed on the Bill. As others have said, it is a very complex Bill, wide-ranging in scope, and has implications for millions of citizens, particularly public sector workers.
I also thank all noble Lords for their contributions. As the noble Lord, Lord Davies, said, I am sure that we have all learned a great deal from the Bill. I certainly know a lot more about public sector pensions than I did when we started out. I express my appreciation to the Bill team, for its expert help and support and, not least, its patience in explaining some of these complexities.
Noble Lords across the House have made valuable contributions; certainly, the judicial offices part of the Bill saw a very high-quality debate, with issues arising that apply not just to judicial offices but across the board, to public services and the holding of high office. Again, I thank colleagues for their co-operation. I believe that we have worked hard and well on this Bill.
Lastly, I put on record my thanks to Sarah Pughe in the Liberal Democrat Whips’ Office, for her work on the Bill, and for the professional support that she has given me throughout its passage.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I echo what the noble Baroness, Lady Janke, has said. I thank the Minister and his team for their comprehensive support to my noble friend Lord Davies of Brixton and myself. It was a very complicated Bill and I know that, like the noble Baroness, Lady Janke, I needed some guidance through it. This is important legislation for public service pensions. It will guarantee pensions for public servants—something which, of course, we all agree with. We are aware that there may well be further amendments in the other place as well as further legislation given that there are ongoing cases currently in court. My noble friend Lord Davies of Brixton is relatively new to the House and, I have to say, he has started extremely well. It is not often, when taking part in your first Bill, that you manage to influence government policy in the way that he has; my noble friend deserves congratulations.
I was present throughout all the debates and, when we debated the mandatory retirement age, I felt there was a sense of relief because it was an easily understood issue. Many noble and noble and learned Lords took part in that debate with a level of passion not forthcoming in the other more technical parts of the debate. Nevertheless, I thank the Minister for his support as the Bill transitioned through the House.
Viscount Younger of Leckie (Con)
I thank all noble Lords who have just spoken for their kind remarks; I am pleased that we have got to this stage.
Public Service Pensions and Judicial Offices Bill [Lords]
Wednesday 5th January 2022
(3 years, 6 months ago)
Commons ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 44-R-I Marshalled list for Report - (25 Nov 2021)
The Chief Secretary to the Treasury (Mr Simon Clarke)
I beg to move, That the Bill be now read a Second time.
Our public servants do so much to support this country, and over the past 22 months their efforts have been more vital than ever before. NHS employees have worked long hours on the frontline of the fight against the covid pandemic, in hospitals and in the community; teachers have helped their classes in the most challenging of circumstances; and our police, firefighters and armed forces have kept people safe and solved new, unforeseen problems throughout these difficult months. Just as public servants have supported the country during the coronavirus crisis, so it is only right that in turn the Government should support them, which is why the Government have introduced this Bill to make sure that public servants of all ages receive guaranteed rights in their retirement that are among the best available, on a fair and equal basis.
In addition, the Bill includes measures to help to address the resourcing challenges that face our judiciary, to ensure that it can meet the demands of both the present day and the future. The Bill also lays the foundations for new public service pension schemes for beneficiaries of the existing Bradford & Bingley and NRAM—formerly Northern Rock—pension schemes. Currently, those pensions reside under UK Asset Resolution, the holding company for those businesses.
Let me turn to the Bill’s details. I shall start with how it creates fairer, more equitable and more sustainable public service pensions. As Members will recall, in 2010 the coalition Government established the Independent Public Service Pensions Commission, chaired by Lord Hutton of Furness. The commission carried out a deep, structural review of public service pensions. Following the review, the Government accepted the commission’s recommendations as the basis of discussions with members and their representatives, and ultimately introduced a number of major changes. Pension benefits would be based no longer on an individual’s final salary but, instead, on career average revalued earnings. Member contribution rates were increased and the normal pension age was linked to the state pension age for all schemes, except those for the police, firefighters and the armed forces. The changes were fairer for low earners because they resulted in a more generous pension for many. In addition, the reforms were estimated to save taxpayers £400 billion over the next 60 years.
Before the implementation of the reforms in 2015, the Government agreed, after trade union negotiations, to allow those closest to retirement to remain in the legacy schemes. Members within 10 years of retirement in most public service pensions were allowed to remain in the final salary scheme instead of being moved to the career average scheme. This was known as transitional protection. However, the courts found in 2018 that this transitional protection discriminated unlawfully against younger public service scheme members. Although the legal challenge related only to the judicial and firefighter schemes, the Government accepted the need to remedy the position across all public service schemes. A thorough programme of work therefore followed, to identify and implement a robust solution.
Following public consultations in 2020 and Government responses last year, the Bill creates the framework to bring the remedy into effect. For the remedy period—that is, from when the reforms were implemented on 1 April 2015 to 31 March 2022—all eligible members will be given a choice between the legacy and reformed scheme benefits. Some members, especially lower earners, may be better off in the reformed schemes, so it is important that individuals get to choose which benefits they want to receive. For most members, that choice will be made at retirement, when it will be clearer which scheme is best for them. That is known as a deferred choice. There are three exceptions to this. The first involves members who have already retired. They will be given a choice once the necessary legislation and operational implementation are in place. The second involves the judicial schemes, where affected members will make their decisions in an options exercise to be held once the necessary legislative and data requirements are in place. This process is in line with the approach favoured by respondents to the judicial consultation. The third involves the local government pension scheme, which requires bespoke measures to reflect the unique features of that scheme. I intend to table amendments ahead of Committee stage to ensure that members of the local government pension scheme are also provided with a robust remedy. In short, these measures will ensure that all members of a public service pension scheme are treated fairly, whatever their age.
Richard Graham (Gloucester) (Con)
The Minister will know that some of us have received correspondence from constituents suggesting, probably on the advice of their unions, that they will lose up to £500 a year when pensioned as a result of these changes. Can he confirm whether this is true? If it is not, what method can we deploy to reassure our constituents accordingly?
Mr Clarke
I thank my hon. Friend for his question; it is a good one. It is important to provide reassurance on this point. The McCloud remedy aims to ensure that where pension members are offered a different benefit to remedy the discrimination they have faced, they will be returned to the same financial position that they would have been in had they always been entitled to the benefits that they end up choosing. That reassurance should be clear. For the majority of individuals affected, there will be no change to the tax position. It is important to get on record that there will be no change for the vast majority, and that the Government will ensure that all the appropriate guidance is provided in good time so that people can make an informed choice and not worry about incurring any losses.
As well as giving our public servants fair treatment for the remedy period, the Bill will ensure that remains the case into the future. From 1 April this year, all the legacy schemes will be closed to future accrual. All eligible members will be placed in the 2015 reformed schemes or, in the case of the judiciary, moved to a new scheme. This guarantees that members within each scheme will be put on an equal footing. It also underlines the Government’s commitment to the 2015 reforms and the principles that underpin them. Those principles are greater fairness between lower and higher earners, fairness for the taxpayer, future sustainability and the affordability of public service pensions as a whole.
The Independent Public Service Pensions Commission also recommended that the new 2015 public service pension schemes should include a cost ceiling to protect the taxpayer from unforeseen cost increases. However, the Government have chosen to go a step further in establishing a symmetrical cost control mechanism. This will not only protect the taxpayer from unforeseen increases in pension scheme costs but protect the value of pension schemes for members when costs fall.
On how the remedy in the Bill will interact with the cost control mechanism, it will give members a choice between two sets of benefits and allow them to choose which will be better for them. The result is an increase in the value of schemes to members, and, as is usual, this is managed through the cost control mechanism. Crucially, however, to ensure that no members’ benefits are cut as a result, the Bill includes a measure to waive any result from the 2016 valuations that would otherwise have led to benefit reductions. That goes to the point made by my hon. Friend the Member for Gloucester (Richard Graham). In addition, the Government have committed to honour any benefit increases that are due.
Hon. Members will be aware that, in the light of concerns that the cost control mechanism was not operating as originally intended, the Government Actuary was asked to conduct an independent review of this particular element. Following that review, and a public consultation last summer, the Government confirmed that three changes would be made to the mechanism. All three changes are recommendations from the Government Actuary.
The first change is to implement a reformed scheme only design. This means that the cost of legacy schemes will no longer be included in the mechanism. The second is to widen the margin of the cost corridor, which triggers a correction, from 2% to 3% of pensionable pay. The third change is to introduce what is called a symmetrical economic check. This economic check will ensure that any breach of the mechanism is implemented only if it would still have occurred had the impact of changes to long-term economic assumptions been considered. These reforms will make the mechanism more stable and ensure that it operates more in line with its objectives of protecting the taxpayer and providing stability and certainty on member benefits and contribution rates.
I therefore wish to notify the House of my intention to table amendments before the Committee stage, to set the framework for implementing a reformed scheme only design and the economic check. The wider 3% corridor will be implemented through secondary legislation in due course. This approach will ensure that the reforms are in place in time for the next scheme valuations. That is important to ensure that the mechanism is operating more in line with its objectives to protect both taxpayers and members the next time it is tested.
As I have explained, the Bill builds on the existing legislative framework for all public service pension schemes. Each scheme is complex, because each one is tailored to fit each workforce’s individual requirements. The Government intend the Bill to reflect those differences, many of which are found in the detail of scheme regulations. Additional detail will therefore come before Parliament in the form of statutory instruments for further scrutiny. To demonstrate the approach to secondary legislation, policy statements have been deposited in the Library of the House for further scrutiny.
Let me now turn to the next element in the Bill, the package of reforms to help to address the resourcing challenges facing the judiciary. Our justice system is world renowned for its excellence, objectivity and impartiality. That is due in no small part to the expertise of our court and tribunal judges, our coroners and our magistrates. However, as the demands on our courts and tribunals have changed, so too has the need to recruit and retain judicial office holders. While we have recruited about 1,000 judicial office holders a year since 2018, we have not been able to attract the full number needed across all courts and tribunals, which has inevitably put pressure on the system. Raising the mandatory retirement age to 75 will, our modelling suggests, retain about 400 judges and 2,000 magistrates per year at a time when we face challenges in resourcing and recruitment.
It is vital that we continue to attract and retain high-calibre judges. The Bill therefore lays the foundation of a new, reformed pension scheme for judges, increases the mandatory retirement age of judicial office holders to 75, and extends the potential for sitting in retirement to the fee-paid as well as the salaried judiciary. It puts judicial allowances on a firmer legal footing, including those for reserved and excepted posts in Scotland and Northern Ireland. I assure the House that the UK Government will engage with the respective devolved Administrations before the introduction of such allowances.
Taken together, these measures will ensure that a judicial career is more attractive, that more of our experienced judicial office holders are retained for longer, and that additional flexibilities are offered. It is vital that we enable our world-class judiciary to meet the demands of today and tomorrow.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I entirely support what the Minister says about judicial pensions reform, but, since he wears another hat in his capacity as Chief Secretary to the Treasury, may I raise a further issue that is sometimes an impediment to recruitment, namely the operation of the lifetime cap on pensions earnings? In particular, many who have earned well at the Bar and who might otherwise seek appointment to the High Court bench still encounter a disincentive because of the operation of the overall lifetime cap. At one point a carve-out was arranged to reflect that. Although this does not feature in the Bill, may I ask the Minister to take it away and perhaps speak to the Chancellor about it? It is the final bit of the jigsaw that could be sensibly introduced to encourage the very best people to seek appointment to the bench.
Mr Clarke
As Chair of the Justice Committee, my hon. Friend brings a huge amount of expertise to bear on this issue. I can make an absolute commitment that we will look at this, and I will always discuss plausible options to ensure that the judicial pension scheme supports recruitment rather than being in any way an impediment to it. That is very important, and it underpins our wider work on the new scheme for the judiciary. It will move from being tax-registered to being tax-unregistered, and a variety of consequential benefits will arise from that.
Richard Graham
If this were to be reviewed, it would be worth noting that a very similar issue applies to doctors, many of whom are inhibited from returning to work—following the appeal from the Health Secretary—by precisely the same lack of flexibility on the pensions and earnings issue.
Mr Clarke
I recognise my hon. Friend’s considerable expertise on this issue. I thank him for making that point, which is well worth our taking away. I will certainly commit myself to returning to him following any further discussions if that would be helpful.
Let me finally deal with the measures to establish new public pension schemes for the beneficiaries of the existing Bradford & Bingley and NRAM pension schemes. These pensions currently reside under UK Asset Resolution, the company that holds the Government’s remaining interests in Bradford & Bingley and Northern Rock. This is an important step in the Government’s careful long-term management of the financial sector assets acquired as a result of the financial crisis. I stress that all members, some of whom have worked for these organisations for around 30 years, will be protected. Their benefits will be at least as good as they are now under the new schemes and these measures will provide a secure, long-term home for members’ pensions.
My officials have worked closely and collaboratively with the devolved Administrations throughout the passage of the Bill. I am pleased to note that the Northern Ireland Executive have passed a legislative consent motion on the Bill and we are in discussions about a supplementary motion for the amendments that I have announced today. The Welsh Senedd is in the process of considering a motion and the Scottish Government are considering bringing a motion forward. I am grateful for their continued engagement on this issue.
Our public servants are the bedrock of our society. It is right that we reward them for what they do in a way that is fair, affordable and sustainable over the long term. The Bill’s measures seek to achieve all this while helping to address the specific recruitment and retention issues facing the judiciary. For those reasons, I commend the Bill to the House.
Mr Pat McFadden (Wolverhampton South East) (Lab)
It is a pleasure to respond to the Chief Secretary’s opening speech. I begin by wishing you, Madam Deputy Speaker, and Members on both sides of the House a very happy new year.
Pensions are a very important part of workers’ overall pay package. It is in the interests of individuals and society as a whole that good pension schemes and good pension benefits are available to workers in both the public and private sectors and that those who pay into pensions schemes should be able to look forward to a good and secure retirement. When that is not the case, there is more pensioner poverty, lower quality of life in old age and a greater reliance on means-tested benefits. In those circumstances, individuals suffer and society is worse off.
The Bill deals with public sector pension schemes. The experience of the past two years has underlined the contribution made by the public sector workers affected by this legislation. Many of them had to be at work physically throughout the pandemic, caring for the sick, delivering key services or keeping our streets and communities safe. They deserve decent pay and decent pensions.
Part 1 of the Bill seeks to correct what the Public Accounts Committee has termed a “£17 billion mistake” made in the reform of this system through changes introduced by the Government in 2015. To state the obvious, £17 billion is a lot of money. Of course, that is the cost over a long period of time, not just one year, but let us think for a moment what that money could do for families facing energy bills which this year could rise by hundreds of pounds a year. Even a fraction of it could make a major difference to those families. Or to put it in another context, the cost of fixing this mistake made by the Government is around three times the annual bill for the £20-a-week universal credit uplift that the Chancellor largely removed in the autumn.
The Government’s main changes to the pension system in 2015 were to move from final salary to career average pensions and to extend the normal pension age in most schemes. But—this is the crucial point regarding the Bill—there was also provision for those within 10 years of retirement to remain in the previous legacy schemes. That provision was challenged in the courts and found to be discriminatory on the grounds of age in what has become known as the McCloud judgment. The Bill seeks to respond to the McCloud judgment and ensure that people are not unfairly impacted on by the changes on account of their age.
The first question for the Minister must be: where will this £17 billion come from and who will pay the bill? Will it come from the taxpayer as a whole or from pension scheme members? We should remember that a very significant proportion of pensioners in this country are members of one of these schemes. It is very important that Ministers give the House clarity on this matter.
The second point is about the design of the remedy for the McCloud judgment set out in the Bill. Consultation took place on this, and the method chosen is known as the deferred choice underpin. It is perhaps not the most user-friendly title, but what it means in simple terms is that, when people retire, they will have a choice as to which pension scheme should apply for the affected years—between 2015 and 2022—to ensure that they maximise their available pension benefits. The second question I have for the Minister winding up is to clarify whether making this choice will incur any extra costs for the pension scheme members concerned. For example, if members opt to remain in their legacy scheme for the seven years affected, because the rate of accrual in that scheme is higher, will they have to pay any backdated pension contributions to do so?
Then there is the question of how people make their decision under this deferred choice mechanism. Anything that involves individual scheme members making a choice that could have a fundamental impact on their income in retirement raises another question, which is about the quality of information that enables a pension scheme member to make such a choice. The recent history of information on pensions has given rise to some real injustices. We have had unscrupulous advisers trying to exploit pension freedoms and get people to transfer out of perfectly good pension schemes in a way that was clearly not in those people’s interests. Indeed, this House has only recently legislated, in the Compensation (London Capital & Finance plc and Fraud Compensation Fund) Act 2021, for an increased levy on the pension industry as a direct result of increased levels of pension fraud and mis-selling. So the third question to the Minister is this: how will the Government respond to what has happened in these examples and how will they ensure that, in this case, pension scheme members are equipped with the best possible information to make the choices envisaged under the deferred choice underpin mechanism set out in the Bill?
Finally on this part of the Bill, there is a question about how the cost control mechanism will work. The Chief Secretary has already said that the Government will bring forward amendments on that, and we will have to examine those closely. In brief, it was originally envisaged that, under this mechanism, if costs breached the ceiling, benefits would be reduced, but the Government have said that, in this case, no member will see benefits reduced. What does that mean for where the funding for them will come from, and is there any time period after which this guarantee may lapse?
I now turn to part 2 of the Bill, which makes changes to the pension arrangements for former employees of Bradford & Bingley and Northern Rock. Their assets have, until recently, been managed by UK Asset Resolution, which is an arm of Government. The Bill provides assurance that the pension liabilities for these former employees will be met and underpinned by the Treasury. We welcome pension security for these pension scheme members, but can I ask the Minister what the estimated cost is of these provisions, and whether these costs are additional to the £17 billion budgeted for the McCloud response or part of the same overall costs?
Turning to the part of the Bill dealing with the judiciary, the Bill makes changes to the judicial pension scheme, allowing for the deregistering of this scheme for tax purposes on the basis that judges are an exceptional case. I want to return to the question posed a few minutes ago by the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who asked about the annual allowance and the lifetime allowance. Could I ask the Minister to clarify what this deregistering means in the context of the annual allowance and the lifetime allowance? If it is the case that those two restrictions, as it were, do not apply to the judicial pension scheme, how will the Government respond to representation from others saying that they too are an exceptional case? We have already heard the example of doctors being raised. I would be very grateful if the Minister addressed those points in his winding up. Forgive the irony, but if I am right about the interpretation, how confident are the Government that, in making this exception, they will not open the door to legal action from other sectors arguing that they too should enjoy similar treatment?
The Bill also raises the retirement age for judges from 70 to 75, reversing a change made back in 1993. We understand the backlog in the judicial system, and we support measures to reduce the delays in bringing cases forward. There is truth in the old saying that justice delayed is justice denied, but when the Bill was being debated in the other place, concerns were raised that longevity of service might turn out to be the enemy of diversity in the system. How do Ministers respond to those concerns and what more will the Government do to enhance diversity in the judicial system, because it is important that as the country changes the institutions governing the country change with it?
The final issue on which I would like the Minister’s response is the pensions trap, which has been raised by representatives of police officers, among others. Police pensions operate differently from other public sector schemes in that they are based on a 30-year service record rather than a specific retirement age. The Police Superintendents Association, the Police Federation, the Fire Brigades Union and others have raised fears that individual scheme members in their pension schemes could lose out because of the way that the affected years between 2015 and 2022 are treated. I accept that this is a complex matter, but the end result is that a number of police officers feel that a new discrimination is being introduced by the way in which the Government are applying the remedy for the McCloud judgment. In November, the Home Office acknowledged that there is an issue and said that further work was needed. Has any further dialogue taken place with police and fire staff representatives in the past two months, and can the Minister give any further information on how the issue might be addressed?
In conclusion, we will not oppose the Bill, because we understand that the Government had to respond to the McCloud judgment, and they have a duty to ensure that pension schemes do not operate in a manner that is found to be discriminatory by the courts, but in future we will take with a pinch of salt lectures from Ministers about fiscal probity, when the Government have had to introduce legislation to correct what the Public Accounts Committee has defined as a “£17 billion mistake”. We also want assurances that proper, clear and understandable information will be made available to pension scheme members who will have to make important choices for their retirement under the mechanism that we are legislating for today.
Given that the major part of the Bill arose from a court challenge to the Government’s pension arrangements, we also ask how confident the Government are that this is the end of the story, and there will not be further legal challenges that will mean that we have to return to the issue in the future. Labour hopes that this response to the McCloud judgment settles the issues and ensures good quality pension schemes for the workers affected. We owe them all a debt of gratitude for the service that they have given and, in particular, for the outstanding service they have given over the past few years as the country has struggled with the pandemic.
Sir Robert Buckland (South Swindon) (Con)
Thank you, Madam Deputy Speaker, for calling me first in the debate. I am delighted to make a contribution to the Second Reading of a Bill that was very much part of the work that I undertook as Lord Chancellor. I was keen to make sure that we made progress with the Bill on several grounds, the first of which was the necessary reform to judicial pensions in light of the McCloud judgment and other legal developments since the previous set of reforms to judicial pensions. The second was the important and generational issue of retirement age for judges. The previous reform to that retirement age had been back in 1995, and it was not of immediate application but took many years to come into effect, bearing in mind its adherence to non-retrospectivity. I took a different view about the way in which we should approach reform this time. I felt very strongly that any change to retirement age should have immediate effect, and that it should benefit those currently in judicial office. I make no apology for that, because with welcome changes and elongations to lifespan, health and wellbeing, I thought that we were losing many talented men and women at the height of their career. I am not going to name names, but there are many people who served in the highest judicial office who left at the age of 70, but who I felt had much more to give. Some of them were able to carry on in retirement, sitting with special dispensation, but I felt that we needed to do something generational. I very much hope that the change that we are bringing about in the judicial retirement age will endure for many years, well into the middle part of this century. We are not saying that people have to sit at 75. We are not forcing people to sit beyond the time they wish to serve, but we are giving them an opportunity to do that.
Can I deal head-on with diversity, because I considered that matter very carefully indeed when I was Lord Chancellor? I have had the privilege of serving on the judicial diversity forum, which is a committee of the Judicial Appointments Commission, ably chaired by Lord Kakkar, and we take the issue of diversity very seriously indeed. In the other place, amendments were tabled to reduce the age of retirement to 72, on the basis that there were concerns about slowing the increase in diversity, but I believe that that worst-case scenario is based on a failure to act. In other words, it is incumbent on the Ministry of Justice, the Judicial Appointments Commission and others interested in and passionate about diversity to do more to attract people of diversity to the judiciary.
In particular, many women have had career breaks to bring up their family in their 30s and 40s. At the moment, they face quite a difficult decision to return to practice, and regard a 70 age limit as inhibiting their ability to take up part-time, then full-time, judicial office. Increasing the age limit to 75 will allow more women who have had career breaks actively to consider what is a career of up to 20 years if they are to enjoy the full benefits of the pension.
We should not forget that in 1995, one of my predecessors, Lord Mackay, not only reduced the pension age but increased the time that people had to serve to take their full judicial pension from 15 to 20 years. That combined decision had quite an effect on the career opportunities presented to lawyers when considering whether the bench was for them. In other words, people really had to make up their mind in their 40s if they were serious about reaching the bench. There are plenty of exceptions—some people who have done very well in their profession could go to the bench later and perhaps take a smaller pension—but many people felt that they could not take full advantage of a judicial career because of that time restriction.
That changes with a retirement age of 75. People can come to the bench in their mid-50s and serve the full 20 years. That is a huge opportunity, not just for women but for people who come to the legal profession slightly later in their career, mainly because the financial burdens are so onerous in their younger years that they do not feel able to join it in the first place. Contrary to suggestions in the other place and elsewhere, the measure could be a spur to the Government and the Judicial Appointments Commission to do even more to attract women, people from an ethnic minority, and people who join the profession late to a judicial career.
Sir Robert Neill
Can I perhaps reinforce my right hon. and learned Friend’s point? He may have noted from the statistics released by the Judicial Appointments Commission that there has been a particular shortfall in appointments to the district bench and the circuit bench in recent rounds. Those are precisely the people for whom the ability to access a full pension is important. As my right hon. and learned Friend said, the high-earning silk who goes into the High Court may be able to deal with a lesser amount of pension, but the people I am talking about, who are the workforce, particularly in the criminal and family courts—the senior juniors, the senior solicitors—will be under the most pressure if they are not able to get the 20 years’ full pension. That will be most difficult for them.
Sir Robert Buckland
My hon. Friend makes a really powerful point. There is no doubt that the district bench is under huge pressure at the moment. We are not getting the recruits and the applications that we need in order to have a full district bench. The work is some of the most difficult and challenging in the judiciary; it is unglamorous work, but it is vital because it is the bulk, for example, of the civil and family work that goes on in our courts day after day. We have increasing numbers of recruitment competitions seeking to attract more talented people to the bench, but often the vacancies cannot be filled, because there are not enough applications. That, frankly, is a problem. That is why not only the extended retirement age but the changes to the pension will really send a signal to practitioners that the Government value the judiciary and understand the vital importance of having the quality, independent and high-morale cadre of people we need. Without them, we really do suffer as a country.
I should have declared an interest at the beginning, in that I am the recipient, potentially, of a judicial pension because of my service as a recorder of the Crown court, which finished, of course, on my appointment as Lord Chancellor. That is another story, which I will not regale the House with today, but I did have to resign from the judiciary on my appointment as Lord Chancellor. That was not always the case prior to the Constitutional Reform Act 2005, and I think hon. Members know my strong views about the baleful effects of that piece of legislation. I am sure that, with leadership in the Ministry of Justice, we can come back to those issues, and that was certainly my intention when I was in office. However, I parenthesise.
Let me come back to the germane issue of the retirement age. I note the concerns that the senior judiciary and immediately retired judges in the other place had about the 75-year mark. However, I would respectfully but firmly disagree with them. Some 67% of respondents to the consultation agreed with my ultimate decision, which was to raise the retirement age to 75. The bulk of circuit judges, sheriffs in Scotland and other judges considered that the position absolutely pointed in the direction of 75. With the greatest respect to senior judges, many in the senior judiciary have already made their plans and their provision clear, and I do not expect that all of them will wish to serve until 75, bearing in mind the expectation prior to the expected change in the law. Therefore, I am not so persuaded that the logjam that some fear will take place, and I see no reason why there should not be a rise in the retirement age to 75, despite the concerns expressed in the other place.
I am particularly pleased that there was unanimity across the three jurisdictions that 75 was indeed the appropriate retirement age. I took a lot of time and trouble to make sure that colleagues in Northern Ireland and Scotland were consulted. I was extremely grateful to the then Lord Chief Justice of Northern Ireland, Sir Declan Morgan, for his careful consideration of the matter and for all the consultations I undertook with him, and indeed to the President of the Court of Session, Lord Carloway, who himself undertook extensive consultations with the Scottish judiciary. I was very grateful to colleagues in the Scottish Government for agreeing with the position that I sought to take with regard to the retirement age, because I thought that a cross-jurisdictional, pan-United Kingdom retirement age was highly desirable, bearing in mind the fact that atop it all sits the United Kingdom Supreme Court, with the members of that court therefore able to enjoy the same retirement age limitations irrespective of jurisdiction. That was a very important consideration that I am extremely grateful to colleagues in the other jurisdictions for agreeing to.
We have reached a position where we have come to an elegant solution: one that allows professionals to make decisions that suit themselves within that outer limit of 75 and acknowledges the reality that we see now, where the Lord Chancellor is constantly asked to allow judges to sit in retirement post 70—up to 72, in any event. It acknowledges the fact that, thanks to modern science and medicine, we have an increasingly agile and able cadre of people in their early 70s who are willing to serve. In the light of other societal changes—in the light of the fact that, thankfully, we are able to do more things at a greater age than perhaps we were a generation or so ago—I warmly commend the increase in the retirement age, in particular to the age of 75, to this House.
When it comes to the magistracy, we have suffered quite a decline in numbers in recent years. It was not so long ago that we had 30,000 volunteer magistrates—let us not forget, these are volunteers—sitting and serving in our courts. That number has declined alarmingly, and therefore it seems to me a matter of very good housekeeping for us to make sure that we can retain as many magistrates as possible while encouraging the excellent recruitment exercises that the Ministry of Justice is undertaking at the moment. The MOJ is to be commended on the vigour and focus of the exercises it is currently conducting, but without that additional help, my worry is that we are going to reach a critical position with regard to the number of justices of the peace that would undermine the viability of the system. That, frankly, would be a real problem, particularly in the family proceedings courts, where the lived experience, good judgment and common sense of magistrates is brought to bear on a variety of very difficult and complex family situations every day of the week.
This Bill was something I wanted to see even more urgently. I am glad that it is getting its Second Reading in early January: if I had had my wish, it would have received Royal Assent by now, but I understand that my ministerial colleagues in Government have to work to timetables, and that they themselves have different and conflicting priorities. However, it is an important signal that we are sending to the judiciary and to other public servants: not only that the Government take the judgments of the courts very seriously but, I hope, to make the point that any perception that this Government are somehow at war with the judiciary—that they somehow see the judiciary as enemies of the people, or think of them as an inconvenient encumbrance—is thoroughly dispelled by measures such as these.
Without a world-class, independent judiciary of quality, this country is no longer a civilised place. Without the important input of robust judicial independence, none of the jurisdictions for which we sit could call themselves world leading. It is vital that in this world of conflicting and competing calls for international investment, we have the brightest and the best from our legal profession serving in judicial office, because that is the most eloquent way in which we can express to the world the fact that Britain and the three jurisdictions are safe and secure places in which to invest, safe places in which to live, and free and fair places in which we can all be equal under the law. I can perhaps be accused of labouring the point, but I think that this sort of measure, detailed and technical though it is, embodies our commitment to that essential quality. That is why I am delighted to endorse the Bill on Second Reading and look forward to seeing it make a swift passage through the House.
Peter Grant (Glenrothes) (SNP)
I begin by wishing a somewhat belated bliadhna mhath ùr—happy new year—to you, Mr Deputy Speaker, and to colleagues. I include in that colleagues across the House who would have had something positive to contribute to tonight’s proceedings, or to the proceedings earlier in the day, but have been prevented from doing so because they are not able to travel to be here and for reasons that I will never understand are not allowed to participate without being physically present in this place.
The reason we have the Bill here today is that the court has ruled that the way that the Government have treated 3 million of our most valuable citizens is unfair, discriminatory and unlawful—a £17 billion mistake, as the right hon. Member for Wolverhampton South East (Mr McFadden) pointed out. We therefore have to approve either this Bill or something like it very soon. We cannot allow that illegality to continue. We will not oppose the Bill on Second Reading, although there are a number of areas where we have concerns, some of them echoing the concerns raised by the right hon. Gentleman. We may want to raise some of these matters in Committee in due course.
Before I go on to indicate some of the detailed concerns, I will set out some general principles. First, I entirely endorse the comments of the right hon. Member for Wolverhampton South East in that somebody who is giving valuable service anywhere in the public sector is absolutely entitled to a proper wage, to proper conditions of employment, and to a decent pension when they come to retire. This used to be quite a regular source of outrage for those on the Conservative Benches, egged on by their pals in the right-wing press—people like the Rothermeres and the Barclays who do not rely on a state pension, or any other kind of pension, all that much. They used to think it was outrageous that people who had worked a lifetime in the public sector were guaranteed a decent pension when they retired. It is not an outrage that somebody who gives 30 or 40 years of loyal service retires on a decent pension; it is an outrage that so many people who give 30 or 40 years of loyal service do not get to retire on a decent pension.
Although the Bill improves things following the mistake that was made, the Government have not even begun to look at possibly the single biggest weakness in a number of big public sector public schemes, including the ones that we are talking about tonight—that is, that they are unfunded. That does not mean that there is no money for them, but it means, effectively, that somebody making a pension contribution today is paying not their own pension but the pensions of previous generations that have already retired. They are just hoping that when they come to retire a future generation of workers will be there putting into the pot to pay their pension, while the Government—the taxpayer—have to pick up any shortfall. It is almost like a legalised Ponzi scheme.
I would love to know what the thinking was when the schemes were set up. Why did anyone think that that was a good way to set up an employee pension scheme? It is intrinsically unstable, especially if the number of people employed and contributing to the scheme changes significantly over time, because a smaller number of people are trying to pay the pensions of a bigger number of retired colleagues—and clearly over the years most areas of the public sector have seen a reduction in employment. That is why we have the difficulty in affordability and sustainability that we are trying to address just now. To be honest, I do not envy whatever Government Minister it is who will eventually have to find a fair way of squaring that circle, but we cannot afford to keep ignoring it for ever.
Secondly, I believe in principle that for someone in a defined-benefits occupational pension scheme, a career-average scheme will be fairer than a final-salary scheme. It does not necessarily mean that it is cheaper. It does not necessarily mean that they have to contribute more. It does not necessarily mean that their pension has to be less. It would be quite possible to set up a scheme where the workers did not have to contribute any more and where most of them got the same pension or better than they already had. When I say that I agree with the principle that the Government have stated previously that a career-average model will tend to be fairer to a lot of workers than the current final-salary scheme, that does not mean that I want it to be used as an excuse to cut pensions, to force workers to contribute more of their wages to the pension scheme, or indeed to increase the pension age. We can move to a career-average scheme without having to do any of those things.
The third general point is critical. When somebody chooses to contribute to an employer’s pension scheme on the basis of promises that have been made by the employer, by the scheme administrator or by the Government, those promises must be honoured. Retrospectively moving the goalposts is not acceptable. It is not acceptable for public sector workers with regard to their employment pension, and it was not acceptable for the WASPI women. I know that that means that it takes much longer for any changes to pension schemes to have their full effect, but there is an important question of trust at stake. In October 2010, the Independent Public Sector Pensions Commission said that protection of accrued benefits
“is a prerequisite for reform both to build trust and confidence and to protect current workers from a sudden change in their pension benefits or pension age.”
I know that the Government have said that they want to comply with that recommendation, but it remains to be seen whether the Bill, as it is now or as it may be amended later, achieves that.
The contribution that people have made to their final salary scheme gives them an entitlement to the benefits that they were promised from that scheme at the time that they made that contribution. The fact that there seems to be widespread acceptance now that those promises might no longer be affordable for the public sector finances is not the fault of the workers and it is not the fault of their employers. For decades, successive Governments have failed to provide a public sector pension scheme that was affordable and sustainable in the longer term.
The final general point is that we need the Bill because the Government got it catastrophically wrong. They passed legislation that embodied unlawful discrimination. Regardless of what remedy is eventually put forward and agreed, it will have a cost. It will have a direct cost in terms of changes to people’s retirement age, changes to pension contributions, and changes to the pension they get when they do retire, and a substantial indirect cost as a result of the mountain of extra administrative work that will be needed. There should not be any argument about where these costs should fall. They should fall on the Government, not on the workers because it is not their fault, not on the employers, because it is not their fault, and not on the scheme administrators, because it is not their fault either. The Government created the problem and the Government should be making sure that they and they alone carry the costs of fixing it not only in the short term but permanently.
Let me turn now to some of the more detailed provisions of the Bill. The Government’s impact assessment says that there is “a small number of people” who currently have a mix of legacy scheme and new scheme benefits and that that mix is more advantageous than it would be for them to have all of the eggs in one or other of those baskets. Clauses 6(7) and 10(5) will force those people to put all their eggs into one basket. They will lose out. The Government have said that they are only losing out on something that they should not have had, because the Government previously passed a bad law. That is a feeble excuse. I would like the Minister’s clarification on this point. Table 4 on page 68 of the Government’s equality impact assessment—this is not the same as an assessment of impacts, although, presumably, the two should be compatible with each other—says that about 245,000 people have what is termed tapered protection. What assessment have the Government made of the number of people who will lose out from clauses 6(7) and 10(5)? If that number is anywhere close to 245,000, is it right that the Government should just dismiss them as a small number of people? Two hundred and forty-five thousand livelihoods do not seem like a small matter to me.
Clause 5 allows regulations to be made that would let members opt back into a scheme if they opted out during what is termed a “remedy” period. That is only fair as it protects workers from losing out if the rules on which they based their decision are retrospectively changed. Later on in the same clause, subsections (5) and (6) appear to allow the regulations to require the member to provide certain information, including the reasons why they opted out or did not opt out at the time. An excellent briefing prepared for us by the House of Commons Library suggests that those subsections could be used in regulations to restrict the right to reinstatement except when the member can demonstrate that they opted out as a result of that unlawful discrimination.
A similar situation is explicitly set out in clause 24. It allows members retrospectively to pay additional voluntary contributions if they can show, on the balance of probabilities, that they would have done that during the remedy period had it not been for the unlawful discrimination. In both those scenarios, how is somebody supposed to prove, even only on the balance of probabilities, the reasons they did something or opted not to do something seven years ago? Who keeps that information for that length of time? Who will they have to convince—the Government or individual scheme administrators? If it is individual scheme administrators, how do we ensure that there is consistency and fairness in the way that different applications to different schemes are applied?
Most importantly, where will the legal risk lie if, as seems inevitable, somebody is aggrieved that they have been prevented from opting back into a scheme or from making backdated additional voluntary contributions and takes legal action? Will the legal risk lie with the Government who caused the problem or with the pension fund administrators who are desperately trying to fix it?
One further query concerns the admittedly hugely complex interplay that has been mentioned among the amount of money that someone contributes to a pension, the amount of money they get as a pension, and their tax liabilities when they are paying into a pension and when they are collecting it after they retire. Again, I do not want to give the impression that I doubt the Government’s sincerity; I appreciate that they are entirely sincere in trying to ensure that tax consequences do not undermine the intention behind the Bill. All too often, however, I have seen the irrational way that the UK tax system works, even before the Bill has been enacted, so I genuinely do not have a good feeling about it. It concerns me that in passing the Bill, we will be relying on clause 11 of the Finance (No. 2) Bill, which is still in Committee and has not received Royal Assent, to sort out the problem that the Bill creates in relation to the potential impact on someone’s pension annual allowance. I do not like the idea that we are deliberately giving Second Reading to a Bill tonight while relying on a Bill that is somewhere else in the parliamentary system to fix the problem that we are creating. It does not seem to be a good way to do business.
After Second Reading and several days of Committee in the Lords, the Government had to come back with 123 amendments on Lords Report, and we have just been told that they are preparing an unknown list of amendments to table on Commons Report. That should make us all wonder how many other serious flaws that nobody has yet spotted are still lurking in the 116 pages of the Bill. The Bill should receive its Second Reading tonight, but I fear that many further amendments may be required before it is close to being fit for its stated purpose.
Robert Jenrick (Newark) (Con)
I welcome the Bill and I am pleased to make a few brief comments. Like my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), I was involved in its preparation and followed the consequences of the McCloud judgment as a Treasury Minister and as Secretary of State for Housing, Communities and Local Government.
I welcome the fact that the Bill will now provide certainty and enable the important reforms that began with Lord Hutton’s report and were enacted in the Public Service Pensions Act 2013, the regulations that subsequently followed and the reforms of 2015. It will help to enable those changes to proceed and will enable all concerned to be given the confidence and certainty that they deserve.
Again like my right hon. and learned Friend, I welcome the changes to the judicial age of retirement. In the early 1990s, when I think there was no retirement age, it was right to bring in a retirement age of 70. Senior members of the judiciary, such as Lord Denning, retired at 83. It was then right to bring in a somewhat lower retirement age but of course, to all our benefit, the world has moved on and we are living longer, so it is right to have a somewhat later retirement age than was legislated for in the 1990s.
The primary reason that I wanted to speak in today’s debate was with respect to an issue that arose out of the 2013 Act, which was ultimately tested by the Supreme Court when I was Secretary of State in 2020. The issue was whether the Government, acting through the Secretary of State at the Ministry of Housing, Communities and Local Government or its successor Department in this case, have the power to issue guidance to those who administer certain public service pension schemes, primarily funded pension schemes, the most prominent of which is the local government pension scheme, to guide those trustees and administrators away from making investment decisions that are contrary to the United Kingdom’s foreign and defence policy.
The reason why this came to court in 2020 was that when it was brought forward, initially by my predecessor, now the noble Lord Pickles, and his successor, my right hon. Friend the Member for Tunbridge Wells (Greg Clark), the guidance issued by the Department was designed to guide local councils, primarily, away from adopting boycott, divestment and sanctions policies against Israel through their pension funds, although of course other examples were occurring at the time and might occur in future.
The Department issued guidance at that stage that was entirely within the spirit of the then law in 2013, but was subsequently found by a split decision in the Supreme Court to overstep the Secretary of State’s legal powers. The guidance was, I think, perfectly valid; it said that “there are certain circumstances where the trustees of the pension schemes should be careful not to make decisions which would conflict with UK national foreign policy and defence policy.”
Two issues arose when this was tested in the Supreme Court, in a case brought by a campaign group. The first was that some members of the Supreme Court felt that the 2013 Act itself did not give the Secretary of State the necessary powers. The Act clearly states that the Secretary of State can bring forward guidance on how the fund should be administered, but there was perfectly legitimate debate within the Supreme Court about whether the guidance went sufficiently far to cover this particular point. Three of the Supreme Court judges deemed that it did not, while two had a dissenting view.
There was a second, not totally unrelated point made: some members of the Supreme Court were of the view that some of the pension funds in question were not within reach of the British Government, that they were essentially not part of the British state, and that by contributing to a pension fund, a civil servant or an officer of a local council is contributing to a pension scheme that is ultimately outwith the reach of a Secretary of State’s issuing such guidance. That, again, was subject to debate and conflicting views within the Supreme Court, and Lady Arden and Lord Sales dissented.
Both judges took the view, which I agree with, that a scheme such as the local government pension scheme is liable to be identified with the British state for a number of reasons, not least the fact that ultimately the money to pay for it is coming from the taxpayer, but also because it is underwritten by the taxpayer and by statute. Those looking in from afar, for example in a foreign country such as Israel, would be likely to deem a decision by the trustees of one of these pension funds to reflect in some respects the British Government and the views of the British state.
The outcome of the Supreme Court decision in 2020 was that the rule and guidance issued by the then Ministry of Housing, Communities and Local Government was disapplied. I would argue that the time has come, in this Bill, to make the modest change that we need in law to ensure that we can rectify that issue and change the situation. A small amendment to the Bill would give the Secretary of State the powers he or she needs to issue the necessary guidance. That was essentially the message that came from the Supreme Court: if the Government wish to do this, they must ensure the law is clearer than it was in 2013.
I am here to suggest to my right hon. Friend the Chief Secretary that a small amendment be made to the Bill to ensure that that can happen. The Government took this matter to the Supreme Court; unfortunately they lost, and of course we respect the Court’s decision, but the matter is able now to be rectified with a small technical amendment. It is one that I think is appropriate. It is the Government’s policy that we do not support BDS. The Government wish to bring forward a Bill on BDS later in this Parliament, and I hope that they do so, but this is the appropriate place to make the amendment because this is, after all, the successor Bill to the 2013 Act in which this issue arose.
It is important to say why we would want to do this. BDS is a divisive matter. It damages and undermines community cohesion and sows distrust, and we do not want to see local councils trying to influence foreign policy decisions, which are properly the purview of the United Kingdom Government. This is not about politicising public sector pensions, as was implied, I think, by one member of the Supreme Court; it is precisely the reverse. It is ensuring that public sector pensions, which are ultimately paid for by us all as taxpayers, are not politicised, and that political judgments do not come into decisions on the types of investments that are made by these funds.
I will conclude my remarks and leave the matter with my right hon. Friend the Chief Secretary, and I hope that, between us and other interested Members in all parts of the House—there are a significant number—we can find a resolution to this issue, which has been hanging around now for several years, between 2013 and that judgment in the Supreme Court a year and a half ago, and put it to bed.
John McDonnell (Hayes and Harlington) (Lab)
I have to give it to the right hon. Member for Newark (Robert Jenrick) for his ability to describe possibly one of the most inflammatory amendments that we shall consider in this House as a modest technical amendment—but there you are. I am sure we will come back to that debate as part of a wider discussion of the issue.
I want to focus briefly on part 1 of the Bill, which addresses the McCloud judgment. I think we have to acknowledge that what we are having to deal with is an absolute mess in the management of public sector pension schemes by the Government, exposed by the McCloud judgment. It was a mess created not by the members of the public schemes themselves, who have been congratulated across the House this evening on the public service commitment that they are demonstrating at the moment, but by Government decisions. As this mess was created by Government decisions, it follows that the cost and the burden of clearing up this Government-created mess should fall not on the pension scheme members themselves, but on the Government.
Because I have received so many representations from constituents on this matter, I want to get some of the narrative clarified on the record. It is worth going back into the mists of time to fully understand the context and the genesis of this dog’s breakfast, as it was described in the other place.
I am grateful to Bryn Davies—Lord Davies of Brixton—a Member of the other place, our foremost pensions expert, formerly the TUC’s actuary and pensions adviser, and subsequently adviser to numerous trade unions and associations, for the explanatory notes that he has provided to a number of us and the issues that he has raised in the other place. Bryn Davies reminded me of the history of the pension reforms that have laid the path to this chaotic state that we are now trying to resolve.
The mechanism for managing the future funding of public sector pensions stems originally from the discussions between the Labour Government and the trade unions in 2006. It was those discussions that resulted in a broad relationship agreement—the Warwick agreement—and also agreed a series of pension reforms. The aim, quite rightly, was to stabilise for the long term the funding of pension schemes to enable decent pension schemes to be provided, and to tackle, to be frank, the fact that some people who had provided a service throughout their career were finding, contrary to what the hon. Member for Glenrothes (Peter Grant) said, and contrary to what was being reported in a number of papers, that they were being provided with a pension on which they were hardly able to survive.
In 2011, following those discussions, the coalition Government commissioned the Hutton report, which led to the Public Service Pensions Act 2013. That Act provided the basis of the existing system, including the cost control mechanism that we are addressing in this Bill. The key element of the cost control mechanism was that the cost to the employer of each of the public service schemes was fixed as a percentage of pay, which meant that if the cost of providing a scheme increased—I remember the debate and the predictions that were made—for instance due to some scheme members living longer than expected, it was agreed that either benefits would be reduced or members’ contributions would be increased. A number of us did not like it, but that was what the House agreed because it was seen by some as a fair process for the future.
If the cost of providing a scheme fell, such as if pensionable pay did not increase at the expected rate, benefits would be increased or members’ contributions would be reduced. That was the equivalence that was agreed, and it was considered fair. I remember the debate, and it was also agreed that things would stay as they were if the change was less than 2% in either direction.
It was always agreed that some types of additional costs would be the responsibility of the Government—employer costs, as defined, as opposed to member costs. In 2012 the Treasury published a report that spelled out the difference. Employer costs were exemplified by changes in actuarial methodology or changes in the discount rate. The logical argument made by the unions is that the additional costs resulting from remedying the Government’s actions in this case, as exposed by the McCloud judgment determining that the Government’s actions were unlawful, are the responsibility of the Government, and therefore fall squarely into the category of employer costs, not member costs.
This is critical because the cost of the schemes, as used for control purposes, has usually fallen, largely because pay rises have not been as high as expected or because life expectancy has not improved as was previously predicted. If we abide by the agreements that were legislated for in this House, pension scheme members should have received either improvements in benefits or reductions in contributions, or a combination of the two, because the cost of the schemes has fallen.
Instead it appears that the Government are minded to treat the remedy costs of the McCloud judgment—the costs of remedying the Government’s illegal actions—as member costs. We have heard from my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) that the cumulative cost could be £17 billion. This kicks in the cost control mechanism, as in some schemes the cost will rise by more than 2%. This would usually have resulted in cuts in benefits or increased contributions, so at least the Government have introduced a waiver to prevent that from happening.
However, this does not assist my constituents who rightly argue that they have been robbed by the Government and forced to pay over the odds in pension contributions but will receive no additional benefits. In fact, they feel they have been hit by a double whammy, having had their pay virtually frozen or cut but, as a result, still losing out on pension contribution savings. The impact for some will be the prospect of hardship in retirement as a result of not receiving the full benefits of their scheme as originally agreed. For many others, the measures will undermine the incentive to contribute to the pension schemes that are available to them. We have already seen more than 270,000 who are open to joining the scheme dropping out of it. This disincentivisation means that pensioners will be living in greater hardship and poverty and will therefore be reliant on state benefits, so there will be no saving to the Government overall. From the discussions I have had with my constituents and a range of trade union representatives and members, I know that there is a sense of betrayal among pension scheme members.
Another issue that my right hon. Friend the Member for Wolverhampton South East raised was the pensions trap, which has been highlighted by the police associations, particularly the Police Superintendents Association, and by the firefighters, in which the value of the contributions and the pension declines with additional years of service. That is a contradiction that needs to be resolved by the Government, and I hope that that will be undertaken as the Bill goes into Committee and comes back to this House.
The discussion around pensions is as sensitive as the issue of pay, if not more so at times. These are always sensitive policy issues, and people naturally have strong feelings about them. It is worrying to me that, as Bryn Davies—Lord Davies in the other place—highlighted, the key decisions on whether the remedy cost is a members’ cost or an employers’ cost, and on whether the cost of the remedy should be spread over four years as suggested by the Government, are neither on the face of the Bill nor being dealt with by delegated legislation. Instead, under section 12 of the Public Service Pensions Act 2013, these issues will be dealt with by “Treasury directions”. That means that financial obligations will be placed on scheme members without effective parliamentary decision making or scrutiny. These are not technical matters; they are matters of high policy and they affect many of our constituents. They are a matter of public concern and they have generated anger among many of our constituents at what they feel is the unjust way they are being treated. Members of this House should insist that these decisions are subject to proper parliamentary scrutiny and proper parliamentary decision making.
Much of what we are debating in part 1 of the Bill will almost inevitably be the subject of further legal challenge by a large number of trade unions and possibly, we hear, even by the British Medical Association. I fear that, rather than remedying the Government’s errors and lack of judgment, the Bill will almost wilfully compound those past errors and possibly exacerbate the strong feelings of injustice felt by many of our constituents. I say to the Minister that considerable thought needs to be given to these issues in Committee and possibly on Report, to ensure that the Government do not lay the burden of the failure of past Government policy making on the innocent shoulders of many of our constituents, who, as has rightly been said today, are providing essential services across a communities at a time when we desperately need them.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow the right hon. Member for Hayes and Harlington (John McDonnell). He brings detailed knowledge of these matters to the debate, and although we do not always agree, it is always interesting to listen to the careful arguments that he deploys on pensions matters. I remember that from my time as the junior Minister responsible for the local government pension scheme.
I note the points raised by my right hon. Friend the Member for Newark (Robert Jenrick) about the potential conflict between a boycott, divestment and sanctions approach involved in taking a political attitude to pension schemes and the fiduciary duty of the trustees of those schemes to their members. That is something that we will return to, but with no disrespect to other Members, I want to concentrate on the elements of the Bill that concern judicial pensions and the retirement age, which obviously engage my interests as the Chair of the Justice Committee.
I will not repeat much of what has been said with great eloquence by my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), who made the case very clearly. I welcome what the Government have done, as it was clearly right to respond to the McCloud judgment, and I am glad about the way in which they have done so. It is also good news that the Bill brings an even-handed approach to fee-paid judicial office holders—recorders and deputy district judges, for example—so that they are on a much more equitable basis with the full-time judiciary. That is a sensible approach.
By and large, the changes are welcome and necessary, but I hope that the Minister will take away the point about the interaction of the annual cap and the lifetime cap, which is particularly important to those who tend to be appointed to the High Court bench. Generally, those people are drawn from high-earning, highly experienced Queen’s Counsel and senior partners in solicitors firms. The reality is that we have to make it worth their while to undertake what is a public service in the latter stages of their career. Having been successful in practice, almost inevitably they take an income cut to go on the bench. There should not then be a tax penalty on top. If we want the very best on the bench, especially in the commercial court and other specialist jurisdictions, which have a reputational and financial value for the United Kingdom because our judicial system is a centre of excellence and venue of choice for high-value litigation, we have to make sure that we always get the very best to sit in those jurisdictions.
I want to deal with the issue of the retirement age, particularly the impact that that has elsewhere in the system. The Justice Committee considered the legitimate point that has been made and referred to about the impact on diversity of increasing the retirement age to 75. It is a fair point to make. There is no doubt that 70 is too low. The world has changed massively since the time when, as has been observed, Lord Denning was sitting into his 80s. Happily, many active 70-year-olds are well able to continue to contribute in many areas, and the judiciary should reflect that, as much as this House and anywhere else. My right hon. and learned Friend the Member for South Swindon rightly, prompted by others and by me, some time ago increased the age at which jurors can sit to 75. The burdens on people serving on a jury, even in a long case, are nothing like those for a full-time judge, but it is significant that we accepted—and the House accepted—that decision makers, in fact, could continue perfectly reasonably until 75. There is no reason, for example, why that should not be the case for the magistracy as well. I can think of many able magistrates whom we have needlessly lost at an artificial cut-off age of 75.
The same applies to the bench. One can think of a number of distinguished former members of the High Court and the Supreme Court who have had to retire at 70, with many years of service still to give, and still do so, often sitting as arbitrators in important areas of commercial litigation and mediation. I am glad that they can do so, as they perform a great service, but many of them would be happy to continue in public service as justices in the High Court and the Court of Appeal. We are therefore right to reflect societal and medical changes that have taken place.
The concern about opening up vacancies was debated at some length in the other place. As I say, it engaged members of the Select Committee, and a majority expressed concerns about it. I speak for myself in this regard, as I think that 75 is the right age in the circumstances. I am persuaded by the majority of respondents. I am conscious that a number of those in the senior judiciary would have gone to the age of 72, but it is currently possible to make a business case on an individual basis for members of the judiciary to sit until they are 72, so I do not think the difference is great.
The impact assessment indicates that the potential diminution in diversity opportunities is minor in reality. As has already been observed, there is a great gain in particular for women practitioners who have taken a career break and have therefore not necessarily had the opportunity to gain sufficient seniority within the professions to qualify for appointment, but who will be able to serve for the full 20 years required to qualify for the full judicial pension.
As my right hon. and learned Friend the Member for South Swindon observed, in essence we had a reduction of the age to 70 and an uplift in the number of years that had to be served from 15 to 20—in other words, if someone was not on the bench by the time they were 50, they would not get their full pension. As I observed in my intervention, those at the very high-earning end of the Bar and the solicitors’ profession may well have made other provision in that regard during their earnings in practice, but it is of particular value for the people who are—I hope they will not regard my use of this phrase as in any way disrespectful—the real workhorses of the system, who sit in the Crown court and the county court, to have the full judicial pension. Those on the circuit bench and the district bench take on the vast volume of judicial work and generally—certainly in crime and family work—will have largely done publicly funded work so will not have been in the position to put by great provision for the future while they were in practice but will none the less have undertaken important, critical work in the latter stages of their career and have a reasonable expectation of being able to serve the full 20 years to get their pension and to bring their expertise to bear.
It is significant that in the latest recruitment round there has been a shortfall of around 49 in respect of recruitment to the district bench. The vacancy rate in the latest round was 106, and 57 appointees were recommended for appointment to the district bench, and in the circuit bench there were 63 vacancies and 53 were recommended. Despite the excellent work done by the Judicial Appointments Commission, there is a shortfall—the Lord Chief Justice indicated recently in evidence to the Justice Committee that it is a continuing shortfall—in those key areas that deal with the vast volume of serious work: crime, family and civil. It is important to give people the opportunity to serve that much longer in terms both of judicial people power, if I can put it that way, and of making the career prospects attractive.
We do need to make the judiciary more diverse and more representative, but the way to do that is not to keep down the retirement age to such a low level that able people are needlessly lost to judicial service. We must redouble our efforts to attract people from diverse backgrounds and particularly from some ethnic minorities. The truth is that it varies, because it is not a homogeneous issue: the Select Committee heard compelling evidence that some minority groups are much more willing than others to consider a career in the law and in the judiciary. Let us do more to reach out right across the board to engage other groups and let us reach out to get more women to return. There has already been improvement on that, particularly in the magistracy and elsewhere, but there is more to be done.
We must of course encourage people to advance up the judicial ladder and to recognise that to advance from, for example, the district bench to the circuit bench and then into the High Court is something that is open and to be encouraged for all. I commend the work of the noble Lord Kakkar and his colleagues on the Judicial Appointments Commission in that regard. They recognise that we can always do more, and we as a House would recognise that, as would the Minister and his colleagues. We should not accept that the commitment to diversity that we all share, and our equal commitment to excellence and to having the very best people available to serve on cases which, after all, at almost every level change people’s lives to a greater or lesser degree, mean there must be an either/or trade. It is perfectly plausible and viable to have both, and that must be our objective. I therefore think that, on balance, we have the right position. I am conscious that I differ from some Members of the other House, who, as lawyers, I greatly respect. Equally, however, other highly experienced lawyers in the other place came to a different view. I am persuaded on this occasion, not for the first time, by the noble Lord Mackay of Clashfern, who reduced the age to begin with. If James Mackay is prepared to do a John Maynard Keynes and say, “The facts have changed; I have changed my opinion”, that is probably good enough for the rest of us and it certainly is for me.
On balance, I think the Government have got this right. I am sure that we will return to it on Report but, overall, this is a good measure. I hope that it is a part of package that we must have to make a judicial career attractive. I say to the Minister—this is strictly outside the scope of the Bill, but I hope you will indulge me, Mr Deputy Speaker—that it is not just the pensions that matter, but the tax treatment, as I mentioned, and, as the Minister is responsible for the courts, the working conditions, including the maintenance of the courts, the support that judges get from court staff, some of the lowest-paid in the public sector, and making sure that there are not leaks in the corridor and that the heating does not break down, as he and I know happens in some Crown courts. It is also about ensuring that there is general public respect, which we can all have for the judiciary at every level. All of us, whether we agree with any individual decision, should treat the judiciary at every level with the utmost respect because they are fundamental to the maintenance of our democracy just as much as this House is.
I hope that the House will pass the Bill swiftly and send it forward to an early Royal Assent.
Christine Jardine (Edinburgh West) (LD)
It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and it was very interesting to hear his views on that aspect of the Bill and the judiciary. It is one of the reasons why— as other Members have mentioned—I do not think that the Liberal Democrats will oppose the Bill, although we may, at a later stage, table a number of amendments, which I will return to later.
As has been mentioned, there have been a considerable number of amendments to the Bill, which is intended, as the Government said, to ensure that we have equal treatment for all members in each of the main public service pension schemes. It would remove unlawful discrimination and bring in the remedy to age discrimination, as identified in the McCloud judgment, enable the Treasury to establish new public service pension schemes, increase the mandatory retirement age for judges, as the hon. Member mentioned, and provide for regulation-making powers. I believe that all of us in this place would support those aims, but the Liberal Democrats have several concerns, some of which the right hon. Member for Wolverhampton South East (Mr McFadden) mentioned. Many of the concerns were raised in the other place in relation to the amount of detail that is left to regulation and direction and what support will be available to members in making important decisions about their future pension planning.
In considering the Bill, we should reflect on lessons that we have learned, or should have learned, from previous, well-intentioned but ultimately problematic pension reforms, when issues of discrimination and unfairness emerged. I am thinking of the unintended consequences, a lack of information and poor communication, the implications of which have characterised the changes to the state pension age for women, particularly those born in the early 1950s. Ministers could do worse than to listen to some of the 6,000 so-called WASPI women in my Edinburgh West constituency talking about the hardship that the mismanagement or miscommunication of complicated pension changes can cause.
Our experts fear that up to 3 million pension holders will be affected by these important changes. Although consultation responses were supportive of the deferred choice method in the Bill, they warned that the complexity of implementing it may have been underestimated, and that was one of the concerns the Liberal Democrats mentioned in the other place. We believe that not enough support is being offered to members of schemes faced with complex decisions that could involve heavy losses. In the other place, we tabled an amendment to require the Secretary of State to issue guidance to help members understand the choice in front of them, and that could include something like a helpline.
We are also concerned about fairness and the disproportionate effect that some of the provisions in the Bill may have on women, and we tabled an amendment in the House of Lords on women and the gender pensions gap. The Government do not seem to have any real policy on how to rectify the problem, and women will potentially be adversely affected by the Bill, given the time they will have taken out of work for childcare and so on.
One last concern, which we may return to, is that raising the mandatory judicial retirement age from 70 to 75 could have a negative impact on the diversity of the judiciary, which at the moment is dominated by older, white men. To return to the statement by the hon. Member for Bromley and Chislehurst, the judiciary—its diversity, its fairness and its reflection of the country—is as important in many ways to our democracy as this place is.
That is all we would want to add at this stage, but we will return to these issues, perhaps on Report, and certainly with some amendments.
Matt Rodda (Reading East) (Lab)
I am grateful for the opportunity to close the debate on behalf of the Opposition. As my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) said, we do not oppose this important Bill—indeed, I welcome the serious debate that has taken place this evening—but we will continue to hold the Government to account as the Bill progresses. I thank Members on both sides of the House for their valuable contributions, and I am grateful to the hon. Members for Gloucester (Richard Graham) and for Bromley and Chislehurst (Sir Robert Neill), the right hon. and learned Member for South Swindon (Sir Robert Buckland), the hon. Member for Glenrothes (Peter Grant), the right hon. Member for Newark (Robert Jenrick), my right hon. Friend the Member for Hayes and Harlington (John McDonnell) and the hon. Member for Edinburgh West (Christine Jardine).
Our public sector workers play a vital role, and I pay tribute to the hard work of our NHS staff, teachers, police, firefighters and many other dedicated public servants, all of whom are affected by this Bill. We owe these public servants an enormous debt of gratitude for their vital work during the pandemic. As we heard, these workers had to be at work physically throughout the pandemic—not at home or working online. They were caring for the sick, delivering key services or keeping our streets and communities safe. It is right that these dedicated workers can expect a decent pension in their retirement. It is not always understood that most of the schemes in question operate on a pay as you go basis, with workers themselves contributing throughout their working lives.
The shadow Chief Secretary, my right hon. Friend the Member for Wolverhampton South East, raised a number of important questions in his speech, and I am afraid to say that, so far, Ministers have failed to fully answer them. I hope the Minister, in his closing remarks, will now reassure these hard-working public servants about a number of matters.
The most important question is, where will the £17 billion it will cost to fix the Government’s mistake in 2015 come from, and who will pay this enormous bill? Will it be the taxpayer, or will it be the pension scheme members?
The next question is about the design of the remedy the Government have put forward. I welcome their decision to accept the mechanism favoured during the consultation, but we need clarity about whether that choice will incur any costs for the pension scheme members concerned. If the Government are going to ask scheme members to take potentially significant decisions, will they commit to providing much more information to pensioners and savers to help them avoid making costly mistakes? Ministers have failed to do so in the past, and even now they seem reluctant to include pension scams in their important Online Safety Bill, despite the spiralling costs of pension fraud and mis-selling.
We also ask the Government to be clear about how the cost control mechanism will work. We were told at first that if costs breached the ceiling, benefits would be reduced, but the Government have said that no member will see benefits reduced in this case. What does that mean? How will the necessary funding be provided, and is there going to be a time after which such a guarantee may lapse? Ministers have left a number of crucial questions unanswered about part 2 of the Bill as well: what are the estimated costs to the Treasury of underpinning the liabilities of former employees of Bradford & Bingley and Northern Rock, and are those costs additional to the £17 billion budgeted for the McCloud response, or are they part of the scheme and the overall response?
Carrying on to the next part of this important Bill, which concerns the judiciary and has been the subject of much of the debate this evening, do the annual allowance and lifetime allowance not apply to judges? I ask the Minister to clarify that very important point: it is unclear, and it must be clarified. If judges are not covered by the same rules, how will the Government justify that decision to other pensioners? Indeed, does that decision leave the Government open to legal challenge in the future? Furthermore, colleagues in the other place voiced concerns that raising the mandatory retirement age for judges could make it more difficult to increase diversity in our legal system. I hope the Government will make available further details of how they plan to ensure this does not happen. We understand the need to clear the backlog of cases, but I urge the Government to do far more to increase diversity in this very important profession.
I will also take this opportunity to underline the concerns raised by the Police Superintendents’ Association and, indeed, the Fire Brigades Union. Scheme members in the police and fire services could be adversely affected by this Bill because of the ways in which the years between 2015 and 2022 are treated. We know that the Home Office said that further work was needed on this issue, and Ministers have discussed it with representatives of the police and fire services. How will the Government now address this important point? I hope the Minister will speak to that in his closing remarks.
Finally, I urge the Government to respond to the points raised by the Public Accounts Committee when it went through the proposals in a great deal of detail. We must fully understand the consequences this Bill could have for both employees and employers, and I am concerned that the Government have not properly considered the knock-on effects on public service recruitment and retention, which are both absolutely critical issues for these vital public services. There is also a risk that more means-tested benefits may be required if there are changes to public service pensions, and that public service pensions may be worse off. I hope that we will hear reassurance from Ministers on those crucial points. I assure the House and the wider public that we in the Labour party will keep raising these important questions, and I hope the Government will respond in a timely and appropriate manner.
I realise that time is pressing, so I will end my remarks with the following: on an issue of such great importance as the future pensions of so many public sector workers, the public deserve to be confident that the Government have adequately prepared for all eventualities and fully understand the consequences of their actions. Public sector workers, as well as Members of the other place, have made their concerns and questions clear, and it is regrettable that they have not been answered in full so far today. I hope that the Minister will now take his opportunity to reassure the House, the wider public, and public servants about these important points.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Let me start by thanking all right hon. and hon. Members for their contributions. Before turning to the specific points raised during the debate, I join other colleagues in recognising that this Bill is ultimately about public sector pensions, and comes at a time when our teachers, nurses, police, judiciary, and the entire public sector workforce are once again being tested by the ongoing challenges of the pandemic. I join others in expressing my profound thanks to all those working so hard on the frontline, particularly—as the Opposition spokesman, the hon. Member for Reading East (Matt Rodda), has quite rightly just said—those who have not been able to work at home. They have been out there, risking their health for our benefit, and we owe them a huge debt of gratitude. That is why this Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement on a fair and equal basis.
However, of course, the Bill also includes provisions to help address the resourcing challenges facing the judiciary. I wanted to start with this crucial point about capacity in our justice system, not least because it gives me an excuse to offer my profound congratulations to my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) on his honour in the new year’s honours list. It is richly deserved, and as the Minister responsible for court recovery, I hope that a particular part of that honour was due to the massive effort that my right hon. and learned Friend put in with the Lord Chief Justice to keep jury trials going in this country against all the odds. That was incredibly difficult when the pandemic started, because let us be clear: 2 metre social distancing and jury trials go together like a fish on a bicycle, to put it bluntly.
If anyone is in any doubt about this very serious point, they should look at the situation in Wales today, because I can confirm to the House that the new 2 metre social distancing rule in Wales could have profound implications. It is our calculation that, of the 17 Crown courtrooms in Wales, five could be out of use if 2 metre social distancing is enforced strictly, and the two we were planning to open could not be opened. In other words, that would lose seven out of 19 courtrooms, or almost 40% of capacity. My right hon. and learned Friend is of course very familiar with the Welsh criminal courts, where he cut his teeth. I have been able to speak to the Counsel General for Wales, who is my opposite number. We had a good discussion this afternoon, and officials will keep talking, because there may be ways to mitigate this, but it really outlines why we have a capacity issue. When the pandemic hit, it slashed the capacity of our courts to hold jury trials, and it was in the Crown court that this was so crucial.
To give the mathematical quantification, in January and February 2020 we averaged about 8,000 disposals per month. I am pleased to say that last year we were averaging about 8,000 disposals per month from January to October, so we have been getting back to pre-covid capacity. However, in April 2020 there were just 3,000 disposals, with 4,000 the following month and 5,000 the month after that. The massive hit to capacity initially was to physical space—courtrooms and so on.
Therefore the initial focus, led by my right hon. and learned Friend, was on Nightingale courts, which are particularly good for bail cases; the use of IT, so that we had remote hearings; and of course the super-courts, which have been so important for multi-handed cases, where, with multiple defendants, social distancing is even harder. All those measures were about capacity in terms of physical space or using the internet in effect to increase our capacity, but the key thing, as we have got near to pre-covid capacity, is that the labour force has become the issue. That is why the Bill is so important for the judiciary and for our constituents, because it is all about the backlog.
We have active recruitment programmes. We are doing everything possible to recruit more magistrates, more judges and more recorders—our fee-paid judiciary—to sit, which is incredibly important, but ultimately this measure is one way for us, relatively quickly, to bring some very experienced labour to bear to help us to bear down on the backlog. That is why I am grateful that all of my colleagues have welcomed the increase in the MRA to 75. Is my right hon. and learned Friend intervening? [Interruption.] I thought he was, but I apologise.
Sir Robert Buckland
No, but I am happy to intervene. I do not want to make this too oleaginous, but the point my hon. Friend makes about capacity is a huge one. We do not have enough recorders or judges, no matter how many the Lord Chancellor signs back in after retirement. That, I am afraid, is because there has been a bit of a crisis in confidence, and therefore a lack of people coming forward to do these important roles. I reiterate what I said in my speech, which is that we need a world-class independent judiciary, and that is why the Bill is so important.
James Cartlidge
Perhaps in the days without masks it would have been easier for me to tell whether my right hon. and learned Friend was actually intervening, but he is absolutely right.
I can answer the question posed about the lifetime allowance by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and by the shadow Chief Secretary, the right hon. Member for Wolverhampton South East (Mr McFadden). To clarify, the legacy judicial pension scheme is unregistered for tax purposes, so the lifetime allowance tax charge does not apply to accruals under that scheme. The new judicial pension scheme, to be introduced from 1 April, will also be unregistered for tax purposes, so no lifetime allowance tax charge will apply to that scheme either. I hope that answers the question, which is a very important one.
Diversity, which was raised by several colleagues, is incredibly important. Just as in education we have been asking teachers to return to schools to help out and at the start of the pandemic the health service had many thousands of nurses and others returning to clinical roles, we are in effect doing the same. When we do that, however, we obviously cannot directly influence the diversity of the people who are returning to a profession or being retained for longer. As the Chair of the Justice Committee said, it is about reaching out to the recruits of tomorrow. We are taking many steps: for example, since 2020 we have been funding a two-year pilot programme of targeted outreach and support activity by the Judicial Appointments Commission, providing advice and guidance to potential candidates from underrepresented backgrounds, including those from BAME backgrounds, women and the disabled, and soliciting candidates for specific senior court and tribunal roles. In terms of magistracy, we will be launching a new online magistrates recruitment programme in the coming weeks to encourage applications from younger, more diverse cohorts. This is an important point.
The former shadow Chancellor, the right hon. Member for Hayes and Harlington (John McDonnell), the shadow Chief Secretary, the right hon. Member for Wolverhampton South East, and the shadow Work and Pensions Minister, the hon. Member for Reading East, asked the important question of where the £17 billion will ultimately be coming from. The cost of the remedy is estimated to increase pension scheme liabilities by £17 billion, so it is the scheme liabilities that increase. However, that liability will be realised over many decades. It also represents a small proportion of the total savings of around £400 billion that will arise from the wider reforms to public service pensions. To be absolutely clear, the liability will fall on the Exchequer. I hope that offers clarification.
The shadow Work and Pensions Minister asked for clarity on the issues around the ceiling breaches and so on. As the Chief Secretary to the Treasury made clear in his opening speech, no member will see a reduction in their benefits as a result of the 2016 valuations. I hope that provides some reassurance to the shadow Minister. UK asset resolution schemes currently pay out benefits of about £530 million per annum; this is a cost the Government already bear. The policy creates a more efficient situation for paying these pensions and ensuring the current schemes will have a stable benefit.
The question asked by the right hon. Member for Hayes and Harlington and the shadow Work and Pensions Minister about the so-called pensions trap and the issue around the police has been raised with the Government by police representatives and we have been considering it. The Home Office is consulting on detailed regulations to implement a prospective McCloud remedy for the police pensions scheme, but the Government must not take action contrary to the intention of this Bill to remove discrimination identified by the courts by inadvertently introducing new unequal treatment and discrimination.
The hon. Member for Edinburgh West (Christine Jardine) and the shadow Chief Secretary both raised an important point about advice and guidance, and they were right. These are potentially complex issues. Perhaps one important point is that for many members this will hopefully be relatively straightforward; they will be presented with two options, one of which will be financially more generous. Hopefully, therefore, it will be relatively straightforward, but of course it is important that we provide guidance. Providing sufficient guidance for members to make informed decisions about their pensions is of the utmost importance and as such the Bill already requires that schemes provide members with remediable service statements containing personalised information about the benefits available to them. This will include details of the benefits available to them under the legacy scheme and the benefits available to them if they elect to receive new scheme benefits or choose for a period of opted-out service to be reinstated. These statements will be provided to active members on an annual basis.
The hon. Lady also raised the important issue of women and the general point about fairness. The Government agree strongly with the need to ensure that the impact of the Bill is fair on members of public service pension schemes with protected characteristics, including women. A full equalities impact assessment of the Bill was conducted and published alongside the Bill’s introduction. In addition, when making the necessary changes to their scheme rules to deliver remedy, pension schemes will carry out any appropriate equalities analysis for their specific schemes in compliance with the public sector equality duty in section 149 of the Equality Act 2010.
I am grateful for the support of the former Secretary of State, my right hon. Friend the Member for Newark (Robert Jenrick), on lifting the retirement age and, we hope, its impact on capacity issues. He put his specific point well in saying that his suggestion is the very opposite of politicisation. The Government have made their position on boycotts clear. We do not hesitate to express our disagreement with foreign nations whenever we feel that it is necessary, but we are firmly opposed to local boycotts that can damage integration and community cohesion, hinder exports, and harm foreign relations and the UK’s economic and international security. Local authorities should not undertake boycotts that could undermine foreign policy, which is a matter for the UK Government alone. The Government therefore remain committed to our manifesto pledge to ban public bodies from imposing their own boycotts, disinvestment or sanction campaigns, and we will legislate as soon as parliamentary time allows.
Robert Jenrick
I am grateful to my hon. Friend for his remarks. He has just said that the Government will legislate as possible; this is the opportunity to legislate. Of course, there might be a BDS Bill at some point later in the Parliament—we do not know; there will always be pressures on the legislative timeframe—but even if there were, this is the appropriate Bill to handle the situation, because the issue arose in the 2013 Act, to which this Bill is essentially the successor. I do not expect my hon. Friend to make a commitment here at the Dispatch Box—it is clearly something that we will all have to consider in the weeks ahead—but this is the moment at which to make the amendment, should the Government wish to do so in this Parliament.
James Cartlidge
I am grateful to my right hon. Friend. As he knows, matters of parliamentary business are above my pay grade—a very humble and new one—but I hear his point, and I think he made it very well. I am sure that he has a great deal of sympathy for our position, and I simply repeat that we will legislate when parliamentary time allows.
Let me finally refer to the points made by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst, and the former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon, about the independence of the judiciary. They are right: this Bill, including the important parts that deal with the judiciary—I make no apologies, as a Justice Minister, for focusing on those in the winding-up speech, not least given all the backlog issues—sends a powerful signal about our support for the judiciary. I believe that the independence of the judiciary is part of the competitiveness of the United Kingdom. The reason people buy our insurance in the City or trade with our banks and our service sector is that they trust this country, and they trust us because they trust the contract and they trust English law, and we should all be very proud of that.
On the basis of the contributions made today, I believe that the House agrees with the principles underpinning the Bill. I am grateful for the support of the shadow Chief Secretary and the Labour party, and indeed for that of the Liberal Democrats and other parties. I think we all agree that we must make certain that those who deliver our valued public services continue to receive guaranteed benefits on retirement on a fair and equal basis, and in a way that ensures that pensions are affordable and sustainable, and that we must also support our world-class judiciary to enable it to meet the demands of the present day and of the future. I extend an invitation to all Members who may wish to discuss these issues further with me and with the Chief Secretary before the Committee stage. I look forward to that further discussion, and I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Public Service Pensions and Judicial Offices Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Public Service Pensions and Judicial Offices Bill [Lords]:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 1 February 2022.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Michael Tomlinson.)
Question agreed to.
Public Service Pensions and Judicial Offices Bill [Lords] (money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Public Service Pensions and Judicial Offices Bill [Lords], it is expedient to authorise:
(1) the payment out of money provided by Parliament of:
(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown or a government department; and
(b) any increase attributable to the Act in the sums payable under or by virtue of any other Act out of money so provided; and
(2) the charging on, and paying out of, the Consolidated Fund of any sum payable under or by virtue of the Act to or in respect of the judiciary.—(Michael Tomlinson.)
Question agreed to.
Public Service Pensions and Judicial Offices Bill [Lords] (Ways and means)
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Public Service Pensions and Judicial Offices Bill [Lords], it is expedient to authorise:
(1) the making of provision under the Act in relation to income tax, capital gains tax, corporation tax, inheritance tax, stamp duty, stamp duty reserve tax or stamp duty land tax in connection with—
(a) pension schemes established under provision made under the Act for persons who are or have been members of occupational pension schemes of bodies that were brought into public ownership under the Banking (Special Provisions) Act 2008, or
(b) the transfer under provision made under the Act of any property, rights or liabilities of any such occupational pension scheme or any such body; and
(2) the payment of sums into the Consolidated Fund.—(Michael Tomlinson.)
Question agreed to.
Public Service Pensions and Judicial Offices Bill [ Lords ] (First sitting)
Thursday 27th January 2022
(3 years, 5 months ago)
Public Bill CommitteesPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 January 2022 - (27 Jan 2022)
The Chair
Before we begin, I have a few preliminary announcements. I remind Members to observe social distancing and to wear masks. Members are asked by the House to have a covid lateral flow test twice a week if coming onto the parliamentary estate. Please switch electronic devices to silent. Tea and coffee are not allowed during sittings.
Today, we will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, before proceeding to line-by-line scrutiny of the Bill. I call the Minister to move the programme motion standing in his name, which was discussed on Tuesday by the programming sub-committee for the Bill.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 11.30 am on Thursday 27 January 2022) meet—
(a) at 2.00 pm on Thursday 27 January 2022;
(b) at 9.25 am and 2.00 pm on Tuesday 1 February 2022.
2. the proceedings shall be taken in the following order: Clauses 1 to 109; Schedule 1; Clause 110; Schedule 2; Clause 111; Schedule 3; Clauses 112 to 116; Schedule 4; Clauses 117 to 120; new Clauses; new Schedules; remaining proceedings on the Bill;
3. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 1 February 2022.—(Mr Clarke.)
The Chair
I call the Minister to move the motion on written evidence.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Clarke.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Committee members by email.
We now begin line-by-line scrutiny of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments do not take place in the order they are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debate. Decisions on each amendment are taken when we come to the clause to which the amendment relates.
The Member who has put their name to the lead amendment is called first, or the Minister if clause stand part leads the group. Other Members are then free to catch my eye to speak on all or any of the amendments, clauses or new clauses within the group. A Member may speak more than once in a single debate. At the end of a debate on a group, I shall call the Member who opened the debate to wind up.
Clause 1
Meaning of “remediable service”
The Chief Secretary to the Treasury (Mr Simon Clarke)
I beg to move amendment 2, in clause 1, page 2, line 3, leave out subsection (4) and insert—
“(4) The second condition is that the service in question is—
(a) pensionable service under a Chapter 1 legacy scheme,
(b) pensionable service under a Chapter 1 new scheme that would have been pensionable service under a Chapter 1 legacy scheme but for the person’s failure to meet a condition relating to the person’s attainment of normal pension age, or another specified age, by a specified date, or
(c) excess teacher service.
The second condition is met if all of the service in question falls within paragraphs (a) to (c) (even if it does not all fall within only one of those paragraphs).”.
This amendment updates the second condition in clause 1 so that it catches “excess teacher service” (a definition of which is inserted into clause 98 by a separate amendment) and clarifies that service meets that condition even if it falls within more than one of paragraphs (a) to (c).
The Chair
With this it will be convenient to discuss the following:
Government amendments 3 and 4.
Clause stand part.
Government amendments 34, 36 and 38.
Mr Clarke
It is a pleasure to serve under your chairmanship, Mr Sharma. I thank colleagues on both sides and those in the other place for the constructive way in which we have proceeded with this Bill so far. I thank my officials, who have done an exemplary job on a complex piece of legislation.
At the heart of the Bill is fairness and equal treatment for the public servants on whom we all rely. To ensure we achieve that objective, the Bill is underpinned by the core principles of greater fairness between taxpayers, fairness for lower and higher earners, and the future sustainability and affordability of public sector pensions. I would like to take a moment to explain why the approach to bring forward a number of amendments at this stage has proved necessary—indeed, crucial—to provide a robust and effective remedy.
As I am sure Committee members will agree, this is a highly complex and technical matter. The Bill covers more than 40 schemes. Each, individually, has its own layers of detail and complexity. We are dealing with a somewhat unprecedented issue. Retrospective changes of this scale have not previously been required for occupational pension schemes. However, it is undoubtedly vital that we get it right. Since the Bill was introduced, the Government have continued to work with the individual schemes, stakeholders and Departments to check and recheck the Bill to ensure that it will deliver our commitments to remove the discrimination and offer a complete and effective remedy.
Clause 1 identifies periods of service that are in scope to be remedied under the Bill by placing a number of conditions that must be met. The first condition is that the service took place during the period that the discrimination arose. The second condition is that the service is pensionable under a public service scheme and would have been pensionable under a chapter 1 legacy scheme had the discrimination not occurred.
The third condition is that the person was, on or before 31 March 2012, a member of a legacy scheme or—in the case of certain schemes for firefighters—eligible to be a member of such a scheme. Members who first joined any public service pension scheme after that date were ineligible for transitional protection regardless of their age, and therefore were not subject to the discrimination identified by the court.
The fourth and final condition is that there is no disqualifying gap between the service to which the third condition relates and the period in question. For reference, a disqualifying break in service is defined as a period of more than five years, which reflects the rules of public service pension schemes but allows members who leave to subsequently rejoin when the gap between leaving and rejoining is five years or less.
Amendment 2 concerns an issue that is specific to the teachers’ pension scheme involving teachers with excess service. If a teacher with a full-time teaching contract has an additional part-time contract or contracts, the additional part-time contract constitutes the excess service. Excess service is pensionable in the new teachers’ pension scheme but not in the legacy scheme. However, where the relevant employer has an existing relationship with the local government pension scheme, the regulations of the LGPS provide that the excess service is pensionable in that scheme instead. The teacher will automatically be entitled to enrol into the LGPS in relation to their excess service, therefore providing a home for those accrued rights.
The amendment updates the second condition in chapter 1 to cover excess teacher service, meaning that excess teacher service is a remediable service and, therefore, subject to the provisions in clause 2(1). It will ensure that a member’s excess service can be rolled back to the appropriate scheme. Amendment 4 is consequential on amendment 2, and amendments 34 and 38 define excess teacher service.
Amendment 3 is designed to ensure that the remedy applies correctly to former local government staff who have compulsorily transferred from their employer as a result of outsourcing and were entitled to pensions protection. If such members subsequently became a member of a chapter 1 scheme, the amendment provides that the time they spent in a private sector pension scheme would not count towards the disqualifying gap in service when assessing their eligibility for remedy, which is consistent with the approach provided in respect of transfers and central Government fair deal arrangements.
Chris Stephens (Glasgow South West) (SNP)
I am speaking as someone who was a local government employee in Glasgow before I came to this place. Is the Minister saying that, as a consequence of this amendment, if an employee working for the local authority finds that their service is outsourced by a decision of the local authority, that employee would not have pension rights as a result of the service that they would have if they transferred to that outsourced company? Could he clarify that?
Mr Clarke
To reassure the hon. Gentleman, the amendment is designed to prevent that from occurring. In other words, the fact that their employment was outsourced during that period would not constitute a gap of longer than five years, which would put that out of the scope of remedy. It is designed precisely to ensure that they do have protection, rather than that they do not.
Finally, amendment 36 defines a local government contracting-out transfer for the purposes of what I was just alluding to.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
It is a pleasure to serve under your chairmanship, Mr Sharma. I will start by talking about our public sector workforce and the service they give to this country. The pandemic has highlighted how much we depend on the NHS and on teachers, police and other frontline professionals who keep us and our loved ones safe. It is only right that the state ensures that our public servants are secure in retirement by providing a decent pension on a fair and equal basis.
Labour therefore welcomes the main provisions in clause 1, in particular the attempt to introduce a remedy for the discrimination of younger members in the new pension schemes established by the coalition Government between 2014 and 2016. I recognise that the remedy the Government have opted to include in the Bill—the deferred choice underpin, or DCU—was the preferred option of the overwhelming majority of respondents to the Government’s consultation, including Unison and GMB—my trade union. However, I want to draw the Minister’s attention to the fact that trade unions continue to have concerns about the lack of clarity on how the remedy, expected to cost around £17 billion, will impact the future value of members’ pension schemes.
On Second Reading on 5 January, the Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge) said
“liability…will fall on the Exchequer.”—[Official Report, 5 January 2022; Vol. 706, c. 112.]
That is an important commitment, but as Lord Davies of Brixton, a Member of the other place and one of the country’s foremost pension experts, has said, it does not address the question of whether the remedy will be included in the cost control mechanism at a later date. If this cost were to be included in a future cost control mechanism valuation, it would result in members receiving lower benefits and having to make higher contributions to their pension schemes. As the Public Accounts Committee has warned, this would, in effect, be unfairly penalising our public sector workforce for the Government’s economic incompetence by passing on some of the cost of the Treasury’s £17 billion mistake to members.
Can I ask the Minister to confirm, once and for all, whether the estimated £17 billion cost of the remedy will be included in future valuations of the pension schemes under the cost-control mechanism? If it is to be included, can he please set out how that will impact on the future value of members’ benefits and contribution rates? I think he will agree with me that our public servants deserve better than to be left in the dark, so I hope he will clarify this in detail.
Today, the Government have failed to address concerns about how pension scheme members will be protected from unscrupulous advisers. I know that Minsters have been reluctant to include pension scams in the draft Online Safety Bill, despite the spiralling costs of pension fraud and mis-selling. I would like the Minister to set out what steps he is taking to protect members from scammers, who may try to exploit the greater choice that this Bill provides by getting people to transfer out of the pension schemes in a way that is not in their best interest.
Peter Grant (Glenrothes) (SNP)
It is a great pleasure to serve under your chairmanship, Mr Sharma. Some of the comments that I will make today will repeat the assurances I asked for on Second Reading. Looking back over the Hansard record, I think I was the only Member who spoke in that debate who did not have their queries addressed in the Minister’s summing up—not that I was keeping track or feeling got at, at all.
I am grateful to the Minister for clarifying the query from my hon. Friend the Member for Glasgow South West; it should concern all of us that such a massive injustice almost slipped through the net. There have been dozens of chances for amendments to be made and for this Bill to be got right. I said on Second Reading that I was concerned that the number of very late amendments that the Government tabled in the Lords was an indication that there were still big gaps. Something as vital as not denying a public service worker their pension rights was missed because, as a result of a dreadful piece of legislation, their job was sold off to the private sector and then brought back in house again. For that potential injustice to have got this far, until the Government spotted it and brought them in, will leave us all at the end of today’s proceedings—and Tuesday’s if we sit then—still wondering what else is left that has not been picked up.
It is quite clear that, with some of the later amendments, the Government did not identify issues for teachers, whose length of service provision and their age sometimes will not fall into line with each other in a way that would be expected. Some of the later amendments suggest that the Government forgot that sometimes the Treasury does not decide things in Northern Ireland, but rather, it is the Northern Ireland Department of Finance that decides. How could such a crucially important piece of legislation have got to that stage without basic facts of the UK constitution having been picked up somewhere within Government?
I hope that when we come to those sections that the Minister will have the good grace to admit that sometimes there have been simple blunders by the Government, that mean we will have to consider these things as amendments rather than them being part of the substantive Bill.
Chris Stephens
Does my hon. Friend agree that we are taking about deferred pay for public sector workers, and therefore we should be treating this Bill with a great deal of care and attention?
Peter Grant
I absolutely agree. I made it clear during my comments on Second Reading that I do not doubt the sincerity of the Minister’s and the Government’s intention to do the right thing. However, I believe it is a fundamental principle that if someone signs up to a pension scheme, they get what they were promised, even if it becomes inconvenient or the Government discover afterwards that it is going to cost more than they expected. That is why it is important we get clarity on who is going to pick up the tab for the £17 billion, for example. It concerns me that a group of workers who were very badly treated by legislation in the past would have lost even more than they thought they had done if the Bill had not been amended at such a late stage.
I hope that these will be the last substantive amendments that we need to see, but I suspect that on Report the Government will have another raft of big amendments for things that nobody spotted until now.
Matt Rodda (Reading East) (Lab)
It is a pleasure to serve under your chairmanship, Mr Sharma. I also declare an interest: there are members of my family who may be affected by the Bill. I am not entirely sure, but I believe that they may be affected.
I also pay tribute to our public sector workers. As my hon. Friend the Member for Hampstead and Kilburn said earlier, and colleagues across the House have mentioned, we owe an enormous debt of gratitude to our public sector workers. We are talking about hard-working police officers, firefighters, teachers, local government workers and many others who have been at the forefront of the country’s efforts during the pandemic—and, indeed, over many years—and offer so much to our community. We need to treat the Bill with the utmost gravity, and I am grateful for the tone of the debate overall.
I would like to point out the importance of intergenerational fairness. I appreciate that the Government and the Minister have quite rightly highlighted the importance of the remedy. The Government lost a court case and are now seeking to remedy that significant mistake by the Treasury. However, the risk in the Bill is that inadvertently the Government may impose another unfairness on a younger group of workers. Later on in the course of today’s proceedings, could the Minister reassure those younger workers once again? It is really important for them to have clarity and reassurance about their pensions—that they will not have to pay far greater sums to receive the pensions that they rightly deserve. As part of that reassurance, it is very important that the Government address the issue of the cost control mechanism and are absolutely clear about how it will work. We hope that they will provide further reassurance and information on that matter during the course of today’s discussions.
Finally, I reassure members of the public that these schemes are by and large pay-as-you-go pension schemes, to which teachers, police officers and others make significant contributions during the course of their service. They are not wholly underwritten by the Government. That is a very important point for people who do not work in public services to remember and be reassured by: as another hon. Member mentioned, we are talking about deferred payments to public servants and ensuring that they receive the pensions that they rightly deserve, to which they have contributed over many years of service to our community.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I want to put on the record my interest in the matter before us: I am a member in scope of one of the pension schemes, I am married to a member in scope of one of the others, and a former scheme board member of another of the schemes.
Mr Clarke
I thank all hon. Members for their contributions. It is important to clarify one of the misapprehensions about what has happened over the course of the passage of this legislation to the issue that we are working to address. The Government did not, as it has been described, make a mistake. We inserted transitional protections into the scheme after the recommendations of Lord Hutton, expressly at the request of the trade union movement. It is important to establish that the request for transitional protections to be inserted was a trade union-led request. That is what triggered the discrimination action against the Government, which we are now working to address. I would defend the Government’s record here quite strongly; this is not something that we have brought about. None the less, we are obviously working in good faith to seek to address it.
Peter Grant
It just will not wash for the Minister to blame the trade unions. If this Government were in the habit of paying a blind bit of attention to anything else the trade unions say, that might be credible. But the trade unions did not make the regulations that were proved to be unlawful; the Government made them. Why can the Minister not accept that the Government took the decision and got it wrong?
Mr Clarke
The Government obviously take responsibility for all of those things, but it is important to establish the full context. We inserted the changes at the request of the trade union movement, and they were found to be discriminatory in a way that could not have realistically been anticipated at the time that the legislation was brought forward. None the less, we are where we are, and I want to address some of the substantive concerns raised in particular about the cost of remedy. We will come back to this later as well in the course of the Committee, because it will arise again in the context of some of the other clauses.
It is really worth clarifying definitively that the Exchequer is responsible for paying out pensions due from unfunded public service pension schemes, to which this relates. This works in practice by current employer and member contribution incomes being used to meet the costs of paying current pensioners. Where contribution income does not match the cost of pensions in payments in any given year, the Treasury has to make the balancing payment. In this way, the Exchequer guarantees the benefit that members worked so hard to earn, as the hon. Member for Glenrothes rightly said, during their time in service.
Remedy increases the pension rights of eligible members over the period in question—2015 to 2022. As the hon. Member for Hampstead and Kilburn said, the estimated cost of this remedy for unfunded schemes is in the region of £17 billion, in terms of long-term liabilities for the Exchequer. The Exchequer will therefore pay out these increased pension benefits due to members over several decades as members retire. There should be no doubt that the ultimately liability sits with the Exchequer, rather than scheme members. It is worth noting that, overall, these reforms are estimated to save the Exchequer some £400 billion in long-term liabilities, which is important for the long-term sustainability of our public service pension schemes in an age of rising life expectancy.
On the question of remedy, which is really important in the cost control mechanism, I should be clear that member benefit levels and contribution rates are set out in individual scheme rules and can be adjusted through the cost control mechanism at scheme valuations. The cost control mechanism—again, I will expand on this later—is designed to both protect the value of schemes to members and to protect the Exchequer from unforeseen costs.
At each scheme valuation, the mechanism assesses the benefits that have accrued and are accruing to members to determine whether future benefit levels of member contribution rates need to be adjusted to manage the cost of the scheme. By increasing the pension rights of eligible members, the remedy we are talking about today increases the value of those schemes to members, which is why it is right that it is reflected in the cost control mechanism for the 2016 valuations.
However, because we are waiving the ceiling breaches while honouring floor breaches of the mechanism, it is vital that we establish now, for the avoidance of any doubt, that no member benefits will be cut and no member contribution rates will increase as a result of the 2016 valuations. Any benefit improvements due will be honoured, but no additional costs will be imposed. I reassure the hon. Lady, on her important question, that the costs of our remedy genuinely sit with the Exchequer, not scheme members.
I entirely agree with the hon. Lady’s important point regarding people not being caught up by pension fraud. Public service pensions schemes do not allow members to transfer to such arrangements, only to equivalent defined-benefit schemes, so there is a degree of protection against the most egregious fraud, but we are always happy to work with individual schemes and the industry to try to promote best practice and make sure that people do not fall victim to any form of mis-selling.
As I set out, this is a highly complex and technical Bill. The amendments in this group, and some we will come on to discuss, are crucial to ensuring that a robust remedy is in place—in this particular instance, for teachers with excess service and those who have a period of service that was subject to a local government contracting-out transfer. On the point that the hon. Member for Glenrothes raised, it is important to note that many of these amendments result from close discussion with individual schemes and stakeholders right up until this moment, not because we had not anticipated many of these questions but because, in truth, how best to resolve them—there are sometimes multiple ways—has been a matter for close discussion. We are confident that the remedies we are bringing forward and the amendments that fall within the scope of today’s proceedings are the optimal way of making sure that we have a new system that is fair and, crucially, provides the most robust possible remedy to the concerns being raised.
Amendment 2 agreed to.
Amendments made: 3, in clause 1, page 2, line 37, at end insert
“, or
(c) is, as a result of a local government contracting-out transfer, pensionable service under a pension scheme that offers pension arrangements that are broadly comparable with those offered to the person before the transfer.”.
This amendment amends the definition of “disqualifying gap in service” so that it includes a period during which the person was transferred to a private sector employer under local government contracting out arrangements.
Amendment 4, in clause 1, page 3, line 3, after “scheme” insert “or excess teacher service”.—(Mr Clarke.)
This amendment is consequential on the amendment of the second condition in this clause made by separate government amendment.
Clause 1, as amended, ordered to stand part of the Bill.
Clause 2
Remediable service treated as pensionable under Chapter 1 legacy schemes
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 2 is a crucial provision that implements the retrospective remedy. It provides that any period of remediable service that was under a new scheme is treated as being, and always having been, service under a legacy scheme instead. That ensures that a person with remediable service is placed, with retrospective effect, in the legacy pension scheme that they would have been eligible to be a member of had they not been moved to a new scheme in or after 2015.
Clause 3 provides that where benefits have been paid they are to be treated as having been paid from the appropriate legacy scheme instead, being the scheme that the person is, and always was, a member of, by virtue of Clause 2. The clause itself does not affect the value or amounts of the benefits already paid. It simply ensures that payments are aligned with the appropriate scheme. Any correction to benefits, as a result of a member choosing to receive legacy benefits instead of the new scheme benefits already paid, is dealt with later in the Bill.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3 ordered to stand part of the Bill.
Clause 4
Meaning of “the relevant Chapter 1 legacy scheme” etc
Mr Clarke
I beg to move amendment 5, in clause 4, page 5, line 4, at end insert—
“(3A) In a case in which any of the person’s remediable service in the employment or office in question is excess teacher service, “the relevant Chapter 1 legacy scheme”, in relation to so much of the person’s remediable service as is excess teacher service, means the local government new scheme mentioned in section 98(2).”.
This amendment updates the definition of “the relevant Chapter 1 legacy scheme” for a case in which a teacher has excess teacher service. A definition of “excess teacher service” is inserted into clause 98 by a separate government amendment.
The amendment concerns only the interaction between the Teachers’ Pension Scheme and the Local Government Pension Scheme and covers the complex issue of future pension service. It updates the definition of the relevant Chapter 1 legacy scheme for a case in which a teacher has excess teacher service and specifies that that is the Local Government Pension Scheme—the LGPS. That allows the member’s excess service to be rolled back to the LGPS, where the member would have been eligible to join the LGPS had they not been moved to the reformed scheme. This ensures that the member’s excess service is rolled back to the correct scheme.
Tulip Siddiq
We very much support the clause.
Amendment 5 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr Clarke
Clause 4 ensures that members are returned to the appropriate legacy scheme, which is the scheme that they would have been entitled to be a member of if they had not been moved to a new scheme on or after 1 April 2015. The apparently complex drafting does nothing more than that. The clause simply reflects that some legacy schemes contain different eligibility provisions.
Question put and agreed to.
Clause 4, as amended, accordingly ordered to stand part of the Bill.
Clause 5
Election for retrospective provision to apply to opted-out service
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 5 requires scheme regulations to make provision to allow a member who opted out in relation to a period between 1 April 2015 and 31 March 2022 to elect for that service to be reinstated as though they had not opted out, if they satisfy conditions that may be specified in the regulations. This ensures that the member can be put back in the position that they would have been in had they not chosen to opt-out as a result of the discrimination.
Peter Grant
Can I raise with the Minister the concern that I raised on Second Reading but did not get an answer to? I welcome the vast majority of clause 5, because it is right that if a member of a pension scheme took a decision about opting in or out based on circumstances that have now changed beyond their control they should be given the opportunity to reconsider that decision. That is absolutely correct. And there has to be some kind of provision as to the conditions about when that right is put in place; I do not have a problem with that.
However, paragraphs (5)(c) and (6)(a) refer to conditions potentially being applied that would require the applicant to submit certain information before the application could be accepted? The House of Commons Library has suggested that one type of information that could be asked for would be for the individual to demonstrate that the reason that they took action was because of what we now know to have been unlawful discrimination built into the scheme.
My question to the Minister is this: is it reasonable to expect somebody to be able to demonstrate that? What standard of proof will be required? I need to remind the Minister that the Windrush scandal happened because the Government retrospectively decided to demand that citizens produce certain information in order to have their rights of citizens respected and they made completely unreasonable expectations on people to have retained information.
Okay, we are talking now about something five or seven years ago instead of 30, 40, 50 years ago, but the principle is still the same. Is it reasonable to assume that people will have kept documentation to demonstrate that they acted on the basis of information at the time and not for some other reason? Can we have an assurance that any regulations will not put an unreasonable burden of proof on people who may well have acted for the reasons set out in the clause, because the chance of them having kept any evidence to prove it five or 10 years later is pretty slim?
Mr Clarke
I can provide the hon. Gentleman with that reassurance. It is simply the case, under the operation of these provisions, that we want people to be able to make a decision at the point of retirement as to which scheme they wish they had been in for the purposes of this seven-year period. There will not be an onerous standard of proof; it will simply be for them to make that determination. I can reassure him that there is nothing that will be, if you like, in any way a high bar for people to satisfy. It is simply for people to make the decision based on their own circumstances and the advice they get at retirement about which scheme would have been best for them.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Immediate choice to receive new scheme benefits
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 6 provides that scheme regulations must make provision for pensioner members and beneficiaries of deceased members to make an immediate choice: whether to elect to receive new scheme benefits in relation to the member’s remediable service, or to receive the default of legacy scheme benefits instead.
Clause 7 provides that an election under clause 6 must be made within one year of the member—or, if the member is deceased, their personal representatives—being provided with details about the benefits available to them in relation to their remediable service, or such longer time as the scheme manager considers appropriate.
Clause 8 provides power for scheme regulations to make provision about situations where a member or their beneficiary fail to communicate to the scheme whether they wish to receive legacy or new scheme benefits in relation to remediable service.
Clause 9 provides that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, an election under clause 6 applies in all of those schemes.
Peter Grant
Again, I have a question that I put on Second Reading that was not truly answered then.
In the background papers for the Bill, the Government suggested that clause 6(7) would apply to a fairly small number of people—I think that was how they described them. These are the people who would have a better deal if they were able to mix and match some provisions from one scheme and some from another, and they are now being told that they can opt for entirely one scheme or the other.
I understand the Government’s position, which is that these are people who have been given a benefit that they would not have had if there had not been unlawful discrimination, so they can have no reasonable objection if it is taken away. I suspect that the people who will lose that benefit will take a different view.
However, my real question was this: how many people are potentially affected? The information I have seen—this is the figure I quoted on Second Reading—is that we could be looking at somewhere up to 245,000 people. That is a small percentage of the total number of pensioners affected by this legislation, but a quarter of a million people cannot be described as a small number. Will the Minister confirm how many people he expects to be affected particularly by the restriction in clause 6(7)?
Mr Clarke
I can commit to write to the hon. Member with our best estimate, although it may be that my officials can provide me with such an estimate. In that case, I will relay it to him in a later answer as we make progress on the Bill.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clauses 7 to 9 ordered to stand part of the Bill.
Clause 10
Deferred choice to receive new scheme benefits
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 10 delivers the Government’s commitment to provide a deferred choice to receive legacy or new scheme benefits in relation to active and deferred members’ remediable service. Having had their remediable service returned to the legacy schemes by virtue of clause 2, once that provision comes into force, clause 10 requires scheme regulations to provide that an election to receive new scheme benefits may subsequently be made in relation to the remediable service of active and deferred members.
Clause 11 provides that scheme regulations must specify a deadline by which an election must be made. That deadline must be no earlier than one year before the day on which the member is reasonably expected to become entitled to a pension in accordance with an election. That is why this is referred to as a deferred choice.
Clause 12 replicates the power in clause 8, but is for active and deferred members, rather than pensioner or deceased members. The power is for scheme regulations to make provision about situations where a member or their beneficiary fails to communicate to the scheme whether they wish to receive legacy or new scheme benefits in relation to the remediable service.
Clause 13 provides that where a person has remediable service in an employment or office that is pensionable under more than one legacy scheme, an election under clause 10 applies in all of those schemes.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clauses 11 to 13 ordered to stand part of the Bill.
Clause 14
Pension benefits and lump sum benefits: pensioner and deceased members
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 14 requires any overpayment or underpayment of pension benefits or lump-sum benefits in relation to a pensioner or a deceased member to be corrected, and sets out how and when that will be done.
Clause 15 applies to pensioner and deceased members to align any member contributions payable in relation to their remediable service with the benefits, legacy or new scheme that are ultimately taken.
Clause 16 provides that any difference between the member contributions paid during the member’s remediable service and those that would have been paid had they always paid legacy scheme member contributions is corrected, on the coming into force of clause 2. Where the member is deceased, their personal representatives will be responsible. Clause 17 provides for member contributions in relation to a deferred or active member’s remediable service to be aligned with the decision under clause 10—that is, the deferred choice—as to which benefits are ultimately paid.
Clause 18 provides a power to allow scheme regulations to make provision to reduce or waive that member’s liability where a member owes overpaid pension or lump-sum benefits to a scheme. It also makes further provision to allow overpaid or underpaid contributions owed by or to a scheme to be reduced to reflect tax relief. That is simply to ensure that the member is returned in the correct position net of tax.
Finally, clause 18 allows amounts in relation to overpaid contributions owed to a member under clause 16 to be reduced or waived by agreement. That is simply to allow members who expect to elect to receive new scheme benefits when they retire to avoid paying legacy scheme contributions in relation to their remediable service during the intervening period.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clauses 15 to 18 ordered to stand part of the Bill.
Clause 19
Pension credit members
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 20 and 21 stand part.
Government amendments 6 to 12.
Clause 22 stand part.
Government amendment 37.
Mr Clarke
The amendments in this group deal with various specific scenarios which may apply to members with remediable service. Clause 19 provides that scheme regulations may make provision in relation to a member who has divorced or dissolved a civil partnership, and, where a pension sharing order is in place, to enable their pension to be shared with their former spouse or civil partner. Clause 20 provides for scheme regulations to make provision in relation to additional voluntary contributions paid during a member’s remediable service.
Clause 21 ensures that, where a member transfers their pension rights from one public service pension scheme to another, they still receive a deferred choice in respect of any remediable service that was subject to the transfer. Clause 22 provides that scheme regulations may make further provision about special cases. The provision that may be made under this clause, or under clauses 19, 20 or 21, includes provision corresponding to any provision in chapter 1 of the Bill or applying any provision of this chapter to persons specified in the regulations.
Clause 22(2) sets out a number of areas where provision may be needed in scheme regulations. These include matters such as the benefits payable to members who had tapered protection, which is termed “mixed service” here, and to members who had a right to buy out an actuarial reduction in relation to early payment of benefits in respect of their remediable service in a new scheme. The amendments that I am about to explain add four areas to ensure that schemes have the necessary powers to deal with specific cases in relation to children’s pensions, partnership pension accounts, redundancy and teachers’ excess service.
Amendment 6 delivers the commitment in the Government’s consultation and consultation response. It set out that where a member has died and a child pension is already in payment, which would otherwise be impacted by a decision taken by someone outside the child’s household, that pension will be protected. The amendment confers power to enable provisions to be made in scheme regulations about the benefits payable where a member dies in respect of surviving children who do not live in the same household as a surviving adult. Amendments 10 and 11 provide clarification by defining “adult survivor” and “child” respectively.
Amendment 7 extends the power to make provision about special cases in clause 22 to enable provision to be made in scheme regulations about excess teacher service. These amendments will allow the teachers’ pension scheme to process excess service cases using existing provisions of the Bill, such as clauses 14 to 17, to correct contributions and benefits whether the service is pensionable in the local government pension scheme or not. Amendment 37 defines “teacher”.
Amendment 8 concerns partnership pension accounts. The Bill already provides for members of the civil service who opted to have a partnership pension account to be reinstated to the appropriate legacy scheme where they so wish. However, there may be cases where that is not possible—for example where the member has died. The amendment therefore provides schemes with powers to make provision to take a different approach where needed to provide a remedy in such cases.
Finally, amendment 9 further amends clause 22 to permit scheme regulations to make provision for cases in which a person who has remediable service is made redundant. This will ensure that schemes are able to make provision for a member to make their deferred choice to receive new scheme benefits at the time their employment ends. This approach will be needed in cases where the member’s redundancy payment is calculated by reference to the pension scheme in which they have remediable service, which is the case, for example, in the armed forces. Amendment 12 inserts a definition of “made redundant”. I beg to move.
Tulip Siddiq
I understand that clause 22 permits changes to the existing and traditional pension scheme and allows for the deregistering of these schemes for tax purposes so that a lifetime allowance tax charge does not apply on the basis that judges are an exceptional case. In making that exception, is the Minister confident that it will not open the door to legal action from other professionals, such as senior doctors, perhaps, who may argue that they want similar treatment?
Mr Clarke
Yes, I can provide the hon. Lady with that reassurance. There is obviously the question whether what we are putting in place for judges is replicable for other professions, and we are confident it is not. That is due to the unique career path of judges, many of whom leave lengthy careers in the private sector to enter public service at the culmination of their careers, and where there is an expectation that, after having served as a judge, there can be no return to private practice. That is precluded uniquely for judges. Once they have made their decision to go to the bench, they cannot then return to practice. That distinction accounts for their very particular career path and very particular constrained options, which means there is a strong case that judges are a unique group for these purposes and therefore there is not discrimination for other professions.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clauses 20 and 21 ordered to stand part of the Bill.
Clause 22
Further powers to make provision about special cases
Amendments made: 6, in clause 22, page 19, line 20, at end insert—
“(da) provision about the benefits payable in respect of a child of a deceased member where—
(i) the member has remediable service in an employment or office, and
(ii) the child is not living in the same household as an adult survivor of the member;”
This amendment confers power to enable provision to be made about the benefits payable, where a member dies, in respect of surviving children who do not live in the same household as a surviving adult.
Government amendment 7, in clause 22, page 19, line 20, at end insert—
“(db) provision about cases in which a person has remediable service in an employment or office any of which is excess teacher service;
(dc) provision about cases in which a person has remediable service in an employment or office and also has service in an employment or office as a teacher which—
(i) takes place in the period beginning with the day after the closing date and ending with 31 March 2022,
(ii) is pensionable service under a Chapter 1 new scheme, and
(iii) is not remediable service;”
This amendment enables provision to be made where a teacher has excess teacher service or has service which takes place in the remedy period, is pensionable under a Chapter 1 new scheme, but would not have been pensionable under a Chapter 1 legacy scheme, or under a local government new scheme, if the unlawful discrimination rectified by the Bill had not taken place.
Government amendment 8, in clause 22, page 19, line 20, at end insert—
“(dd) provision about cases in which a person has a partnership pension account;”
This amendment confers power to enable further provision to be made about cases in which a person has a partnership pension account.
Government amendment 9, in clause 22, page 19, line 20, at end insert—
“(de) provision about cases in which a person is made redundant;”
This amendment confers power to enable further provision to be made about cases in which a person is made redundant.
Government amendment 10, in clause 22, page 20, line 17, at end insert—
““adult survivor”, in relation to a member of a Chapter 1 scheme who has remediable service, means a surviving spouse, civil partner or other adult who is entitled under the scheme to a pension determined (to any extent) by reference to the member’s remediable service;”
This amendment contains a definition required for the amendment of this clause that confers power to enable provision to be made about the benefits payable, where a member dies, in respect of surviving children who do not live in the same household as a surviving adult.
Government amendment 11, in clause 22, page 20, line 19, at end insert—
““child”, in relation to a member of a Chapter 1 scheme, means any individual who—
(a) is entitled to receive benefits under the scheme in their capacity as a child of the member, or
(b) would have been entitled to receive benefits under the scheme in that capacity on the assumption that any election under this Chapter was, or was not, made in respect of the member;”
This amendment contains a definition required for the amendment of this clause that confers power to enable provision to be made about the benefits payable, where a member dies, in respect of surviving children who do not live in the same household as a surviving adult.
Government amendment 12, in clause 22, page 20, line 19, at end insert—
““made redundant”: a reference to a person being “made redundant” includes, in relation to a member of the armed forces, a person becoming entitled to a redundancy payment under—
(a) Part 2 of the Armed Forces (Redundancy, Resettlement and Gratuity Earnings Schemes) (No 2) Order 2010 (S.I. 2010/832),
(b) the Armed Forces Redundancy Scheme Order 2006 (S.I. 2006/55), or
(c) the Armed Forces Redundancy Scheme Order 2020 (S.I. 2020/1298);”—(Mr Clarke.)
This amendment ensures that the power to make provision about cases in which a person is made redundant covers any case in which a member of the armed forces becomes entitled to a redundancy payment under the instruments listed.
Clause 22, as amended, ordered to stand part of the Bill.
Clause 23
Power to pay compensation
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 23 to 25 are concerned with ensuring that schemes have further powers to remedy the discrimination that arose. Clause 23 provides a power for scheme managers to pay compensation in respect of any compensatable losses incurred by members as a result of the discrimination suffered. Clause 24 provides a power for scheme regulations to award a member additional benefits where a member has suffered a tax loss because of the discrimination. Finally, clause 25 provides that scheme regulations for a chapter 1 legacy scheme may make provision to give members with remediable service the facility to enter into new arrangements to pay voluntary contributions, to further address the discrimination.
Peter Grant
I have some similar questions to the one that I asked on clause 10, although the wording here is much more specific. I am looking at clause 25(3), where, again, there is a requirement that if someone wants to pay the additional voluntary contributions that they would have paid earlier but for the change in the scheme regulations, they can do so
“only if the scheme manager is satisfied that it is more likely than not”
that they would have chosen to pay them had they known that the change was coming.
I have a few questions for the Minister. First, how do we ensure consistency of treatment if we have scheme members applying to different scheme managers? Perhaps more importantly, what is the route of redress if someone is unhappy with the decision of the scheme manager? Do the Government plan to legislate in order to set out clearly what the redress is in those circumstances, or do members have to fall back on the grievance and dispute procedures that are built into their terms of employment or the terms of individual schemes? That could mean that we get inconsistency when people in similar circumstances put in similar applications, so that one is approved under the rules of one scheme, and one is not approved under the rules of another. That does not deliver the equality of treatment that the Bill is intended to deliver.
Mr Clarke
I thank the hon. Gentleman for his questions. The short answer is that we will use Treasury directions, which involve technical advice to scheme managers, so that we can ensure that the inconsistency to which he alludes is not broken.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clauses 24 and 25 ordered to stand part of the Bill.
Clause 26
Interest and process
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 26 provides that scheme regulations may make provision about interest on sums owed to, and by, schemes and the process by which such sums are paid.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Treasury directions
Mr Clarke
I beg to move amendment 13, in clause 27, page 24, line 20, leave out “given by the Treasury”.
This amendment ensures that the consultation requirement in subsection (4) of this clause applies to directions given under the clause by the Department of Finance in Northern Ireland.
Mr Clarke
Clause 27 provides that scheme regulations under clauses 18 to 26 must be exercised in accordance with Treasury directions. Where the Northern Ireland Executive have devolved competence for public service pension schemes, directions for those schemes will be issued by the Department for Finance. That ensures that, where Ministers who are responsible for overall policy on public service pensions consider that a consistent approach is necessary, the relevant Department may give directions to schemes about how these powers are exercised in their scheme regulations, further to my point a moment ago.
Amendments 13 and 14 clarify that the Department of Finance in Northern Ireland must consult the Government Actuary before issuing directions concerning the calculation and payment of interest. The change simply ensures consistency with directions given by the Treasury in respect of Great Britain.
Amendment 13 agreed to.
Amendment made: 14, in clause 27, page 24, line 22, leave out “the Treasury has consulted” and insert “consultation with”.—(Mr Clarke.)
This amendment ensures that the consultation requirement in subsection (4) of this clause applies to directions given under the clause by the Department of Finance in Northern Ireland.
Clause 27, as amended, ordered to stand part of the Bill.
Clause 28
Scheme rules that prohibit unauthorised payments
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The purpose of the clause is to override any scheme rules that prevent an unauthorised payment being made where such a payment is permitted or required by the Bill. Treasury directions will specify the type of payments permitted or required.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29
Remediable service statements
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The clause requires schemes to provide members with information about their rights in relation to their remediable service, in the form of a remediable service statement. It is this information that will inform member decisions about whether to elect to receive new scheme benefits or to retain legacy benefits instead, whether to opt for service to be reinstated under clause 5 and whether to opt into remediable arrangements to pay voluntary contributions to a legacy scheme under clause 25. The clause sets out to whom remediable service statements should be provided, what they must include, what they may include and when they must be provided.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Section 61 of the Equality Act 2010 etc
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The purpose of the clause is to prevent any inconsistency in interpretation or application between section 61 of the Equality Act 2010 and its equivalent in Northern Ireland and the provisions contained in or made under this Bill. The clause ensures that the Bill, rather than section 61 of the 2010 Act, provides a remedy for persons affected by the discrimination. Section 61 ceases to have effect immediately before clause 2(1) of the Bill comes into force.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Application of Chapter to immediate detriment cases
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The clause concerns the application of the Bill to so-called immediate detriment cases. The clause ensures that chapter 1 does not automatically apply where an immediate detriment remedy has been obtained. That prevents duplication of compensation, ensures that the Bill does not override any previous court or tribunal orders and provides powers for the scheme regulations to make provision to correct or top up any aspects of the remedy already provided to ensure consistent and fair treatment.
Clause 32 defines where an immediate detriment remedy has been obtained in relation to a person’s remediable service. Persons who meet this definition will have received either a full or a partial remedy for the discrimination identified by a court or a tribunal prior to the Bill and the scheme regulations coming into force in relation to that scheme.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32 ordered to stand part of the Bill.
Clause 33
Meaning of “Chapter 1 scheme” etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 34 to 37 stand part.
Government amendments 15 to 17.
Clause 38 stand part.
Government amendments 33 and 35.
Mr Clarke
I begin by briefly explaining the clauses that are being amended. Clause 33 defines terms such as “Chapter 1 scheme”, “Chapter 1 new scheme” and “Chapter 1 legacy scheme”, to ensure a consistent understanding and application by all readers.
Clause 34 defines “new scheme benefits”. Where a member has remediable service and they elect to received new scheme benefits, they are entitled to receive benefits that are the same as those that would have been payable in relation to that service had they been a member of the new scheme. Further, if a member elects to receive new scheme benefits, they will be paid from the legacy scheme.
Clause 35 defines “legacy scheme contributions” and “new scheme contributions”. Those terms are defined in relation to a member’s remediable service, and are relevant to clauses 15 to 17, which are concerned with the correction of overpaid and underpaid contributions.
Clause 36 defines “opted-out service”. An opted-out service is a service that would have been a remediable service under clause 1 but for the fact that the member chose to opt out of it being a pensionable service. The definition of “opted-out service” includes a service that would have been a remediable service but for the fact that the member opted to participate in a partnership pension account instead.
Clause 37 defines “scheme regulations”, and provides that it has the same meaning as set out in the Public Service Pensions Act 2013 and the Public Service Pensions Act (Northern Ireland) 2014.
Clause 38 sets out further definitions for various terms used in chapter 1.
The amendment in this group are principally minor technical changes to move certain definitions to chapter 4 so that they can have effect on the whole of part 1 of the Bill, and can therefore apply to all public service pension schemes. The changes are consequential to the introduction of several amendments relating to the remedy in local government, which I will describe further under chapter 3.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clauses 34 to 37 ordered to stand part of the Bill.
Clause 38
Interpretation of Chapter
Amendments made: 15, in clause 38, page 30, leave out lines 28 to 33.
This amendment moves a definition from this clause to clause 98 so that it applies for the purposes of the whole Part.
16, in clause 38, page 30, line 44, leave out from beginning to end of line 11 on page 31.
This amendment moves some definitions from this clause to clause 98 so that they apply for the purposes of the whole Part.
17, in clause 38, page 31, line 48, leave out “Part” and insert “Chapter”.—(Mr Clarke.)
This amendment confines the scope of the interpretation provision in subsection (2) of clause 38 so that it applies only for the purposes of the Chapter.
Clause 38, as amended, ordered to stand part of the Bill.
Clause 39
Meaning of “remediable service”
The Chair
With this it will be convenient to discuss the following:
Government amendment 19.
Clause stand part.
Mr Clarke
Clause 39 sets out the conditions that members of a judicial scheme must satisfy to be within scope of the remedy and have their pensionable service considered remediable service.
The two minor amendments to clause 39 are simply clarificatory changes to ensure that a service in scope of the remedy is correctly identified. That ensures that all members within the remedy’s scope can be accurately captured.
Amendment 18 agreed to.
Amendment made: 19, in clause 39, page 32, line 17, at end insert—
“The second condition is met if all of the service in question falls within paragraphs (a) and (b) (even if it does not all fall within only one of those paragraphs).”—(Mr Clarke.)
This amendment clarifies that service meets the second condition in clause 39 even if it falls within more than one of the paragraphs contained in the condition.
Clause 39, as amended, ordered to stand part of the Bill.
Clause 40
Legacy scheme elections
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 40 to 46 relate to the judicial options exercise, where judges will elect whether to receive legacy scheme benefits or 2015 scheme benefits for the relevant service. The clauses set out the conditions for making an election, who may make an election, and the effect of making an election. They also make specific provision for judges who have contributed to a partnership pension account.
Question put and agreed to.
Clause 40 accordingly ordered to stand part of the Bill.
Clauses 41 to 46 ordered to stand part of the Bill.
Clause 47
Cases in which 2015 scheme election treated as made
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 47 to 50 deal further with the effects of a judge’s choice of pension scheme, including where pension benefits have already been paid from, or contributions paid to, a different scheme from the one chosen. They also address the entitlement of child pension benefits and provide for a default in certain circumstances where an election is not made.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clauses 48 to 50 ordered to stand part of the Bill.
Clause 51
Pension benefits and lump sums benefits
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 51 to 56 allow for corrections to be made where pension benefits, including lump sums, and contributions have already been paid and as a result a judge owes money to the scheme or is owed money by the scheme. They also make specific provision where certain sums need to be repaid to the judge or the pension scheme, and provide powers to make provision for a judge’s liability to be reduced, waived or recovered by way of reduction in pension benefits.
Question put and agreed to.
Clause 51 accordingly ordered to stand part of the Bill.
Clauses 52 to 56 ordered to stand part of the Bill.
Clause 57
Pension credit members
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 57 and 58 provide the Ministry of Justice with the power to make provision in relation to pension credit members in the case of divorce, as well as special cases. These clauses are the judicial scheme equivalents of clauses 19 and 22 in chapter 1 of the Bill.
Clause 57 accordingly ordered to stand part of the Bill.
Clause 58 ordered to stand part of the Bill.
Clause 59
Power to pay compensation
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 59 and 60 address the matter of compensation, enabling a scheme manager to compensate members for losses they may have incurred as a result of the discrimination. They also provide powers to provide that members may now make voluntary contributions to judicial schemes where they would have done so but for the discrimination.
Question put and agreed to.
Clause 59 accordingly ordered to stand part of the Bill.
Clause 60 ordered to stand part of the Bill.
Clause 61
Interest and process
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss:
Government amendments 20 and 21.
Clause 62 stand part.
Mr Clarke
Clauses 61 and 62 allow for judicial schemes to apply interest to amounts owed either to or by members as a result of the remedy. They also address the process for making payments that are owed to the scheme. Amendments 20 and 21 will ensure that the consultation requirement in clause 62(4) applies to directions given under the clause by the Department of Finance in Northern Ireland. This requires the Department of Finance in Northern Ireland to consult the Government Actuary before issuing directions concerning the calculation and payment of interest. The change ensures consistency with directions given by the Treasury in respect of Great Britain.
Clause 61 accordingly ordered to stand part of the Bill.
Clause 62
Treasury directions
Amendments made: 20, in clause 62, page 50, line 47, leave out “given by the Treasury”.
This amendment ensures that the consultation requirement in subsection (4) of this clause applies to directions given under the clause by the Department of Finance in Northern Ireland.
Amendment 21, in clause 62, page 51, line 1, leave out “the Treasury has consulted” and insert “consultation with”.—(Mr Clarke.)
This amendment ensures that the consultation requirement in subsection (4) of this clause applies to directions given under the clause by the Department of Finance in Northern Ireland.
Clause 62, as amended, ordered to stand part of the Bill.
Clause 63
Scheme rules that prohibit unauthorised payments
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 63 to 66 make similar miscellaneous provision as in clauses 28 to 30 in chapter 1. They also ensure that members with remediable service are able to make an informed decision before making their election and enable appropriate delegation to ensure efficient implementation of the options exercise.
Question put and agreed to.
Clause 63 accordingly ordered to stand part of the Bill.
Clauses 64 to 66 ordered to stand part of the Bill.
Clause 67
Application of Chapter to immediate detriment cases
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 67 and 68 relate to judges who have already had their remedy determined by a court or tribunal or by agreement with the scheme manager. The default position is that these judges are not covered by previous clauses of the Bill. Clauses 67 and 68 therefore provide the power to make provisions mirroring previous clauses in respect of these judges. That is to ensure that they are returned to the position they would have been in had the discrimination not occurred.
Question put and agreed to.
Clause 67 accordingly ordered to stand part of the Bill.
Clause 68 ordered to stand part of the Bill.
Clause 69
Meaning of “the election period”
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss:
Clauses 70 to 74 stand part.
Government amendment 22.
Clauses 75 and 76 stand part.
Mr Clarke
Clauses 69 to 73 define the meanings of various terms used in chapter 2 relating to the judicial schemes. Amendment 22 simply moves a definition from clause 75 to clause 98 so that it applies for the purposes of the whole of part 1 of the Bill.
Question put and agreed to.
Clause 69 accordingly ordered to stand part of the Bill.
Clauses 70 to 74 ordered to stand part of the Bill.
Clause 75
Interpretation of Chapter
Amendment made: 22, in clause 75, page 55, leave out lines 34 to 39.—(Mr Clarke.)
This amendment moves a definition from this clause to clause 98 so that it applies for the purposes of the whole Part.
Clause 75, as amended, ordered to stand part of the Bill.
Clause 76 ordered to stand part of the Bill.
Clause 77
Meaning of “remediable service”
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss:
Clauses 78 and 79 stand part.
Government new clause 3—Meaning of “remediable service”.
Government new clause 4—Power to pay final salary benefits.
Government new clause 5—Section (Power to pay final salary benefits): transitional provision.
Government new clause 6—Pension credit members.
Government new clause 7—Further powers to make provision about special cases.
Government new clause 8—Power to pay compensation.
Government new clause 9—Indirect compensation.
Government new clause 10—Interest and process.
Government new clause 11—Treasury directions.
Government new clause 12—Interpretation of Chapter.
Mr Clarke
This group of amendments relates to chapter 3, concerning the remedy to the discrimination for local government workers. Let me begin by setting out why there are separate provisions in the Bill relating to local government schemes.
In line with the reform processes applied in other parts of the public sector, local government schemes were reformed by the Government following the review undertaken by the Independent Public Service Pensions Commission. In the local government schemes, however, trade unions, employers and the Government agreed to implement transitional protections for members nearing retirement in a different way. Under that approach, all local government scheme members moved to the new and reformed career average schemes from 1 April 2014 in England and Wales and from 1 April 2015 in Scotland and Northern Ireland. That differed from the approach in other public service pension schemes, where protected members stayed in their legacy schemes.
In their reformed schemes, protected local government workers were given the benefit of underpin protection, providing them the value of their legacy final salary pension if that would have been higher than their reformed scheme pension. Following the Court of Appeal’s judgment, which held that transitional protection unlawfully discriminated against younger workers in the judicial and fire schemes, the Government accepted the wider implications that the judgment had for all schemes, including local government.
Policy consultations were undertaken for local government in 2020. Chapter 3 of the Bill provides the necessary powers to address the discrimination in those schemes, which will be done by extending the statutory underpin to younger members who did not originally have protection. The new clauses in this grouping are designed to ensure that a comprehensive remedy is in place for local government workers. The changes include replacements for clauses 77 and 78, which set out the main principles of the remedy as it will apply in local government.
As many of the new clauses are of a technical nature, I will not explain each in detail, but I hope that the Committee will find it helpful if I explain their themes. I will of course be happy to turn to specific new clauses if members of the Committee have any questions. The first theme is to ensure that, where appropriate, there is a consistent approach with other public service pension schemes. The new clauses will therefore provide equivalent powers to those that already exist in respect of the other public service pensions schemes covered in chapter 1. The new clauses cover technical matters, including compensation, special cases and interest payments. They are necessary to ensure that the complexities arising can be addressed robustly across all workforces.
New clause 3, which is a replacement for the existing clause 77, makes an important change to broaden the scope of eligibility for remedy in local government to align it with all other public service schemes. Under the amended approach, members who were in pensionable service on, before or after 31 March 2012 would be in scope of remedy if they leave local government and return within five years, as well as meeting qualifying criteria. The change ensures that, for example, women are not disadvantaged by their increased likelihood of having breaks in employment, which may be due to childcare.
The second theme is to ensure that the powers reflect the particular circumstances of the local government schemes and the differences in how remedy works there. New clause 4, which is a replacement for the existing clause 78, permits scheme regulations to require that separate periods of pensionable service are aggregated or joined up for underpin protection to apply. That is an important principle in the local government pension scheme, which is locally administered. In England and Wales alone, there are 86 administering authorities. To avoid administrative complexity, established policy is that where scheme members have multiple periods of pensionable service, those are each treated separately unless they are aggregated together. Allowing scheme regulations to require aggregation will ensure that underpin protection can be provided in line with that policy, and that substantial administrative complications in the coming decades are avoided.
New clause 3 also ensures that scheme regulations can reflect another aspect of remedy that is unique to local government schemes. When transitional protections were originally negotiated in the sector, it was agreed that the period of protection should cease when a member reaches their legacy scheme normal pension age, usually 65. In line with the Government’s 2020 consultation proposals, it is proposed that that approach is retained, subject to an overall requirement that underpin protection must cease for all members by 31 March 2022. That is crucial to ensure that, going forward, all LGPS members accrue pension on the same career average basis. The amended clause 77 would ensure that underpin protection reflects this policy intent.
The new clauses also make amendments to ensure that the remedy applies correctly to local government staff who were compulsorily transferred from their employer as a result of outsourcing and were entitled to pension protection. That change is consistent with that made in chapter 1, as we discussed earlier. For those members, the time they spent in a private sector pension scheme will not count towards a “disqualifying gap in service”, which we discussed earlier, when assessing their eligibility for the remedy.
Turning to the final theme, some clarifying changes have been made to ensure that the Bill works as intended. In particular, new clause 5 sets out transitional arrangements making it clear that existing scheme regulations providing for underpin protection are to be treated as being made under the powers in the Bill. That change ensures that it is clear that the same legislative framework applies to the members originally protected and those who have been subject to the discrimination found by the courts. It means that scheme regulations can fully remove the differences between the two groups.
Finally, clause 79 provides important definitions for the terms “local government new scheme” and “local government legacy scheme” as they are used in chapter 3. They are important to the meaning and effective application of the clauses in the chapter, so I recommend that that clause stands part of the Bill. I hope that my explanations regarding the new clauses, which ensure a full and robust remedy for the local government workforce, have been helpful to the Committee.
Tulip Siddiq
I am grateful for the explanation given by the Minister. We support the changes to the local government pension scheme and the other technical amendments, in particular those that aim to broaden the scope of members’ eligibility for the proposed remedy.
Mr Louie French (Old Bexley and Sidcup) (Con)
I rise to declare an interest. Although I have no financial interest in the local government pension scheme, I am still a sitting councillor until May this year, and I sit on the pensions committee. I apologise if I should have made my declaration sooner.
Matt Rodda
I am grateful to the Minister for expanding on those points. I reiterate the importance of listening to the views of women workers in the public sector. They are obviously a large proportion of workers in the public sector, as he well knows. In particular, with this group of new clauses on the local government pension scheme, it is important for the Government to get that right. I urge him to continue to talk and listen carefully to the relevant unions. I should declare an interest as a member of the GMB, which is one of the relevant unions. I believe there is a great deal of knowledge in the local government profession and in the unions on such matters. Please will the Minister consult widely and listen on the fine detail, to ensure that we get it right for the many workers in local government? It is perhaps worth adding that there are a number of other issues with women’s pensions as a whole and a wider context of ensuring that pensions for women are protected and funded properly.
Mr Clarke
I thank the hon. Gentleman for what he said. As a former Minister for Local Government, I absolutely agree with everything he says about the value of local government workers and that women form a disproportionately substantial part of the local government workforce. They make up more than 70% of the scheme’s membership, so it is vital that their voice is listened to, and I commit that it will be.
Question put and negatived.
Clause 77 accordingly disagreed to.
Clause 78 disagreed to.
Clause 79 ordered to stand part of the Bill.
Clause 80
Restriction of existing schemes
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clauses 80 to 83 implement the prospective remedy. First, they close the main unfunded legacy pension schemes to future accrual and ensure that all members who continue in service will do so as members of the reformed schemes from 1 April 2022. Secondly, they close all other existing judicial pension schemes and one scheme for the intelligence agencies from the same date. Finally, they ensure that no new arrangements to pay voluntary contributions to a legacy scheme may be entered into after 31 March 2022.
Question put and agreed to.
Clause 80 accordingly ordered to stand part of the Bill.
Clauses 81 to 83 ordered to stand part of the Bill.
Clause 84
Amendments relating to scheme regulations
Mr Clarke
I beg to move amendment 25, in clause 84, page 62, line 20, at end insert—
“(6A) In section 8 of PSPA 2013 (types of scheme), after subsection (4) insert—
(4A) The extent to which a scheme under section 1 is a career average revalued earnings scheme is not affected by provision contained in scheme regulations that is made under section (Power to pay final salary benefits)of PSPJOA 2022 (local government schemes: power to pay final salary benefits).”
This amendment clarifies that the status of local government new schemes as career average revalued earnings schemes is unaffected by provision made under NC4.
The Chair
With this it will be convenient to discuss the following:
Government amendment 26.
Clause stand part.
Mr Clarke
The clause allows scheme regulations to be made to make consequential, supplementary, incidental or transitional provision in relation to any provision of part 1 of the Bill. It clarifies the procedural requirements that apply to scheme regulations. Subsections (5) and (6) remove an exception to the requirement for Treasury consent in the making of scheme regulations by a responsible authority related to scheme regulations of the Welsh Ministers for fire and rescue workers. The clause also introduces a delegated power for the Treasury to make future amendments to the exceptions set out in section 3(6) of the Public Service Pensions Act 2013.
Amendment 25 is a technical amendment to section 8 of the Public Service Pensions Act 2013 to ensure it is clear that the remedy for local government schemes provided by the Bill does not affect the local government pension scheme’s status as a career average revalued earnings scheme. Amendment 26 contains an equivalent amendment to the Public Service Pensions Act (Northern Ireland) 2014 regarding the local government pension scheme in Northern Ireland.
Amendment 25 agreed to.
Amendment made: 26, in clause 84, page 63, line 18, at end insert—
“(13A) In section 8 of PSPA(NI) 2014 (types of scheme), after subsection (4) insert—
(4A) The extent to which a scheme under section 1 is a career average revalued earnings scheme is not affected by provision contained in scheme regulations that is made under section (Power to pay final salary benefits)of PSPJOA 2022 (local government schemes: power to pay final salary benefits).”—(Mr Clarke.)
This amendment clarifies that the status of local government new schemes as career average revalued earnings schemes is unaffected by provision made under NC4.
Question put and agreed to.
Clause 84, as amended, accordingly ordered to stand part of the Bill.
Clause 85
Amendments relating to the establishment or restriction of schemes
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 85 contains technical provisions relating to the establishment and closure of schemes made under the Public Service Pensions Act 2013 and the Public Service Pensions Act (Northern Ireland) 2014. The clause ensures that the governance and valuation frameworks for public service pension schemes operate correctly when schemes are closed and new ones established.
Question put and agreed to.
Clause 85 accordingly ordered to stand part of the Bill.
Clause 86
Amendments relating to employer cost cap
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss:
Government new clause 1—Amendments relating to employer cost cap.
Government new clause 2—Operation of employer cost cap in relation to 2016/17 valuation.
Mr Clarke
The cost control mechanism is designed to ensure a fair balance of risk between public service pension scheme members and taxpayers with respect to the costs of those schemes. Clause 86 would ensure that there are no cuts to member benefits or increases to member contributions as a result of the cost control mechanism at the 2016 valuations. New clauses 1 and 2 are designed to replace and supplement the clause while preserving its existing effect. That goes to the point that I was discussing with the hon. Member for Hampstead and Kilburn at the outset of this morning’s proceedings.
The cost control mechanism was introduced following the recommendations of the Independent Public Service Pensions Commission in 2011. Although the commission recommended a mechanism to protect the Exchequer from increased costs, the Government went a step further and introduced a mechanism that is symmetrical, so also maintains the value of pensions to members when costs fall. At each scheme valuation, the mechanism assesses scheme costs against a base level. If those costs move beyond a certain amount compared with the base level, member benefits or contribution rates must be adjusted to bring costs back to target. All the main reformed public service pension schemes are subject to the cost control mechanism.
The intention was for the mechanism to be triggered only by unforeseen and unpredictable events. In 2018, the Government Actuary was asked to review the mechanism after the provisional results of the 2016 valuations suggested that the mechanism was too volatile and not operating in line with its objectives. The review commenced in 2020 and his final report was published in June 2021. It contained several recommendations on how to improve the mechanism. Following a full public consultation process, the Government confirmed in October last year that it would take forward three reforms to the mechanism in time for the next scheme valuations. All three reforms are recommendations by the Government Actuary.
New clause 1 sets the legislative framework for the implementation of two of those reforms: the reformed scheme only design and the economic check. A reformed scheme only design means that costs associated with the old legacy schemes are excluded from the mechanism. That will make it more stable and reduce intergenerational unfairness, because comparatively younger members’ benefits or contributions will not change based on the cost of legacy schemes to which they had little, or no, access. That transfers the risk associated with legacy scheme costs to the Exchequer, but ensures consistency between the set of benefits being assessed and the set of benefits potentially being adjusted.
The economic check will ensure consistency between member benefit or contribution changes and changes in the wider economic outlook of the country. There will be a higher bar for benefit reductions or contribution increases if the country’s long-term economic outlook has improved. That will equally apply to benefit increases or contribution reductions if the long-term economic outlook has worsened. The economic check will therefore operate symmetrically for the benefit of both members and taxpayers. It will operate in a transparent way and be linked to an objective and independent measure of expected long-term earnings and GDP growth from the Office for Budget Responsibility. Given that the economic check can only offset or prevent breaches, not cause them, the likelihood of changes to member benefits or contributions will decline.
As some members of the Committee will know, the Government also consulted on a third proposal to widen what is called the cost corridor, which will be implemented through secondary legislation in due course. That, again, is designed to reduce volatility. All three proposals will make the mechanism more stable and allow it to operate more in line with its objectives, giving members greater certainty with respect to their retirement incomes. The changes also reproduce, with technical changes, some subsections of the clause as it stands.
New clause 2 replaces clause 86 as it stands in the Bill. The change will ensure that there will be no cuts to member benefits or increases to member contribution rates as a result of the 2016 valuations. Again, that goes to the important point that we discussed at the outset—members will not lose out. However, any benefit improvements that are due will be implemented.
Tulip Siddiq
We welcome the proposal in new clause 1 for a reformed scheme only design, which means that the cost of the legacy schemes will no longer be included in the cost control mechanism, but will the Minister provide clarity on a number of points? As he has said, it is a very technical Bill, so please bear with me.
On Second Reading, the Chief Secretary to the Treasury stated the Government’s intention to introduce secondary legislation in due course to widen the margin of the cost corridor from 2% to 3% of pensionable pay. Labour broadly supports that, and I recognise that it aims to provide greater certainty for members and the taxpayer, but, were the cost corridor to be widened to 3%, any upward breach of the CCM might potentially have a larger impact on members, as I am sure he recognises. Will he be willing to commit to publishing impact assessments of the proposed changes to the cost corridor for each public service scheme, to evaluate how members would be affected? Additionally, will the Minister confirm what mechanisms are to be put in place to monitor potential breaches of the cost corridor in the scheme, to ensure that members are given advance notice of possible changes in the value of their benefits?
We have far more serious concerns about new clause 2, which introduces a symmetrical economic check to the cost control mechanism. We object to such a scheme being introduced at such a late stage. It appears as if Ministers are making last-minute amendments to steamroller controversial elements of the Bill through without proper scrutiny. I want reassurance from the Minister that that is definitely not the case.
Peter Grant
I share a lot of the concerns that have just been expressed so eloquently from the Labour Front Bench. I have a couple of other issues with what is in the new clauses; perhaps the Minister will explain.
I understand why the Government want to build in growth in the economy, but at the same time I agree fully with the concerns expressed by the official Opposition. In new clause 1, in what circumstances does the Minister envisage
“or any sector of the economy”
becoming relevant? In which particular sectors of the economy does he think that growth will be particularly relevant to local government or other public sector pensions?
The provision goes on,
“the growth in the economy…of the United Kingdom or any part of the United Kingdom”.
Who takes the decision that the economic performance of one particular part of the United Kingdom is relevant to a particular pension scheme or to all pension schemes? What do we mean by a “part” of the United Kingdom? Is that simply the four constituent nations? Can it be influenced more by the economy in London than the economy in Yorkshire?
As the hon. Member for Hampstead and Kilburn mentioned a minute ago, the Bill will be far too vague at this point. It will put far too much power into the hands of, presumably, Ministers. There is no guarantee of any accountability or transparency as to the way this is operated. For that reason, my understanding is that a number of unions, although they support the intention behind new clause 1 in its entirety—I am struggling over whether to oppose the entire new clause, as I want to see a lot of stuff in there in the Bill—have significant concerns about that particular part of the economic check. If I were not opposing the new clause, I would be minded to table a more significant amendment at a later stage in proceedings. Will the Minister explain when he envisages a particular sector of the UK economy to be relevant, and when he expects that to be the economy in a particular part of the United Kingdom?
Finally, the Minister was keen to tell us what the unions had said about the previous transition arrangements. Will he tell us what the unions are saying about the economic check in this part of the Bill? Will he explain why he listened to the unions previously, but does not seem to be listening to them now?
Matt Rodda
I rise to support my hon. Friend the Member for Hampstead and Kilburn. She is making an excellent point, and I am glad that she will press for a vote. The issue here relates to the need for transparency and trust, and the Government must reassure worried public servants, who have worked hard and have every right to expect a decent pension and retirement, that there is no sleight of hand here.
One of the three issues the Minister mentioned is to be dealt with in regulations, and the other two are on the face of the Bill. I would like him to reassure the Committee about the nature of those regulations, how they will be dealt with by the House and when they will be brought forward. I also remind him of the views of the independent Public Accounts Committee, which urged the Government to take the matter seriously, saying that the Government should
“quickly resolve the challenges presented by the McCloud judgment and cost control mechanism”
and that that was important to rebuild trust. I hope the Minister will consider the PAC’s thoughtful advice on this matter.
Mr Clarke
I thank all Members for their contributions, which I will take in turn. I hope to provide significant reassurance.
On the point that the hon. Member for Hampstead and Kilburn made about the widening of the cost corridor, the Government published a full impact evaluation as part of the consultation response on 4 October 2021, so that detail is available and is modelled.
To the point of the hon. Member for Reading East just now, the cost corridor is being addressed in regulations because the current 2% corridor exists under current powers, so we are simply amending 2% to 3% and do not need to introduce anything new.
As for the 25-year guarantee and the assurances given when the pension reforms were first introduced, the Government do not believe that the reforms breach that guarantee. The elements protected by the guarantee are set out in legislation and the cost control mechanism is not included among them. The Government are making these changes following an independent and thorough review of the mechanism by the Government Actuary’s Department and a full and open consultation process. As the GAD’s report makes clear, it does not seem possible for the mechanism to protect the taxpayer unless it considers the wider economic outlook, and the symmetrical operation of the economic check acts to protect members as well as the taxpayer.
The reforms will fundamentally lead to a more stable mechanism, with both benefit reductions and improvements becoming less likely. That aligns with the spirit of the guarantee which, as the hon. Member for Hampstead and Kilburn quite rightly said, is all about certainty. There is absolute conviction that that is in everyone’s interest including, most importantly, scheme members.
As for how the situation is assessed and to the point of the hon. Member for Glenrothes about how we manage the long-term GDP expectation, the check will be linked to the Office for Budget Responsibility’s independent and objective measure of expected long-term GDP growth and the long-term earnings assumptions. The check will operate purely mechanically with no scope for interference from individuals or groups from within Government or outside. It will be an independent, objectively assessed measure by the OBR. There is no sense in which any Minister from whatever party is in government at whatever time would have the ability to intervene in that process. I hope that provides reassurance on all those points.
Tulip Siddiq
I thank the Minister for that explanation. Is there an impact assessment for each scheme?
Peter Grant
Will the Minister clarify something about the other part of my question? Who will decide whether the appropriate measure to use is the growth in the economy of the entire UK, the growth of the economy of one sector, or the growth in the economy of one nation or region? Is that decision within the remit of the OBR?
Mr Clarke
Clause 87 amends the Public Service Pensions Act 2013 to reflect that the secret intelligence service and security service pension schemes have a closing date of 31 March 2016, rather than 2015, as in the other schemes. It also amends the 2013 Act to provide that the schemes are public service pension schemes, not public body pension schemes, and are therefore subject to the provisions of the Bill.
Question put and agreed to.
Clause 87 accordingly ordered to stand part of the Bill.
Clause 88
Amendments relating to the judiciary
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The clause concerns the addition of judicial offices to the judicial pension scheme. It allows the Secretary of State for Scotland or the Lord Chancellor, as appropriate, to add a devolved judicial office holder to the new, reformed judicial pension scheme in response to a request from Scottish Ministers or the Department of Justice. It also enables past service to be taken into account when new offices are added to the scheme.
Question put and agreed to.
Clause 88 accordingly ordered to stand part of the Bill.
Clause 89
Amendments relating to non-scheme benefits
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss Government new clause 13—Amendments relating to pension schemes for members of the Senedd.
Mr Clarke
New clause 13 relates to pension schemes for Members of the Senedd. It removes the requirement for Treasury consent to be obtained before a new scheme can be provided or an existing scheme can be modified. It also removes the requirements of the Public Service Pensions Act 2013 concerning scheme valuations and an employer cost cap from the Senedd scheme. The change is made to reflect the fact that pensions for Members of the Senedd is now a devolved matter for Wales.
The purpose of clause 89 is to clarify existing legislation with regards to eligibility rules of non-scheme benefits. It is an important policy objective that a responsible authority may not pay non-scheme benefits to persons who fall outside the description of eligible persons without prior Treasury consent.
Question put and agreed to.
Clause 89 accordingly ordered to stand part of the Bill.
Clause 90
Power of Treasury to make scheme for compensation
Mr Clarke
I beg to move amendment 27, in clause 90, page 72, line 16, at end insert—
“, or
(c) a compensatable loss for the purposes of section (Power to pay compensation) (power to pay compensation under Chapter 3).”
This amendment ensures that the Treasury’s power to make a compensation scheme under clause 91 covers compensation payable in respect of local government schemes.
The Chair
With this it will be convenient to discuss the following:
Government amendments 28 and 29.
Clause stand part.
Government amendments 30 to 32.
Clause 91 stand part.
Mr Clarke
Clause 90 allows the Government to make regulations to create a compensation scheme in relation to any compensatable losses incurred by relevant members. Clause 85 provides equivalent powers to the Department of Finance in Northern Ireland. Clause 91 provides powers for the Department of Finance in Northern Ireland to create a compensation scheme to make payments under clauses 23 or 59. The provision is equivalent to that made in clause 84.
The amendments in this group are technical and ensure that the powers to create compensation schemes in clauses 90 and 91 could extend to the local government schemes, if considered necessary or desirable to do so.
Amendment 27 agreed to.
Amendments made: 28, in clause 90, page 72, line 22, at end insert—
‘, or
(c) a member of a local government new scheme within section79(2)(a) who has remediable service that is pensionable service under the scheme.’
This amendment ensures that the Treasury’s power to make a compensation scheme under clause 90 covers compensation payable in respect of local government schemes.
Amendment 29, in clause 90, page 72, line 27, at end insert—
‘(c) in paragraph (c), “local government new scheme” and “remediable service” have the same meaning as in Chapter 3.’—(Mr Clarke.)
This amendment ensures that the Treasury’s power to make a compensation scheme under clause 90 covers compensation payable in respect of local government schemes.
Clause 90, as amended, ordered to stand part of the Bill.
Mr Clarke
Clause 92 provides the power for scheme regulations to make provisions in relation to certain fee-paid judges who are not McCloud judges but whom it is accepted should have service in the legacy schemes from April 2015. To return them to the position that they should have been in, the provisions will mirror, where possible, the provision for the retrospective judicial remedy in part 1, chapter 2 of the Bill.
Question put and agreed to.
Clause 92 accordingly ordered to stand part of the Bill.
Clause 93
HMRC information-sharing and other functions relating to compensation etc
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The purpose of clause 93 is to provide a new function enabling HMRC, or anyone acting on its behalf, to exchange information with a relevant person for the purpose of facilitating the exercise of any compensation function, or to do anything else that HMRC thinks necessary or expedient for that purpose. It also extends the criminal offence of wrongful disclosure that applies to confidential taxpayer information to any such information that HMRC provides under the clause.
Question put and agreed to.
Clause 93 accordingly ordered to stand part of the Bill.
Clause 94
Section 91 of Pensions Act 1995 and section 356 of Armed Forces Act 2006
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 94 disapplies section 91 of the Pensions Act 1995 and article 89 of the Pensions (Northern Ireland) Order 1995 to ensure that benefits in relation to a partnership pension may be surrendered where a member makes an election under clauses 5 or 41. It also clarifies that section 356 of the Armed Forces Act 2006 does not apply to anything done under this part of the Bill.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clause 95
Minor amendment
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 95 corrects a minor error in a section of the Judicial Pensions and Retirement Act 1993 pertaining to ill-health retirement benefits.
Question put and agreed to.
Clause 95 accordingly ordered to stand part of the Bill.
Clause 96
Power to make consequential provision
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 96 provides Treasury ministers with the power to make regulations that amend, repeal, revoke or modify other statutes where the need to do so is consequential on provision made by the Bill. Where such regulations affect primary legislation, including devolved legislation, they will be subject to the affirmative procedure. Any amendments to or repeals or revocations of secondary legislation are subject to the negative procedure.
Question put and agreed to.
Clause 96 accordingly ordered to stand part of the Bill.
Clause 97
Meaning of “member” etc
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 97 defines the terms “member”, “active member”, “pensioner member” and deferred member” in part 1 of the Bill.
Clause 98, entitled “Interpretation of Part”, provides definitions for terms used in the Bill.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Clause 98
Interpretation of Part
Amendments made: 33, in clause 98, page 77, line 15, at end insert—
“‘connected’ means—
(a) connected within the meaning of PSPA 2013 (see section 4(6) and (7) of that Act), or
(b) connected within the meaning of PSPA(NI) 2014 (see section 4(6) and (7) of that Act);”
This amendment defines “connected” for the purposes of the whole of Part 1 of the Bill.
Amendment 34, in clause 98, page 77, line 48, at end insert—
“‘excess teacher service’ has the meaning given by subsection (2)”
This amendment refers to the definition of “excess teacher service” inserted into subsection (2) of this clause by separate government amendment.
Amendment 35, in clause 98, page 77, line 49, at end insert—
“‘Fair Deal scheme’ means—
(a) a pension scheme that, in accordance with the Fair Deal Statement of Practice, has been certified by the Government Actuary’s Department as offering, to persons who have been subject to a Fair Deal transfer, pension arrangements that are broadly comparable with those offered to them before the transfer, or
(b) a pension scheme in relation to which the obligation to give such a certificate has been waived in accordance with that statement of practice;
‘Fair Deal Statement of Practice’ means the statement of practice entitled “Staff Transfers in the Public Sector” issued by the Cabinet Office in January 2000, as supplemented and modified from time to time;
‘Fair Deal transfer’ means a transfer of a person’s employment from a public sector employer to a private sector employer in accordance with the Fair Deal Statement of Practice;”
This amendment moves some definitions from clause 38 to this clause so that they apply for the purposes of the whole Part.
Amendment 36, in clause 98, page 78, line 7, at end insert—
“‘local government contracting-out transfer‘ means a transfer of a person’s employment that was required to be conducted—
(a) in accordance with directions given, and having regard to guidance issued, for the purposes of section 101(1) of the Local Government Act 2003 (contracting out: staff transfer matters), or
(b) having regard to guidance issued for the purposes of section 52 of the Local Government in Scotland Act 2003 (asp 1) (guidance on contractual matters);”
This amendment defines “local government contracting-out transfer”. This is an expression used in government amendments of clause 1 and NC3.
Amendment 37, in clause 98, page 79, line 14, at end insert—
“‘teacher’ means teacher within the meaning of PSPA 2013 (see paragraph 4 of Schedule 1 to that Act) or PSPA(NI) 2014 (see paragraph 4 of Schedule 1 to that Act);”
This amendment defines “teacher” for the purposes of Part 1. This is required for other government amendments.
Amendment 38, in clause 98, page 79, line 21, at end insert—
“(2) In this Part ‘excess teacher service’ means a person’s service in an employment or office as a teacher where (disregarding section 2(1))—
(a) the service is pensionable service under a local government new scheme, or
(b) the service—
(i) is pensionable service under a Chapter 1 new scheme for teachers, and
(ii) would have been pensionable service under a local government new scheme but for the person’s failure to meet a condition relating to the person’s attainment of normal pension age, or another specified age, by a specified date.
Service in an employment or office is ‘excess teacher service’ if all of the service falls within paragraphs (a) and (b) (even if it does not all fall within only one of those paragraphs).
(3) In subsection (2)—
‘Chapter 1 new scheme’ has the same meaning as in Chapter 1;
‘local government new scheme’ has the same meaning as in Chapter 3.”—(Mr Clarke.)
This amendment defines “excess teacher service”. This is service as a teacher which is in excess of the maximum that could be accrued under the teachers’ Chapter 1 legacy scheme, but where the service is (or, in certain circumstances would have been) pensionable under a local government new scheme.
Clause 98, as amended, ordered to stand part of the Bill.
Public Service Pensions and Judicial Offices Bill [ Lords ] (Second sitting)
Thursday 27th January 2022
(3 years, 5 months ago)
Public Bill CommitteesPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 January 2022 - (27 Jan 2022)
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chief Secretary to the Treasury (Mr Simon Clarke)
It will be helpful if I can preface my remarks on clause 99 onwards by returning briefly to clause 5 in relation to the question asked by the hon. Member for Glenrothes, because I can now provide some further information about opting into the remedy. The purpose of clause 5 is to rectify any discrimination that may have resulted in members opting out of relevant pension schemes. It is very important that schemes are permitted to require information to be provided by members to establish why they opted out of the relevant pension scheme, as there may be reasons other than discrimination why members have opted out. It is appropriate that schemes have the power, so that they can ensure that the remedy applies for appropriately affected members. The power allows schemes to set conditions in scheme regulations, as schemes will be best able to assess what it is reasonable to expect a member to provide. The consequences of opting back into the pension schemes are very significant for members’ pension rights and therefore it is important that schemes can take decisions under clause 5 while in possession of relevant information. To help to ensure consistency, scheme regulations are generally subject to Treasury consent, which will ensure fairness.
Clauses 99 to 103 will allow the Treasury to make regulations that establish new public pension schemes for the members of the Bradford & Bingley staff and NRAM pension schemes. Those schemes currently reside under UK Asset Resolution, the holding company responsible for the Government’s remaining interests in those companies. The provisions also include protections that will ensure that members’ rights to pensions and other benefits are at least as good following their transfer to the new public schemes, and set out requirements to ensure that members are protected in the event of future changes to the scheme rules. These clauses will further allow the Treasury to make regulations transferring the assets and liabilities of the current schemes to a nominee of the Treasury, or a company established by the Treasury, for their disposal.
Establishing the new schemes will accelerate the timeline for UKAR to be wound up, helping to relieve the taxpayer of the cost of UKAR’s ongoing operations, and create a more efficient structure for the Government to meet their liabilities towards the scheme members.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
The Government have yet to set out the estimated costs of the provisions for Bradford & Bingley and Northern Rock and whether those costs are in addition to the £17 billion budgeted for the McCloud response or are part of the same overall costs. I would be grateful if the Minister could provide some clarity on that matter.
Mr Clarke
To be clear, the measures affecting Bradford & Bingley and NRAM are net cost savings, so this is a net benefit for the Exchequer; it actually reduces costs.
Question put and agreed to.
Clause 99 accordingly ordered to stand part of the Bill.
Clauses 100 to 103 ordered to stand part of the Bill.
Clause 104
Transfer of other pensions and benefits
The Chair
With this it will be convenient to discuss the following:
Government amendment 40.
Clause stand part.
Clause 105 stand part.
Government amendments 41 and 42.
Clauses 106 to 108 stand part.
Mr Clarke
The amendments in this group will ensure that the Bill reflects the conversion of Bradford & Bingley from a public limited company to a private limited company in October 2021, after the introduction of the Bill. Following the nationalisation in 2008, the Government have gradually been divesting their assets in Bradford & Bingley, and confirmed the return of the company to private ownership on 2 November 2021. Prior to the sale, Bradford & Bingley, which was then registered as a public limited company, was re-registered at Companies House as Bradford & Bingley Limited. These amendments will reflect that change, by changing references to Bradford & Bingley plc in the Bill to Bradford & Bingley Limited.
The amendments will allow the Government to transfer pension liabilities residing under Bradford & Bingley to the Treasury. They will also allow information to be shared between the Treasury, UK Asset Resolution Ltd and Bradford & Bingley for the purpose of facilitating those transfers.
Clauses 104 to 108 will make a number of additional provisions, including those giving the Treasury the power to transfer other relevant pension liabilities related to individuals’ past employment at Bradford & Bingley or Northern Rock to the Treasury; conferring powers on the Treasury to vary the way in which taxes apply to persons in scope of part 2, with the intention that this part of the Bill will be tax neutral; conferring powers on the Treasury to obtain the information needed to establish and administer the new public schemes, and to administer the other relevant pension liabilities; and requiring the Treasury to consult the trustees of the current schemes before making regulations concerning the new public schemes.
Amendment 39 agreed to.
Amendment made: 40, in clause 104, page 83, line 11, leave out first “Plc” and insert “Limited”—(Mr Clarke.)
This is one of a number of amendments reflecting the conversion of Bradford & Bingley from a public company to a private company.
Clause 104, as amended, accordingly ordered to stand part of the Bill.
Clause 105 ordered to stand part of the Bill.
Clause 106
Information
Amendments made: 41, in clause 106, page 86, line 6, leave out “Plc” and insert “Limited”.
This is one of a number of amendments reflecting the conversion of Bradford & Bingley from a public company to a private company.
Amendment 42, in clause 106, page 86, line 14, leave out “Plc” and insert “Limited”—(Mr Clarke.)
This is one of a number of amendments reflecting the conversion of Bradford & Bingley from a public company to a private company.
Clause 106, as amended, ordered to stand part of the Bill.
Clauses 107 and 108 ordered to stand part of the Bill.
Clause 109
Retirement date for holders of judicial offices etc
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Government amendment 48.
That schedule 1 be the First schedule to the Bill.
Mr Clarke
Amendment 48 very simply corrects a cross-referencing error in schedule 1. It references the power described in paragraph 44(2) in schedule 1, which confers upon the Lord Chancellor the power to reinstate retired magistrates, rather than referencing sub-paragraph (3), as currently drafted.
Clause 109, together with schedule 1, will increase the judicial mandatory retirement age to 75. Schedule 1 also gives the Lord Chancellor powers, with the concurrence of the Lord Chief Justice, to reinstate retired magistrates below the new mandatory retirement age where there is business need.
Tulip Siddiq
We support the clause, which raises the retirement age of judges to 75, as we recognise the need to deal with the backlog in the judicial system. However, I wanted to make the point to the Minister that measures to deal with the backlog should not distract from efforts to improve the diversity of the judiciary. Shockingly, according to Government data—this will not come as a surprise to the Minister—only 1% of judges were black, and only 4% of senior court appointments came from ethnic minority backgrounds. I want some reassurance from the Minister that the Government will take steps to ensure that this provision does not hinder efforts, in any way, to bringing a more diverse workforce to the bench.
Mr Clarke
I thank the hon. Lady for her point, which was well made. Obviously, judicial diversity is very important. That is something that we place a firm emphasis on as we look to the future of the judiciary. As she rightly says, we must ensure that we can deal with the backlog in our courts, which has accrued due to the pandemic, and also deal with the genuine challenges of ensuring that we have enough people in the medium term.
The measures that we are taking will retain around 2,000 extra magistrates and 400 extra judges annually, when compared with retaining a mandatory retirement age of 70. We therefore believe that that is the right thing to do. We absolutely remain committed—as does the Ministry of Justice, more importantly—to the wider principle that we must do everything within our power to ensure that the bench better reflects modern society.
Question put and agreed to.
Clause 109 accordingly ordered to stand part of the Bill.
Schedule 1
Retirement date for holders of judicial offices etc
Amendment made: 48, in schedule 1, page 105, line 35, leave out “(3)” and insert “(2)”—(Mr Clarke.)
This amendment corrects an error in the cross-reference in paragraph 44(6) of Schedule 1.
Schedule 1, as amended, agreed to.
Clause 110
Allowances for judicial office holders
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 2 be the Second schedule to the Bill.
Mr Clarke
Clause 110 and schedule 2 will provide the Lord Chancellor with the power to pay allowances to judicial officeholders where that power does not currently exist.
Question put and agreed to.
Clause 110 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 111
Sitting in retirement offices
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 3 be the Third schedule to the Bill.
Mr Clarke
Clause 111, by reference to schedule 3, creates new sitting in retirement offices. Schedule 3 lists the existing judicial offices, referred to in the Bill as original offices, in respect of which sitting in retirement offices are to be created.
Question put and agreed to.
Clause 111 accordingly ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 112
Appointment to sitting in retirement offices
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 112 creates the appointing power for the new sitting in retirement offices, as well as a secondary power for regulations to be made by the Lord Chancellor, the Department of Justice in Northern Ireland or Welsh Ministers, as appropriate, to determine eligibility to apply to these offices.
Clauses 113 and 114 make further provision in connection with sitting in retirement appointments, including matters such as remuneration, retirement age and judicial discipline.
Question put and agreed to.
Clause 112 accordingly ordered to stand part of the Bill.
Clauses 113 and 114 ordered to stand part of the Bill.
Clause 115
Power to add new offices
Question proposed, That the clause stand part of the Bill.
Mr Clarke
Clause 115 creates a new power to add new judicial offices to schedule 3, which in turn will create the sitting in retirement equivalent of that office. This power is given to the Department of Justice in Northern Ireland, Welsh Ministers or the Lord Chancellor, as appropriate.
Question put and agreed to.
Clause 115 accordingly ordered to stand part of the Bill.
Clause 116
Consequential etc provision
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss that schedule 4 be the Fourth schedule to the Bill.
Mr Clarke
Clause 116 introduces schedule 4, which makes technical changes to existing legislation to give effect to the new sitting in retirement policy. In some circumstances, schedule 4 also repeals existing legislation.
Clause 116 also creates a new regulation, making power exercisable by the Department of Justice in Northern Ireland, Welsh Ministers or the Lord Chancellor, as is appropriate by context. This power allows additional consequential amendments to be made in connection with part 3 of the Bill, to ensure the new sitting in retirement policies operate as intended.
Question put and agreed to.
Clause 116 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 117
Regulations and directions
Mr Clarke
I beg to move Government amendment 43, in clause 117, page 93, line 22, at end insert—
“(ba) scheme regulations for a local government scheme (within the meaning of Chapter 3 of Part 1), or”
This amendment disapplies the subsections (1) to (7) of clause 117 in relation to scheme regulations for a local government scheme.
Mr Clarke
Clause 117 defines the terms “affirmative procedure” and “negative procedure”, in order that regulations made under the Bill follow the appropriate parliamentary process. Amendment 43 is a clarifying amendment to make clear that the provisions described in clause 117 do not apply to regulations under chapter 3 concerning the local government schemes.
Regulations under chapter 3 have been made under the Public Service Pensions Act 2013 or the Public Service Pensions Act (Northern Ireland) 2014, rather than under this Bill. The 2013 and 2014 Acts contain the relevant provisions for regulations made under those Acts.
Amendment agreed to.
Clause 117, as amended, ordered to stand part of the Bill.
Clause 118
Extent
Question proposed, That the clause stand part of the Bill.
Mr Clarke
The clause sets out that the Act extends to England and Wales, Scotland and Northern Ireland. The devolved Administrations are currently considering providing legislative consent motions where the Bill makes provision in respect of areas of devolved competence.
Question put and agreed to.
Clause 118 accordingly ordered to stand part of the Bill.
Clause 119
Commencement
Mr Clarke
I beg to move amendment 44, in clause 119, page 94, line 10, leave out paragraph (d) and insert—
“(d) Chapter 3, and sections 97 and 98 so far as they apply for the purposes of that Chapter, come into force in relation to a local government scheme within section79(2)(a) or (3)(a) on—
(i) 1 October 2023, or
(ii) such earlier day as the Treasury may by regulations appoint;
(da) Chapter 3, and sections 97 and 98 so far as they apply for the purposes of that Chapter, come into force in relation to a local government scheme within section79(2)(b) or (3)(b) on—
(i) 1 October 2023, or
(ii) such earlier day as the Department of Finance in Northern Ireland may by order appoint;”.
This amendment ensures that Chapter 3 of Part 1 (local government) comes into force, at the latest, on 1 October 2023, and confers power on the Treasury (or, in Northern Ireland, the Department of Finance) to bring the Chapter into force earlier.
The Chair
With this it will be convenient to discuss the following:
Government amendments 45 and 46.
Clause stand part.
Mr Clarke
The clause provides when and how the provisions of the Bill are to come into force, including powers for certain provisions to be brought into force by commencement regulations. The amendments in the group relate to local government schemes and align the coming into force of the Bill with that provided for in respect of the chapter 1 schemes. The amendments provide that chapter 3 of the Bill, to the extent that it has not come into force already, should come into force on 1 October 2023, unless regulations issued by HM Treasury or the Department of Finance in Northern Ireland provide for an earlier date. This change ensures consistency across the public service pension schemes and allows time for local administrators to make detailed preparations for the implementation of the remedy.
Amendment 44 agreed to.
Amendments made: 45, in clause 119, page 94, line 41, at end insert “, or
(b) Chapter 3, or sections 97 and 98 so far as they apply for the purposes of that Chapter, in relation to a local government scheme within section79(2)(b) or (3)(b).”.
This amendment is consequential on Amendment 44.
Amendment 46, in clause 119, page 94, line 46, after “(2)(b)” insert “, (2)(da)”.—(Mr Clarke.)
This amendment is consequential on Amendment 44.
Clause 119, as amended, ordered to stand part of the Bill.
Clause 120
Short title
Mr Clarke
The purpose and effect of clause 120 is to confirm that the short title of the Bill is the Public Service Pensions and Judicial Offices Act 2022. Amendment 47 is a procedural amendment to remove the privilege amendment from the other place.
Amendment 47 agreed to.
Clause 120, as amended, ordered to stand part of the Bill.
New Clause 1
Amendments relating to employer cost cap
“(1) Section 12 of PSPA 2013 (employer cost cap) is amended in accordance with subsections (2) to (9).
(2) After subsection (1) insert—
“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.”
(3) For subsection (2) substitute—
“(2) A reference in this section to “the employer cost cap” of a scheme under section 1 is a reference to the rate set by virtue of subsection (1) in relation to the scheme.”
(4) In subsection (3)—
(a) after “cap” insert “of a scheme under section 1”;
(b) after “set” insert “, and the changes in the cost of such a scheme are to be measured,”.
(5) In subsection (4)—
(a) in paragraph (a), for “the cap” substitute “the employer cost cap of the scheme”;
(b) in paragraph (b)—
(i) for “subsequent valuations” insert “the second or any subsequent valuation”;
(ii) for “the cap” substitute “the employer cost cap of the scheme”;
(c) in paragraph (c)—
(i) for “the extent to which” substitute “whether and if so to what extent”;
(ii) for “of this section” substitute “mentioned in paragraph (b)”;
(d) after paragraph (c) insert—
“(d) that the data, methodologies and assumptions that are to be used for the purposes mentioned in paragraph (b) are to relate, to any extent, to—
(i) the growth in the economy, or any sector of the economy, of the United Kingdom or any part of the United Kingdom,
(ii) the growth in earnings of any group of persons over any period, or
(iii) the rate of inflation (however measured) over any period.”
(6) After subsection (4) insert—
“(4A) The power to give directions by virtue of subsection (4)(d) is not affected by any statement made before 27 May 2021 by the Treasury, or any Minister of the Crown, relating to the data, methodologies and assumptions that are, or are not, to be used for the purposes mentioned in subsection (4)(b).”
(7) In subsection (5)(a) for “(and any connected scheme)” substitute “(determined, if and so far as provided for by virtue of subsection (4)(c), taking into account the costs of any connected scheme)”.
(8) In subsection (6), in the opening words—
(a) for “the scheme” substitute “a scheme under section 1”;
(b) for “the margins” substitute “either of the margins specified under subsection (5)(a)”.
(9) After subsection (7) insert—
“(7A) Treasury directions may specify the time at which any increase or decrease of members’ benefits or contributions that is provided for under subsection (6) is to take effect.
(7B) Treasury directions may require that provision contained in scheme regulations under subsection (6) permits steps to be—
(a) agreed by virtue of paragraph (a) of that subsection, or
(b) determined by virtue of paragraph (b) of that subsection,
only after the scheme actuary has certified that the steps would, if taken, achieve the target cost for the scheme.
(7C) Treasury directions under subsection (7B) may specify—
(a) the costs or changes in costs that are to be taken into account, or
(b) the data, methodologies and assumptions that are to be used,
for the purposes of determining whether any steps would, if taken, achieve the target cost for the scheme.
(7D) In subsection (7B) “the scheme actuary”, in relation to a scheme under section 1, means the actuary who carried out, or is for the time being exercising actuarial functions in relation to, the valuation under section 11 by reference to which it has been determined that the costs of the scheme have gone, or may go, beyond either of the margins specified under subsection (5)(a).”
(10) Section 12 of PSPA(NI) 2014 (employer cost cap) is amended in accordance with subsections (11) to (19).
(11) After subsection (1) insert—
“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.”
(12) For subsection (2) substitute—
“(2) A reference in this section to “the employer cost cap” of a scheme under section 1 is a reference to the rate set by virtue of subsection (1) in relation to the scheme.”
(13) In subsection (3)—
(a) after “cap” insert “of a scheme under section 1”;
(b) after “set” insert “, and the changes in the cost of such a scheme are to be measured,”.
(14) In subsection (4)—
(a) in paragraph (a), for “the cap” substitute “the employer cost cap of the scheme ”;
(b) in paragraph (b)—
(i) for “subsequent valuations” insert “the second or any subsequent valuation”;
(ii) for “the cap” substitute “the employer cost cap of the scheme”;
(c) in paragraph (c)—
(i) for “the extent to which” substitute “whether and if so to what extent”;
(ii) for “of this section” substitute “mentioned in paragraph (b)”;
(d) after paragraph (c) insert—
“(d) that the data, methodologies and assumptions that are to be used for the purposes mentioned in paragraph (b) are to relate, to any extent, to—
(i) the growth in the economy, or any sector of the economy, of the United Kingdom or any part of the United Kingdom,
(ii) the growth in earnings of any group of persons over any period, or
(iii) the rate of inflation (however measured) over any period.”
(15) After subsection (4) insert—
“(4A) The power to give directions by virtue of subsection (4)(d) is not affected by any statement made before 27 May 2021 by the Department of Finance, or any other department, relating to the data, methodologies and assumptions that are, or are not, to be used for the purposes mentioned in subsection (4)(b).”
(16) In subsection (5)(a), for “(and any connected scheme)” substitute “(determined, if and so far as provided for by virtue of subsection (4)(c), taking into account the costs of any connected scheme)”.
(17) In subsection (6), in the opening words—
(a) for “the scheme” substitute “a scheme under section 1”;
(b) for “the margins” substitute “either of the margins specified under subsection (5)(a)”.
(18) After subsection (7) insert—
“(7A) Directions given by the Department of Finance may specify the time at which any increase or decrease of members’ benefits or contributions that is provided for under subsection (6) is to take effect.
(7B) Directions given by the Department of Finance may require that provision contained in scheme regulations under subsection (6) permits steps to be—
(a) agreed by virtue of paragraph (a) of that subsection, or
(b) determined by virtue of paragraph (b) of that subsection,
only after the scheme actuary has certified that the steps would, if taken, achieve the target cost for the scheme.
(7C) Directions under subsection (7B) may specify—
(a) the costs or changes in costs that are to be taken into account, or
(b) the data, methodologies and assumptions that are to be used,
for the purposes of determining whether any steps would, if taken, achieve the target cost for the scheme.
(7D) In subsection (7B) “the scheme actuary”, in relation to a scheme under section 1, means the actuary who carried out, or is for the time being exercising actuarial functions in relation to, the valuation under section 11 by reference to which it has been determined that the costs of the scheme have gone, or may go, beyond either of the margins specified under subsection (5)(a).”
(19) In subsections (3), (4), (5), (8), (9) and (10) omit “and Personnel”.”.—(Mr Clarke.)
This new clause reproduces, with technical changes, the effect of subsections (2), (3), (6) and (7) of clause 86 as it currently stands in the Bill. It also adds provision for the changes to the operation of the cost cap regime that are to be introduced for the 2020 and subsequent valuations - in particular the economic check and the reformed scheme only design.
Brought up, read the First and Second time, and added to the Bill.
New Clause 2
Operation of employer cost cap in relation to 2016/17 valuation
“(1) The requirement in provision made under section 12(5)(a) of PSPA 2013 that the cost of a section 1 scheme must remain within a margin above the employer cost cap of the scheme does not apply, and is treated as never having applied, in relation to the cost of the scheme that is calculated by reference to the scheme’s 2016/17 valuation.
(2) Accordingly, provision made under section 12(6) of that Act does not apply, and is treated as never having applied, in relation to a case in which the cost of a section 1 scheme that is calculated by reference to the scheme’s 2016/17 valuation goes beyond a margin above the employer cost cap of the scheme.
(3) In subsections (1) and (2) and this subsection—
(a) “section 1 scheme” means a scheme under section 1 of PSPA 2013;
(b) “the employer cost cap”, in relation to a section 1 scheme, has the same meaning as in section 12 of PSPA 2013;
(c) a reference to a section 1 scheme’s “2016/17 valuation” is to the scheme’s valuation under section 11 of PSPA 2013 the effective date of which is a date in 2016 or 2017.
(4) The requirement in provision made under section 12(5)(a) of PSPA(NI) 2014 that the cost of a section 1 scheme must remain within a margin above the employer cost cap of the scheme does not apply, and is treated as never having applied, in relation to the cost of the scheme that is calculated by reference to the scheme’s 2016/17 valuation.
(5) Accordingly, provision made under section 12(6) of that Act does not apply, and is treated as never having applied, in relation to a case in which the cost of a section 1 scheme that is calculated by reference to the scheme’s 2016/17 valuation goes beyond a margin above the employer cost cap of the scheme.
(6) In subsections (4) and (5) and this subsection—
(a) “section 1 scheme” means a scheme under section 1 of PSPA(NI) 2014;
(b) “the employer cost cap”, in relation to a section 1 scheme, has the same meaning as in section 12 of PSPA(NI) 2014;
(c) a reference to a section 1 scheme’s “2016/17 valuation” is to the scheme’s valuation under section 11 of PSPA(NI) 2014 the effective date of which is a date in 2016 or 2017.
(7) The actuarial valuation with an effective date of 31 March 2016 that was signed on 18 December 2018 under regulation 123 of the Local Government Pension Scheme Regulations (Northern Ireland) 2014 (S.R. (N.I.) 2014 No. 188) is of no effect.”— (Mr Clarke.)
This new clause reproduces, with technical changes, the effect of subsections (4), (8) and (9) of clause 86 as it currently stands in the Bill.
Brought up, read the First time.
Question put, That the clause be read a Second time.
Tulip Siddiq
I beg to move, That the clause be read a Second time.
I intend to press new clause 14, which I tabled on behalf of the Opposition Front Bench, to a vote. It would require the Government to review how losses arising from the pension trap can be compensated and to report on the review within two months of the passage of this legislation. We are concerned that the Bill does not take into account the so-called pension trap, which means that some members may lose benefits due to a higher retirement age brought in under the new pension schemes. This has come about because police and fire service pensions operate differently from other public sector schemes in that they are based on a 30-year service record rather than a specific retirement age.
The Police Superintendents Association, the Police Federation, the Fire Brigades Union and others have raised fears that individual members could lose out in their pension schemes because of the way that the affected years, between 2015 and 2022, are being treated by the legislation. It cannot be right that pension scheme members in the police and fire service, who have given so much service to the country, will see the overall value of their pensions decline even as they continue to work and to pay contributions, so I ask the Minister whether he will commit the Government to entering discussions with the relevant unions and membership bodies to bring forward a fair solution to the pension trap, as it is called. To demonstrate the Government’s commitment to reviewing the issue and finding a fair solution, he should support the new clause.
Mr Clarke
I thank the hon. Lady for tabling the new clause, which would require the Chancellor to lay a report before Parliament within two months of the passing of the Act setting out how the Government could compensate scheme members who had reached the required number of years to retire with full benefits under the legacy scheme but who would need to continue to work if they wished to retire with full benefits under the reformed scheme. The intention of the new clause appears to be to require the Chancellor to devise a way to compensate scheme members with remediable service for any reduction of future pension benefits resulting from the prospective McCloud remedy legislated for in clause 8, and the difference in pension ages between the legacy and reformed schemes.
The Government received representations made by police staff associations regarding members of the 1987 and 2015 police pension schemes who reached 30 years of service in the legacy pension scheme before reaching minimum pension age in the reformed scheme. Lord Davies of Brixton proposed amendments regarding that issue during the Bill’s passage through the other place; however, by referring to full benefits in the reformed pension scheme, the new clause appears to go considerably beyond the police staff associations’ representations and proposals, effectively requiring compensation for those below normal pension age, not minimum pension age, in the reformed scheme.
Under the Bill, all members in active service will be moved into the reformed schemes in respect of service from 1 April this year onward—that is what is known as the prospective remedy—to ensure that all active members are treated equally from that date onward. For the avoidance of doubt, no legacy scheme member will be unable to access the full value of their accrued benefits in their legacy scheme once they reach the required age or length of service. The vast majority of scheme members will be able to access their benefits in reformed schemes at this point, with a fair actuarial reduction for taking scheme benefits below their normal pension age.
Chris Stephens (Glasgow South West) (SNP)
There is obviously a serious issue here, on which the Government have had representations. Can the Minister assure the Committee that discussions will continue between trade unions and other associations and the Government to try to fix this problem?
Mr Clarke
I thank the hon. Gentleman for the spirit in which he asks his question. We always want to discuss these issues as fully as possible with a view to finding viable options where they exist. As I said, the Home Office has consulted on detailed regulations to implement the prospective McCloud remedy for the police pension scheme, and it will bring forward the outcome of that consultation in due course.
The Government must not take action that inadvertently creates a new form of the very discrimination that this legislation is designed to address. The Government must also safeguard the purpose of the reforms proposed by Lord Hutton and ensure that public service pension schemes are put on a sustainable fiscal footing. As the Independent Public Service Pensions Commission put it,
“Allowing current members to continue to accrue further benefits in the present schemes for many decades would be unfair and inequitable to the new members coming behind them.”
The reformed public service pension schemes remain among the most generous schemes available in the United Kingdom. Based on the Office for National Statistics’ most recent assessment, 6.3 million public sector workers participate in these valuable schemes, while only 0.7 million workers in the private sector have access to defined-benefit schemes that are open to new members.
I am concerned that the new clause ultimately seeks to oblige the Chancellor to devise measures that would contradict these crucial aims of the prospective McCloud remedy. Compensating members with remediable service for the difference in pension age between their legacy and reformed schemes would, effectively, leave a protected class of public service pension scheme members beyond 31 March 2022, which could perpetuate the discrimination identified by the courts, or give rise to new discrimination. It would also severely weaken the efficacy of the prospective remedy for many years to come, at very considerable cost to the taxpayer.
To summarise, I genuinely thank the hon. Member for Hampstead and Kilburn for bringing attention to this issue, and reassure her that the Government have been considering the position of these members. However, careful consideration must be given to the need to avoid perpetuating the discrimination identified by the courts, or introducing new discrimination against other pension scheme members, or inadvertently undoing much of the policy aims of this Bill, and this new clause asks the Chancellor to propose a means of doing just that. I therefore, respectfully, ask the hon. Lady to withdraw the new clause.
Peter Grant (Glenrothes) (SNP)
The Minister started off by suggesting his main concern was that the new clause seeks to go further than has been requested by the Police Superintendents Association. If that was the case, then the Minister could have easily tabled an amendment that came closer, in his view, to delivering what the PSA was asking for without going significantly further. He has not done that, so we have to wonder if he had any intention of addressing the issue had the new clause not been tabled.
We are asking the Chancellor to table a report and present it to Parliament. There is nothing in the new clause that would require the Chancellor to commit a single penny of additional spending. It does not tell the Chancellor what his or her conclusions have to be at the end of that. It is perfectly in line with the wording of the new clause for the Chancellor to produce a report to say, “We could remedy the situation by doing a, b, c, x, y and z, but I cannot recommend doing that because that would introduce unfair discrimination that would be contrary to the purpose of the Act.”
The Minister is trying to make it seem as if the new clause is about forcing the Government to incur additional expenditure. My reading of it is that it is deliberately worded to avoid asking for a commitment at this stage, but it seeks to force the Government to recognise that there might still be a massive weakness in the Bill and to force the Chancellor to come forward with a solution that might address that weakness. If the solution proves to be unworkable or to be unfair in other ways, Parliament has the option to reject it.
Surely, it is wrong, at this stage, that a potentially serious unfairness should be left sitting in the Bill just because we are not sure we can find a way of fixing it. That is not a fair response to give, either to the hon. Member for Hampstead and Kilburn, who moved the new clause, or to those officers who are likely to be affected by it.
Matt Rodda (Reading East) (Lab)
It is a pleasure to serve under your chairmanship, Sir Graham. I pay tribute to our police and fire service. I appreciate that the Minister shares that sentiment. I want to underline the points made by my hon. Friend the Member for Hampstead and Kilburn and others that we are just asking the Government to consider this again and to produce a report. That seems to be the very least that could be asked of them at this point.
It is worth remembering that the police and fire service—these valuable services, which are at the frontline of our public service and respond to challenging issues in our communities—have been through the pandemic after 10 years of quite serious austerity cuts in staff numbers. Once again, I ask the Minister to consider this new clause that asks only for a report to be produced, which would allow further discussion to take place.
I have met the Police Federation and the Police Superintendents Association, both of which have genuine concerns, and I understand that the Fire Brigades Union does, too. We should listen to these public servants. They have genuine concerns. This is an important issue about the future and the status of these services. I ask the Minister to consider the new clause very seriously.
Liz Twist (Blaydon) (Lab)
I rise briefly to echo the points made by my friend the hon. Member for Glenrothes. The new clause calls for a review to consider the issues further. In responding, can the Minister say what steps he will be taking to resolve those outstanding issues and through what form the discussions will take place?
Mr Clarke
I thank the hon. Members for their comments and questions. I entirely echo what the hon. Member for Reading East said about the debt we owe to our police and fire services. Collectively, they are perform enormous public service and we are all in their debt.
We have concerns about the wording of the new clause, particularly where it says that a loss “could be compensated,” implying that compensation should be paid. We are concerned that that creates an expectation on Government.
The Home Office, as the responsible Department, is leading a genuine consultation process about the police pensions services. It will bring forward the outcome of that consultation in due course. To address the issue at this point would fall outside my remit and the remit of this Bill.
Tulip Siddiq
First, I want to say that my new clause is supported by the Police Superintendents Association. I checked it with the association before I tabled it.
I listened to what the Minister had to say, but the new clause does not really propose a solution, which is the Government’s job. We were pushing for a review of the issue, which we know is important to the Police Superintendents Association, the Police Federation and the Fire Brigades Union. I am disappointed that the Minister does not seem to recognise what a concern the pension trap is to those organisations. I wish to push the new clause to a vote, Sir Graham.
Question put, That the clause be read a Second time.
Mr Clarke
I thank you, Sir Graham, the Clerks and the officials for all their work on the Bill, and colleagues throughout the House and in the other place for their contributions. I repeat what I said at the outset about the debt I owe to my team for the hard work that has gone into the Bill, which I really do appreciate. It is very impressive.
As I set out in my opening remarks, the Bill’s underlying intent—that public servants should be provided with high-quality pensions on a fair and equal basis—is shared throughout the House. I listened closely to Members’ comments today and am grateful for them. I hope I have provided reassurance where it was sought and that we can continue to work together on the Bill. I look forward to further consideration on Report.
Tulip Siddiq
Thank you, Sir Graham, for chairing the Committee, and I also thank your co-Chair, my hon. Friend the Member for Ealing, Southall (Mr Sharma).
Even though we did not win the votes, we broadly support the Bill. We recognise that the remedy needs to be put in place. I thank everyone who contributed to the debate and I thank Mark and my team, who worked very hard on the Bill.
Question put and agreed to.
Bill, as amended, accordingly to be reported .
Public Service Pensions and Judicial Offices Bill [Lords]
Tuesday 22nd February 2022
(3 years, 4 months ago)
Commons ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 22 February 2022 - large print - (22 Feb 2022)
16:07 - The House divided: - Ayes: 299 / Noes: 81 - Question accordingly agreed to.
16:21 - The House divided: - Ayes: 198 / Noes: 301 - Question accordingly negatived.
The Chief Secretary to the Treasury (Mr Simon Clarke)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
New clause 1—Guidance to public service pension scheme managers on investment decisions—
“(1) The Public Service Pensions Act 2013 is amended in accordance with subsection (2).
(2) In schedule 3, paragraph 12(a), at end insert ‘including guidance or directions on investment decisions which it is not proper for the scheme manager to make in light of UK foreign and defence policy’.”
This new clause would enable the Secretary of State to issue guidance to those authorities that administer public sector pension schemes, including the local government pension scheme, that they may not make investment decisions that conflict with the UK’s foreign and defence policy.
New clause 2—Investment decisions in funded schemes—
“(1) Section 3 of the Public Service Pensions Act 2013 is amended in accordance with subsection (2).
(2) After sub-paragraph (3) insert—
‘(3A) Scheme regulations must require an authority’s investment strategy to ensure that investment decisions are consistent with the Glasgow Climate Pact 2021.’”
This new clause would require public sector pensions schemes to ensure future investments are consistent with the climate science, ambitions and timeframes agreed at the COP26 UN Climate Summit.
New clause 3—Investment decisions in funded schemes: fossil fuel assets—
“(1) Section 3 of the Public Service Pensions Act 2013 is amended in accordance with subsection (2).
(2) After sub-paragraph (3) insert—
‘(3A) Scheme regulations must require the fund to have removed all investment in fossil fuel assets by 2030.’”
This new clause would require public sector pensions schemes to disinvest from fossil fuels by 2030, by removing fossil fuel assets from their investment portfolios, securities transactions and balance sheets.
New clause 4—Review of the impact of this Act on fairness—
“(1) The Chancellor of the Exchequer must commission a review of the impact of this Act on fairness to members in receipt of pensions to which this Part applies.
(2) The Chancellor of the Exchequer must prepare and publish a report on this review within six months of the passage of this Act and must lay a copy of the report before Parliament.
(3) The review under subsection (1) must include an assessment of the impact of the provisions of this Act on women.
(4) The review under subsection (1) must make recommendations as to whether further legislation should be brought forward by the Government to close the public service pensions gap between men and women.”
This new clause would require the Government to report on the impact of this Part on fairness, especially with regards to women.
New clause 5—Guidance—
“(1) Within six months of the passage of this Act the Chancellor of the Exchequer must lay before Parliament a copy of guidance to members of pension schemes affected by this Part.
(2) The purpose of the guidance under subsection (1) is to ensure members are able to make informed choices about their pensions.
(3) The Government must provide a free helpline or online service which members can use to receive further guidance about their pension.
(4) Within six months of the day on which the guidance is published the Government must lay before Parliament a report on its effectiveness in achieving the purpose in subsection (2).”
This new clause would require the Government to publish guidance to members of pension schemes affected by this Part and allows for provision of a helpline or online service to offer further assistance.
New clause 6—Impact on the recruitment of new holders of judicial offices—
“(1) Within 12 months of the passage of this Act the Government must commission an evaluation of the impact of this Act on recruitment of new holders of judicial offices and on the diversity of the judiciary.
(2) The Chancellor of the Exchequer must prepare and publish a report on this evaluation and must lay a copy of the report before Parliament.”
This new clause would require the Government to publish an annual update on progress on recruiting new members to the judiciary and increasing diversity.
New clause 8—Compensation of losses incurred by closure of legacy schemes—
“(1) The Chancellor of the Exchequer must review how a loss incurred by a member with remediable service who is transferred to the new scheme under section 80 and—
(a) reaches the required number of years of pensionable service to retire with full benefits under the legacy scheme, and
(b) is unable to access the full value of those benefits because they must continue to work to retire with full benefits under the new scheme
could be compensated.
(2) The Chancellor of the Exchequer must prepare and publish a report on this review within two months of the passage of this Act and must lay a copy of the report before Parliament.”
This new clause would require the Government to review how losses arising from the “pension trap” could be compensated, and to report on the review within two months of the passage of the Act.
New clause 9—Equality impact analysis of provisions of this Act—
“(1) The Chancellor of the Exchequer must review the equality impact of the provisions of this Act in accordance with this section and lay a report of that review before the House of Commons within six months of the passage of this Act.
(2) A review under this section must consider the impact of those provisions on—
(a) people with protected characteristics (within the meaning of the Equality Act 2010), and
(b) the Government’s compliance with the public sector equality duty under section 149 of the Equality Act 2010.
(3) A review under this section must include a separate analysis of each separate measure in the Act, and must also consider the cumulative impact of the Act as a whole.”
This new clause would require the Government to review the equality impact of the provisions of this Act, and to report on the review within six months of the passage of the Act.
New clause 10—Report on losses incurred by closure of legacy schemes—
“The Chancellor of the Exchequer must consult with the relevant trade unions and other bodies representing pension scheme members and report within 6 months of the passage of this Act on the options available for addressing in a non-discriminatory manner any loss incurred by a member with remediable service who is transferred to the new scheme under section 80 and—
(a) reaches the required number of years of pensionable service to retire with full benefits under the legacy scheme, but
(b) is unable to access the full value of those benefits because they must continue to work to retire with full benefits under the new scheme.”
This new clause would require the Government to consult with the trade unions and other bodies representing members of the pension schemes who are affected by the “pensions trap” and to report on the options available to address this issue without causing discrimination.
Government amendments 1 to 17.
Amendment 24, in clause 92, page 67, line 39, leave out paragraph (c) and insert—
“(c) leave out paragraph (c).”
This amendment removes from the calculation of the employer cost cap the effect of changes in the cost of connected schemes, including the cost of rectifying the unlawful discrimination.
Amendment 22, page 67, line 39, leave out paragraphs (c) and (d).
This amendment removes from the Bill the amendment to Section 12 of the Public Service Pensions Act 2013 that would allow Treasury directions to determine whether the cost control mechanism would operate.
Amendment 23, page 70, line 27, leave out clause 93.
Government amendments 18 to 21.
Mr Clarke
It is a pleasure to open this debate. I wish briefly to remind Members why this is such an important piece of legislation that we must ensure we get right. Our public servants provide vital services on which we all rely and their unwavering commitment has been particularly vital during the covid pandemic. We have an obligation to continue to provide guaranteed pension benefits to reward those workers for their dedicated service, and must do so on a fairer basis and in a way that ensures that pensions are affordable and sustainable in future.
Let me turn to the amendments that I have tabled, which are largely technical ones to ensure the Bill works smoothly. New clause 7 makes it possible for the judicial pension scheme 2022 regulations to be subject to the made affirmative procedure rather than the draft affirmative procedure, which is the usual process for judicial scheme regulations. The Bill closes all current judicial pension schemes to future accrual on 31 March this year, so the change is necessary to ensure that the new pension scheme is in place for all judges on 1 April. There will therefore be no gap in judicial pension arrangements.
The provision in the new clause is an exceptional use of the made affirmative procedure in respect of judges’ pensions. It is limited to scheme regulations for the judiciary that are made within 28 days of Royal Assent, so it will be used only to make the judicial pension scheme 2022 regulations. It will not apply to any other public service pension schemes, which are generally made under the negative procedure, nor will it apply to any future amendments to judicial pension schemes.
The remainder of the amendments that I have tabled are minor and technical, with the aim of ensuring that the Bill is applied effectively and consistently. Amendment 19 relates to the commencement provision and simply ensures that different provisions in the Bill can come into force at the appropriate time.
Amendments 1 to 14 simply clarify the wording in various clauses in chapter 1. Together, the amendments give schemes the flexibility to implement the prospective and retrospective remedy in the way that is most efficient for their members.
Amendment 16 ensures that the remedy applies correctly to local government scheme members who were formerly members of other public service pension schemes. In particular, it makes sure that former members of other schemes are not disadvantaged because they previously participated in a scheme with a lower normal pension age.
Amendment 17 provides that the power under clause 81 for local government new scheme regulations to make provision regarding special cases must be exercised in accordance with Treasury directions issued by either Her Majesty’s Treasury or the Department of Finance in Northern Ireland.
On judicial offices, amendment 18 changes the extent of schedule 3 to ensure that if Welsh Ministers or the Department of Justice in Northern Ireland make subsequent changes to the list of devolved offices in schedule 3 using the power conferred on them by clause 125(1), incorrect text will not remain in statute in other parts of the United Kingdom.
Amendments 20 and 21 change a reference to the Special Educational Needs Tribunal for Wales to its new title, the Education Tribunal for Wales, thereby ensuring that a relevant sitting in retirement office is created in the Education Tribunal for Wales.
Tulip Siddiq (Hampstead and Kilburn) (Lab)
The pandemic has underlined the contribution made by the public sector workforce to this country. Public sector workers do so much to keep us all safe. Our brave doctors and nurses and those in the police, fire service and other public service professions deserve security and a high standard of living in retirement, so it is so important that the Government provide decent pensions on a fair and equal basis.
As the Minister knows, we welcome the Bill’s main provisions, and particularly the attempt to bring in a remedy in respect of the discrimination against younger members of the new pension schemes established by the coalition Government between 2014 and 2016. We also strongly support the introduction of reformed scheme-only design, which will mean that the cost of the legacy schemes will no longer be included in the cost control mechanism, along with the Government’s proposal to widen the margin of the cost corridor from 2% to 3% of pensionable pay. Those changes will provide greater certainty for members and for the taxpayer.
However, the Minister will not be surprised to hear that we have a number of concerns about the Bill. It is wide ranging and several Members have tabled amendments. I have a limited amount of time, so I will focus on the Opposition Front-Bench team’s primary concerns about the Bill and speak to the amendments that I have tabled on the Opposition’s behalf to address them.
First, I wish to highlight the concerns of public sector employees and trade unions about the lack of clarity on how the remedy, which I remind the House is estimated to cost around £17 billion, will impact the future value of members’ pension schemes. In the Committee debate on 27 January, the Minister stated that
“no member benefits will be cut and no member contribution rates will increase as a result of the 2016 valuations.”––[Official Report, Public Service Pensions and Judicial Offices Public Bill Committee, 27 January 2022; c. 10.]
That commitment is welcome but, as the TUC and others have said, it does not address the question of whether the remedy will be included in future valuations of the cost control mechanism.
Were the cost to be included at a later date, members could see their benefits cut and their contribution rates increase. I remind the House that the Public Accounts Committee warned that such an outcome would be fundamentally unjust as some of the cost of the Treasury’s £17 billion mistake would be passed on to members. Will the Minister please clarify whether the estimated £17 billion cost of the remedy will be included in the valuations of pension schemes under the cost control mechanism at some later date?
Secondly, I wish to discuss the Government’s proposal to introduce a so-called symmetrical economic check to the cost control mechanism. As the Minister will be aware, many public sector workers and their representative organisations believe that the proposals break the Treasury’s 25-year guarantee that no further fundamental reforms would be made to public service pensions following the 2011 settlement with trade unions. The Minister told us in Committee that
“the Government do not believe that the reforms breach that guarantee.”––[Official Report, Public Service Pensions and Judicial Offices Public Bill Committee, 27 January 2022; c. 36.]
However, I found a press statement issued by the Treasury on 20 December 2011 that makes it clear that the guarantee covered significant reform to the cost control mechanism, and the Paymaster General in the Conservative Government at the time said that it represented a “settlement for a generation”.
Does the Minister recognise that his Government’s proposal for an economic check risks undermining the Bill’s purported aim of restoring public service workers’ faith in their pension schemes? The National Education Union, the TUC and PRS have all warned that the proposals unfairly penalise pension scheme members for public sector pay constraint and lower-than-expected life expectancy. In practice, this will likely mean that any downwards breach of the cap will trigger the economic check. It seems the economic check is unfair, so will the Minister now accept that the Government must go back to the drawing board and rethink their proposals? I will be grateful if he addresses that issue.
Robert Jenrick (Newark) (Con)
I rise to speak to new clause 1, which is in my name. The new clause empowers the Secretary of State to issue guidance to authorities that administer public sector pensions schemes that they may not make investments that conflict with the United Kingdom’s foreign and defence policy.
The new clause will resolve a long-standing issue that arose out of the Public Service Pensions Act 2013 and the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016. The issue was whether the Secretary of State had, under their general power to issue guidance provided under the 2013 Act, the ability to guide those who administer pension schemes, particularly local government pension schemes, away from making investment decisions that were contrary to the United Kingdom’s foreign and defence policy.
In 2020, the Supreme Court found by a split decision that the 2013 Act did not confer on the Secretary of State the necessary power to issue that guidance. The purpose of the new clause is to change that by explicitly laying out in law the Secretary of State’s power to offer the guidance to administrators of pension schemes within the public sector, including the local government pension schemes, that investment decisions—by which I mean both investments into a position and divestments from a position—should not conflict with UK foreign and defence policy.
There are multiple reasons for doing that. First and foremost, public service pension schemes that are paid for by the taxpayer by one means or another and underwritten by the state are clearly the preserve of the UK Government and, as such, it is perfectly legitimate that the UK Government have a say in regulating how public pension schemes manage the money that is provided to them by we the taxpayers of the country.
Peter Grant (Glenrothes) (SNP)
May I just probe the right hon. Gentleman’s last point a wee bit? My bank account is stuffed full of what was previously taxpayers’ money. Neither I nor my wife have had any significant income for years that did not come one way or another from the taxpayer. Is he suggesting that the Government should have some say as to how the bank can invest my money to make sure that I get it back when I need it? Is he suggesting that the private pensions that I am lucky enough to have should be subject to Government direction as to where they do and do not invest?
Robert Jenrick
I shall come on in a moment to my own personal views with respect to boycott, divestment and sanctions, but this new clause has no bearing on the actions of private citizens. This is about public sector pension schemes. The broader issue, which I will mention in a moment with respect to tackling BDS within public institutions and the public sector, is all about the public sector; it is not about limiting the freedom of speech or action of the individual.
Robert Jenrick
I would like to make some progress, but I will give way.
Dr Offord
Is my right hon. Friend aware that, only this morning, Hertfordshire County Council was considering a petition submitted by individuals to ask it to divest from its pension scheme? Does he agree that it is the responsibility of elected representatives to ensure that pension schemes have the best and most profitable outcome to allow the members of that pension scheme to receive the best possible income?
Robert Jenrick
Yes, I do, and I will give some other examples of local authorities considering the same actions that my hon. Friend describes.
The argument that I wish to advance is that, for too long, we have seen public pension schemes pursue pseudo foreign policies.
Robert Jenrick
I will make a bit of progress and then I will return to the hon. Gentleman.
All too often, the foreign policy of these public pension schemes is, I am afraid, exclusively focused on re-writing the UK’s relationship with the world’s only Jewish state, Israel.
Christian Wakeford (Bury South) (Lab)
Will the right hon. Gentleman give way on that point?
Robert Jenrick
I will come back to the hon. Gentleman. I appreciate his interest.
The latest example of the politicisation of public pension schemes is by Wirral Council, which is currently considering realising almost £5 million-worth of investments in seven companies. This pet project of a small minority who seek to hijack the money of hard-working taxpayers for their own political ends is of no interest to the public pension scheme holders of the Wirral, or indeed, I suggest, to the public pension scheme holders and rate payers of Hertfordshire.
The politicisation of public sector pension schemes, such as that seen by Wirral Council, is also to the detriment of the UK Government’s relations with states abroad. Supreme Court Justices Lord Arden and Lord Sales established in their judgments that, because the schemes are managed by councils that are part of the machinery of the state, receive taxpayer funding and are underwritten by state regulation outlined in the 2013 Act, they are liable to be identified with the British state. It is perfectly reasonable for an individual, an organisation or a nation abroad to look to these decisions and believe that they are the British state’s intentions. It would be wrong that, owing to a minority of an extreme and well-organised clique, the UK Government’s relationship with an ally has the potential to be undermined. Ultimately, central Government must reclaim their constitutional responsibility for the conduct of the UK’s international affairs. It is for this House to be the place in which those decisions are debated, as I am sure we will see later today. Public service pension scheme trustees must return to their primary duty of achieving maximum returns for scheme members.
Andy Slaughter
The right hon. Gentleman said earlier that this is public money. He will be aware that the Supreme Court, in making a judgment on the previous guidance, specifically said that it is not public money when it is employee or employer contributions; it comes from the rightful employment of the employees themselves. Why does he think that his new clause is different from that? As he has gone on to the specifics, while I am not talking about BDS here, does he think there is a possibility that decisions on investments, say, in illegal settlements, which the Government advise against on economic grounds, could also be caught by his new clause?
Robert Jenrick
The hon. Gentleman makes an important point. The Supreme Court raised two central arguments. One was whether the 2013 Act explicitly gave the Secretary of State the power to issue guidance with respect to investment decisions that conflicted with UK foreign and defence policy. The second point that some Supreme Court Justices raised was whether it was within the remit of the Secretary of State to speak to all public service pension schemes, including those that are funded and unfunded, particularly the Local Government Pension Scheme.
This new clause explicitly provides the Secretary of State with the power to issue that guidance. Were it to pass, and were this ever to be litigated and reach that court, I expect that the Supreme Court Justices would see clearly the intention of this House, which is that the Secretary of State should be able to issue guidance and that that guidance should be applicable to all public service pension schemes. I hope that answers the hon. Gentleman’s point, which is an important one for us all to be clear on if the new clause is passed.
The new clause does nothing to stop private individuals making individual choices about their consumer habits. They remain at liberty to invest in or divest from, purchase from or boycott whichever companies they wish and for whatever reason they so choose. It does, however, make a distinction between the liberties of the private individual and the obligations of public bodies in receipt of public money, and it is grounded in the principle that public money should be spent in accordance with the wishes of the UK Government as expressed by this House.
Christian Wakeford
I am one of those fortunate Members who sit on a local pension board. One of the issues that is often feared, particularly by smaller Jewish communities, is that, rather than focusing on community cohesion, it is about bringing in foreign policy matters that often bring division, when they really want to be settled and to be able to progress and thrive within their local community. Does the right hon. Gentleman agree that the worst thing that could happen would be for the BDS movement to have a say within pension boards and pension funds, and that the best thing we could do is to accept this new clause and bring stability to Jewish communities across the country?
Robert Jenrick
I am grateful to the hon. Gentleman for his support for this new clause, as I am to all those hon. Members across the House who have indicated theirs, and for his long-standing interest in the issue. He makes an extremely important point.
Let me be clear: it should not be assumed that someone expressing their support for Palestine is antisemitic. Of course that is not the case. Many are genuinely moved by the cause of Palestinian statehood and are concerned at Israeli settlements and the actions of the Israeli Government. It is the policy of this Government to pursue a two-state solution. However, one does not have to look very hard to find a pattern of antisemitic behaviour in connection with campaigns promoting a boycott of Israel.
Successive studies have shown that the single best statistical predictor of anti- Jewish hostility is the amount of BDS activity, which comes as no surprise when one inspects the ethical inconsistency within the movement. Why does its concern for humanity, and for the welfare of Muslims in particular, expire at the Jordan river? The BDS movement is mute on neighbouring Jordan or Lebanon, where the Palestinian minority really are second-class citizens, and fell silent when thousands of Palestinians were killed at the hands of the murderous Assad regime.
There has been no call for a boycott of ICICI Bank in response to the egregious human rights abuses being committed against Muslims in India, or for divestments from Huawei following the verdict by an independent tribunal in London that a genocide is being committed against the Uyghur Muslims. That selective concern for humanity, and specifically for the welfare of Palestinians, poses some alarming questions. Why is Israel held to a higher standard than every other country in the world?
Robert Jenrick
I will give way to my right hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb) and then to my hon. Friend the Member for Brigg and Goole (Andrew Percy).
Stephen Crabb
My right hon. Friend is making a powerful speech and I commend him on how he has gone about bringing forward this new clause to close a specific loophole on public sector pensions. In the context of his point about the wider boycott, divestments and sanctions movement, does he agree that it is a pernicious movement that singles out Israel time and again, to undermine the UK-Israel bilateral relationship and the very notion of the integrity of the Israeli Jewish state? I very much hope the Government will accept his new clause, but does he also accept that there is a need for a broader piece of work by the Government to address the BDS movement in its entirety when it comes to public sector choices?
Robert Jenrick
My right hon. Friend makes a series of powerful points, which I entirely agree with. In particular, I agree that, were this new clause to pass, it should merely be the beginning of a wider effort to tackle BDS within the public sector and that we as the Government should make good on our manifesto commitment to a full BDS Bill, which I hope will be in the forthcoming Queen’s Speech.
Andrew Percy
My right hon. Friend is making an excellent speech. The founder of the BDS movement is, of course, somebody who denies the right of Israel to exist—an antisemitic act in and of itself, given that Israel exists in international law. My right hon. Friend says that BDS is the biggest single indicator of antisemitism in this country; I take him back to last year, where we saw the highest number of incidents of antisemitism ever recorded in the UK. The biggest month for those was May last year, following the flare-up of the Israel-Gaza issues. That is a worrying trend, and one that is in part promoted by those who do exactly as he says: single out Israel for treatment they do not apply to other countries and support the BDS movement. That is why we must see this new clause passed and why the Government must move forward quickly on those other issues.
Robert Jenrick
I am grateful to my hon. Friend for his intervention and for the work he does on antisemitism. He is absolutely right that we cannot stand idly by and see levels of antisemitism in this country continue to rise. We must take every opportunity to tackle the issue, and this is one way that we can do so—there are many others. None of us wants to see month after month pass with the Community Security Trust reporting ever higher numbers of egregious antisemitic attacks in this country.
I will make two final points. First, the BDS movement does absolutely nothing to advance the cause of peace. It is because it sees Israel as a colonial endeavour that it views the Israel-Palestine question as an insurmountable framework of conflict between the occupiers—in their eyes—the Israeli Jews, and the occupied—in their eyes—the Palestinian Muslims. That is why it apportions blame for the conflict entirely at Israel’s door and denies the agency of other actors such as Hamas and Hezbollah, both of which we as a country have rightly chosen to proscribe. The sad reality is that many who practise BDS have no intention or interest in brokering a two-state solution.
Scott Benton (Blackpool South) (Con)
My right hon. Friend is making an excellent speech and I commend him on tabling this new clause. Does he agree that the BDS movement has consistently opposed efforts from Israelis and Palestinians to negotiate a peaceful settlement? He referred earlier to Wirral Council and its pensions committee; does he agree that it would be entirely inappropriate for a local authority to be judge and jury on such complex matters as where businesses should and should not invest in contested territory in the middle east?
Robert Jenrick
I agree strongly with both my hon. Friend’s points. On his second point, the motion before Wirral Council is to ask its pensions officer to be the arbitrator of which business it should or should not be investing in within Israel and within settlements. Pity this poor individual, who, instead of going about his normal work as a respectable, hard-working local government officer, must suddenly spend hours, days, weeks or months attempting to understand the intricacies of the Israel-Palestine question and provide advice to a committee of local councillors. It is frankly an absurdity and an abuse of that individual. We should not be seeing this. These questions should rightly be taken forward by the United Kingdom Government.
BDS is ultimately yesterday’s war. In the middle east today things are rapidly changing, and thank goodness for that. As a result of the Abraham accords, we see Arab nations—Gulf states—coming forward to recognise the state of Israel and work with it through science, technology, education and commerce. If Bahrain, the United Arab Emirates, Jordan, Egypt and other nations can do this—even those countries, such as Saudi Arabia, that have not explicitly recognised the state of Israel but are none the less working with it on security matters and other issues—then we as a country should not be tolerating this kind of activity, and certainly not within the public sector. I urge hon. and right hon. Members across the House to support the new clause. I am grateful to the Government for indicating their support. I hope that in the Queen’s Speech later in the spring we will see a wider BDS Bill that makes the UK one of the first countries in the world to really grapple with this issue.
Peter Grant
As I said on Second Reading and in Committee, the SNP supports the intention behind this Bill and we will support it on Third Reading. The intention is to clear up a mess of the Government’s making. I also repeat that, as I said in Committee, I do not have any doubts at all about the sincerity of the Ministers who have led for the Government at various stages of the Bill. I am convinced that they want to get it right and to finish up with an Act that is as fair to everyone as it is possible to be. However, my concern with the Bill currently before us is that even after the Government’s amendments are added in, sizeable numbers of current or former public sector employees will lose out. Given where we have been forced to start from and the scale of the mess that the Government made of this previously, I am not sure that it would ever be possible to produce a Bill that would be fair to absolutely everyone, but the Bill as it stands can still be improved. To that end, we will support such amendments as Opposition Front Benchers want to press to a vote, particularly new clauses 8 and 9.
One of the issues I raised on Second Reading has certainly come to pass: the extraordinary number of amendments the Government had had to table to their own legislation during its passage through the House of Lords. We now know that including the 61 amendments they tabled in Committee and the 28 further amendments tabled today, by the time the Bill gets its Third Reading later on the Government will have had to amend their own legislation no fewer than 212 times. In fact, Members who attended the Bill Committee will have seen the spectacle of the Government tying themselves in knots trying to remove two entire clauses from the Bill and replace them with two entirely new clauses. It was only the speedy intervention of the Clerks and the Chair that prevented the Government from presenting us with a Bill that had all four clauses included despite the fact that some of them were completely contradictory to the others. Eventually the Government had to whip their own Members to vote down two clauses that the Minister had already moved, presumably by mistake.
That incident served only to highlight what many of us on the Opposition Benches have been saying from the beginning—that the Government still cannot reassure us that they are genuinely fully in control of this Bill. I worry that they are very quickly running out of last chances to put it right. There is still a danger that the Bill that receives its Third Reading later today will have flaws and weaknesses that neither the Government nor anybody else have spotted yet. Most of today’s Government amendments are part of the process of picking up flaws or ambiguities in the original Bill, and we will not oppose them. We have some concerns about new clause 7, which provides for a lessening of parliamentary scrutiny in some cases. The Minister has not yet convinced me that that is an appropriate thing to do. I hope that when he winds up he will explain why new clause 7 is appropriate and why, in some cases, parliamentary scrutiny should be diluted in any way.
As I indicated earlier, we will support new clauses 8 and 9 in the name of the hon. Member for Hampstead and Kilburn (Tulip Siddiq). New clause 8 would provide a means of compensating scheme members who, through no fault of their own, stand to lose out as a result of the Bill. The Bill rights a wrong for a very large number of people in public pension schemes but goes in the opposite direction for some, and we should not forget about them. The new clause does not commit the Government, or indeed the scheme employers, to any additional expenditure, but it would require the Chancellor of the Exchequer at least to recognise that this is an issue and to look at whether there are realistic and reasonable ways of resolving it.
New clause 9 would require the Government to review how the Bill operates in the real world—as opposed to the assessment, as with any Bill, before discussions on it began—with regard to equalities. Given how many substantial changes the Government have already had to make to the Bill, it is prudent to accept that, once it comes into force, it might have consequences that the Government have not foreseen, which the new clause would attempt to protect against.
New clause 1, in the name of the right hon. Member for Newark (Robert Jenrick), is a different matter altogether, and the SNP is minded to oppose it. We have heard some of the arguments in favour of it—they are similar to comments made on Second Reading—which simply do not wash. I will not get into an argument now about the BDS movement. If the Government genuinely think that that organisation is a threat to peace and stability in the middle east or elsewhere, they could bring forward legislation to address it—they have had over two years of this Parliament to do so, and they still have time—but this is not the Bill for that.
Richard Burgon (Leeds East) (Lab)
Does the hon. Gentleman share my concerns that the new clause tabled by the right hon. Member for Newark (Robert Jenrick) risks barring ethical investment decisions across the board—for example, in relation to Saudi Arabia? Given that future Governments might decide to support regimes that abuse trade unionists, for example—as we have seen in Colombia in recent years, or in Chile in the past—the new clause would be not only anti-democratic but would risk ethical investment decisions and human rights policies around the world.
Peter Grant
The hon. Member is absolutely right. If the new clause was intended purely to limit the activities of the BDS movement as a precursor to possible further restrictions later on, a very different new clause would have been tabled, and it might have been possible to word it in a way that we would not have significant problems with, but this new clause is far too wide. It could give the Secretary of State—any Secretary of State—the power to prevent any public pension fund from considering any kind of ethical, sustainability or other factors simply because they decide that they are contrary to UK foreign or defence policy.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The hon. Gentleman is making an interesting argument about why the new clause is too wide. Is there not also the problem that it risks investments themselves due to a chilling effect for investors who might not withdraw from an investment when it is economically advisable to do so because of fear of breaking the rules under the new clause, so we could end up with the devaluation of pension schemes?
Peter Grant
I will come on to that later. We need to remember, in all of this, that the trustees of any pension scheme have an absolute fiduciary duty to those who rely on the performance of the fund for their current or future pension. We do not want anything that ties their hands, such as someone saying they should go only for very low-yield investments because that person has objections to the activities of companies that might give a higher yield. There are times when we must question whether it is right to put trustees under that kind of pressure. It is also wrong to suggest that pension trustees, in addition to or instead of their absolute duty to pension scheme members, should have some kind of duty to be a mouthpiece for the British Foreign and Commonwealth Office or the British Ministry of Defence. They are not an arm of Government; these are legally independent trustees, and they have to have that legal independence properly protected.
Stephen Crabb
I am listening closely to the hon. Member’s argument, but I am afraid I just do not accept the points he is trying to string together in what is a fairly strange argument. The reason this amendment is so important and the reason we do not expect council chambers to be dabbling in foreign, defence or security policy is precisely that they are not given the competences over those policies. It is the same for the Welsh Senedd, and the Scottish Government have a limited number of competences. Yes, we want them to exercise their powers fully in those areas where they are given competence, but it is a complete diversion of activity and attention to say that we want councils to be getting involved in incredibly sensitive and complicated subjects of the kind that my right hon. Friend the Member for Newark (Robert Jenrick) has already described.
Peter Grant
I certainly cannot agree with the right hon. Gentleman. As I have made perfectly clear, how the British system works is that Ministers have the authority to take policy decisions, and Parliament is right to hold Ministers to account for that. Parliament has the ultimate right to decide what becomes law. If nobody else is allowed to discuss it, and councils are not allowed to express views in the interests of the people they are there to represent, the whole system starts to fall flat on its face.
It is as plain as the nose on my or anyone else’s face that decisions on foreign policy can easily have a disproportionate impact on residents in some parts of these islands. Certainly, decisions on defence policy can have a significantly greater impact on some places than others. Remember that councils are directly democratically elected by local people to represent their views. Are we suggesting that they should not be allowed to debate matters of foreign policy simply because they do not have the right to take the final decision? If that is what Government Members are saying, why is it that almost every Tory MP who pops up on their hindlegs at Prime Minister’s questions to ask a planted question invites the Prime Minister to interfere in local democratic decision making? We have had two examples today, with the right hon. Member for Newark expressing his views on possible decisions by councils that, with respect, are nothing to do with him, because they are not the council area he represents.
I do not know whether Wirral Council or Hertfordshire will take the right decision, but I am happy to trust the good people of the Wirral and Hertfordshire to sort out councillors who get it wrong too often. That is what local elections are about. I do not like to see the Government, having substantially stripped back the powers of local authorities, then deciding to give local authorities the power to take decisions they agree with, but taking away the power for local authorities to do things that might go in a different direction.
Among all this, we are losing sight of the vital fact that as a matter of law, the trustees of a pension fund are a completely different organisation and a completely different entity in most cases from the organisation whose current and former employees are members of that fund. My wife has for many years been a trustee of the Fife Council pension fund, as well as having clocked up nearly 30 years as a councillor. The decisions that the trustees of the pension fund make are completely different from the decisions many of the same people will take as members of Fife Council. Nobody believes that the decisions of the pension fund reflect the views of the council; the council is not allowed to try to whip pension trustees, for example.
Robert Jenrick
As a matter of law, what the hon. Member is saying is not correct. Pensions within the public sector, as elsewhere, are regulated. They were regulated by the Public Service Pensions Act 2013, and they will be regulated by this Bill. He has been speaking for more than 15 minutes, and it is not clear to me whether the SNP is in favour or against BDS. It is important that he makes clear his position.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I am keen that we do not just have a whole debate about BDS. I want the amendments to be addressed, and there are a few other speakers trying to get in.
Peter Grant
I made the point much earlier that the amendment is not about BDS; BDS is not mentioned anywhere in it. Going back to the question of whose money it is, we can go round in constitutional or legalistic circles, but morally that money belongs to the people who rely on it for their pensions. If members of the pension scheme want to make strong representations to their trustees, saying, “I do not want to profit in my pension from investments that benefit countries that act in breach of international law”, why is it such a bad thing for pension scheme members to be allowed to make those representations to the trustees? Why is it such a bad thing for the trustees to be allowed to say, “At the request of our members, we will take a decision that might not deliver quite such a high yield for the pensioners, but the pensioners are happy to accept that, because they will be comfortable in their consciences about where the money is going and where the profits are coming from”?
We cannot support new clause 1, and we are minded to divide the House on it later. My final point is that every pension fund trustee has a duty entirely to look after the interests of their pensioners and future pensioners. I do not want to see anything being done that gets in the way of that. We will support the Bill on Third Reading, but I hope it will come to Third Reading without new clause 1 included. The fundamental point is that the £17 billion mistake was made by the Government. If we eventually pass the Bill into law to be an Act of Parliament that makes pensioners or their employing authorities pick up part of that tab, it has not done enough. I fear that by tonight we will still have a Bill that has not done enough and that the Government will not be made to take full responsibility for a mistake entirely of their making.
John McDonnell (Hayes and Harlington) (Lab)
I declare an interest in that I am a member of the local government pension scheme. I want to address the amendments standing in my name—new clause 10 and amendments 22 and 24—but I would also like to comment on new clause 1.
On the debate about whether or not this is public money, I thought, as a member of the local government pension scheme, that the Supreme Court was pretty clear that this is not public money in the sense that would enable the Government to issue guidance. However, I have to say that new clause 1 goes further than guidance; it actually includes directions as well. I work on the basis, as I did when I was employed in local government, that the money I earned and the money forgone to invest in my pension scheme was my earned income; it was not public money under the control of the Government.
I think there is a lesson for us all here in that I believe that only in extremis—only in extremis—should the state interfere in one’s own privately earned income. I say that because, in the pension scheme regimes we have at the moment, we have an element of representative democracy with the trustees often being representatives of the workforce and other experts. That reassures me that, as a member of the pension fund, I have an element of say in what those trustees do, if they are appointed, and that enables me and other members of the pension fund to exercise an element of control over decision making, but also to exercise an element of conscience.
Andy McDonald (Middlesbrough) (Lab)
Does my right hon. Friend agree that the clumsy way in which new clause 1 has been worded will create a chilling effect on risk-averse pension scheme managers in fulfilling their fiduciary duties and other responsibilities? Does he also agree that it will significantly incapacitate the ability of pension schemes to invest ethically, and the rights of pension scheme members and pension schemes to express and have ethical views taken into account in the investment of their own money?
John McDonnell
I agree with the first point, but let me take up that last point, because I just want to explain to other Members where I am coming from and get it on the record.
On moral grounds, I have argued very strongly within my own local government pension scheme—so far, I have to say, unsuccessfully—that I do not want the money I have earned, and part of my pension is my earned income, to be invested in a number of states. They include Saudi Arabia, because of its involvement in Yemen. In fact, I have organised demonstrations when there were visits from various representatives from Saudi Arabia to this country. I have argued that I do not want my pension invested in China because of the treatment of the Uyghurs. Again, I have engaged in demonstrations on that, and also on the moral ground that a number of trade union friends I have worked with over the years are currently in prison as a result of the operation undertaken by the Chinese state in Hong Kong. Yes, I have argued against investments going into Colombia because of the murder of trade unionists, and I have also argued against investments going into Israel because I do believe—according to the Amnesty human rights report, and many Jewish institutions—that it is an apartheid state in the way it treats the Palestinians.
That is my position: on moral grounds, I want to be able to influence the investments. I do not want my pension invested in armaments or fossil fuels either, and I believe that that is my right. I do not believe it is the role of the state to ride roughshod over my moral choices without extremely good reason. Given the threat of climate change and other matters, there may well be, in extremis, reasons for the state to act, but I do not think that this new clause is in that context.
Chris Stephens (Glasgow South West) (SNP)
If this new clause had been in legislation in the 1980s, it would have covered South Africa, and the right hon. Member will remember that local authorities drove the anti-apartheid movement, while the UK Government refused to impose sanctions.
John McDonnell
I was chair of finance at the Greater London Council at that time, and I would regularly turn up with my shares with regard to Barclays bank. When Mandela came here—some Members will have been there when he spoke—he and others, including the late Archbishop Tutu, commended those who argued for disinvestment from South Africa in order to bring about a change in that regime, and it worked.
The point I am making—I will finish on this element of it—is that I do not believe it is the role of the state to interfere in this way. Parliament can decide to expand the role of the state, but I think it begins to strain the limits of parliamentary democracy. I have listened to Conservative Ministers warn us in this Chamber about elective dictatorships, so I just warn hon. Members on both sides of the House that once these precedents are set, other Governments will be tempted to follow and, in some instances, go much further. I think this adds to the slow erosion of our civil liberties, freedom of choice and, indeed, human rights.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
On the right hon. Gentleman’s point about his own pension fund, I do not think there would be many countries left in which it could invest. I understand his concerns about pension funds making ethical investments, but the pension fund also has a fiduciary duty to sustain the fund, and to make investments in that respect and for future pensioners who will draw on it. How can he reconcile the two positions?
John McDonnell
I was once, in my callow youth, an adviser to the mineworkers pension scheme, and then I was an adviser at the TUC, working with Lord Bryn Davies, who is one of our colleagues in the Lords at the moment, and there was never a problem with our fiduciary duty of maximising the income to the pension fund itself because of the range of investment opportunities available to us. I think we found in the past that exercising such moral judgment can prove effective in the long term, because it ensures that the fund is not investing in countries that may in the longer term become unstable as a result of the actions they take. I would just say, and I am making a personal point, that I think new clause 1 flies against my ability to exercise my moral duties about investments by my pension fund.
Lloyd Russell-Moyle
Is there not a problem with this, in that it leaves the Secretary of State to decide what the foreign or defence policy might be in an arbitrary way, rather than requiring pension funds to set an ethical policy in which they can say that they do not want to invest in countries where there are human rights abuses? We would still have to treat all countries equally, so they could not target one country or another, but there would be an ethical framework, and this new clause does not allow an ethical framework.
John McDonnell
I would also come out fairly pragmatically and say that there may be some countries that, according to the Government, were not appropriate to invest in a few years ago but now are. I do not want a little red book to be thrown at me again, but I would just cite the fact that the relationship the Government have had with China has changed over the years and, I hope, is changing again at the moment with regard to the Uyghurs.
Let me move on to the new clause and amendments in my name. New clause 10 is a simple reflection of new clause 8, tabled by my hon. Friend the Member for Hampstead and Kilburn (Tulip Siddiq), on the pensions trap. I want to echo what I think she said really eloquently in Committee and today about how the dialogue on this issue must continue, because there is an unfairness at the heart of the legislation we are pushing through at the moment. This affects firefighters, police superintendents and so on, who feel aggrieved, and I feel that a bit more dialogue may enable us to find a solution and restore their confidence in the pension scheme itself. That is why I support new clause 8.
My new clause 10 is simply more explicit about ensuring that there are consultations with the trade unions and other employee representative bodies, and that we seek to overcome the problem so that we have a non-discriminatory approach that does not fall foul of the law.
I turn to my amendment 24, which addresses a complex issue. It reminds me of the debate we had on the d’Hondt proportional representation system, as there were only two people who understood it: Mr d’Hondt, who died, and Jack Straw. Let me just go straight to the point on this matter. I am sorry if I go into some detail. The Chief Secretary to the Treasury said in Committee that
“it is vital that we establish now, for the avoidance of any doubt, that no member benefits will be cut and no member contribution rates will increase as a result of the 2016 valuations. Any benefit improvements due will be honoured, but no additional costs will be imposed. I reassure the hon. Lady”—
my hon. Friend the Member for Hampstead and Kilburn—
“on her important question, that the costs of our remedy genuinely sit with the Exchequer, not scheme members.”––[Official Report, Public Service Pensions and Judicial Offices Bill [Lords] Public Bill Committee, 27 January 2022; c. 10.]
This is complicated stuff. There is a confusion of two issues here. The Government did make a mistake and were challenged in the courts. I fear that that cost burden will now fall on to members of the pension fund, if it is included in the cost mechanism as an employee cost. That is the issue.
I turn to two points in that regard. First, there is the cost to the scheme of giving members the option to choose which benefits—old or new—they want to accrue during the remedy period. Some members will choose benefits that are better for them than they would have received before the McCloud and Sargeant judgments. The scheme will clearly have to meet the cost of paying those benefits—fine. We got the assurance from the Minister that the money will flow—we think it is £17 billion; that is the last estimate—and the burden will not fall on to the members themselves, but that is not what we are talking about here. The issue here is what impact the cost of the remedy should have on the cost control mechanism. I remind Members that this is the mechanism for deciding whether members’ benefits should be changed or, alternatively, whether contributions could be changed.
There is no doubt that treating the cost of the remedy as an employee cost for the purposes of the cost control mechanism leaves members worse off than they would have been had it been treated as an employer cost. I draw the Chief Secretary’s attention to the helpful report from the House of Commons Library entitled “Public service pensions: the cost control mechanism”, which tells us that if we go back to the initial results of the 2012 scheme valuations, which were reported in 2018, the Government said that
“the protections in the new cost cap mechanism mean public sector workers [would] get improved pension benefits for employment over the period April 2019 to March 2023.”
It is those improved benefits that I believe are now at risk if the cost of the remedy is included as an employee cost and not an employer cost.
What does this mean? The improved benefits were required because members had suffered a reduction in the value of their expected benefits over the period 2012 to 2016 because of lower than expected pay increases and because longevity had not increased by as much as had been expected. In other words, the changes would not make members better off; they would simply maintain the value of the benefit package at the level that had been agreed. I apologise to Members, because this is complicated stuff, but it has to go on the record if we are to get redress on this, either today or in subsequent legal actions.
Given the requirement under the cost control mechanism, the respective scheme advisory board then set about agreeing the necessary changes in benefits. In other words, because the pay settlements had not been as large as predicted, and because people were not living as long as the predicted life expectancies, the cost burden on the scheme was less, which should have been reflected in benefits given back to members. The scheme advisory board started looking at what those benefits would be, and the Library report gives an example of packages of changes proposed for the civil service scheme, which included
“a reduction of member contributions; reform of the current contribution rate structure; and increased death benefits.”
The other schemes reflected similar sorts of benefits, so members would gain significantly as a result of this unfortunate situation—unfortunate because they never got enough pay settlements and never had the increase in life expectancy. Nevertheless, because those costs never fell on to the scheme, they should have been paid back to members.
In December 2018, the Court of Appeal ruled that part of the reforms amounted to unlawful discrimination. That was followed by the decision by the then Chief Secretary that the cost control element of the 2016 valuations should be put on hold. In other words, the members were to gain those benefits because of the cost control mechanism, the court decision took place, and the Government then froze the whole process. Eventually, the Government restarted the process and published the Treasury directions in October last year. The problem with the directions is that they treat the cost of remedying the Government’s mistake, as calculated for the purposes of the cost control mechanism, as a member cost, not an employer cost.
The important point to understand is that there is nothing inevitable about the remedy as a member cost. It has always been accepted that there are certain elements in the calculation involved in the cost control mechanism that are regarded as member costs that will impact on the cost control mechanism itself, but there are also other elements in the calculation that are employer costs and do not impact on the cost control mechanism. For example, the impact of changes in pay increases and mortality are obviously member costs, but changes in the discount rate and price increases are the employer costs. It is strongly argued by the trade unions, completely understandably, that mistakes made by the employer—that is, the Government—are employer costs.
What has never been discussed is how to treat the cost remedy incurred by the Government’s own error, and that is what needs to be addressed today. It was the Government’s mistake to have age discrimination in the scheme. The Minister in Committee said it was reflected in trade union representations, but as has been said by the Public Accounts Committee and others, the Government are the Government; they should have foreseen that there was the potential for discrimination. It is the Government who introduced the measures. It is the Government who are responsible for the Treasury directions and any legislation. It was a mistake by the Government. It is therefore logical that the cost of the remedy should be treated as an employer cost for the purposes of the cost control mechanism.
I apologise to hon. Members for the complexity of this, but it is important that we get on the record very explicitly that members of these pension funds should not have to pay in the long term for Government mistakes and should therefore have gained the benefit of either reduced contributions or enhanced benefits, because that is contained in what the Government agreed a number of years ago as the cost control mechanism.
Christine Jardine (Edinburgh West) (LD)
This is an important Bill, but Liberal Democrats believe there are still several serious concerns that need addressing. More support is needed for individuals in making decisions; perhaps a helpline would be useful. There are implications for women—the pensions gap. There is also the potential negative impact on diversity in the judiciary, which is currently dominated by a generation of older white men.
I will focus on Liberal Democrat new clauses 4, 5 and 6, but first let me say that the Liberal Democrats will not be supporting new clause 1, tabled by the right hon. Member for Newark (Robert Jenrick). That is nothing to do with BDS; it is because the wider implications and unintended consequences could be significant in cases such as Xinjiang, where we believe a genocide is taking place. That is not Government policy, so what would the Government direction be in that case? Our concern is the wider implications and unintended consequences.
New clause 4 would require the Government to review the impact of the Bill on fairness. It calls a review of fairness and just treatment, particularly with regard to members of current schemes. It is important to ensure that members of current schemes are not caught in the pensions trap. Women are more likely than men to have taken time off work for caring responsibilities. Under some of the new schemes, which are based on age, they will have to work longer. The issue of gender in pensions is not new, and this would not be the first time the House made a misstep.
The gender pension gap is the percentage difference in pension income between female and male pensioners. The latest research showed that it had increased to 37.9%; we must be aware of that. The deficit will continue, so the amendment seeks to highlight the importance of this issue and the need for urgent measures to address it.
New clause 5 is about access to information and would require the Government to publish guidance to members of affected pension schemes and allow for provision of a helpline or online services to offer further assistance in important decisions for people’s futures. It is important that we think of the Bill in terms of individuals—the people whom it will affect—and their futures, what guidance and support will be provided to each person, how that will be resourced and how the Government will signpost that. That is key. We have seen with pensions for women born in the 1950s that when decisions and timings were not signposted, that had a massive impact on them when they found that their pension age had changed. We must not do that again—and we still have not rectified the first mistake. The Government have already accepted that people with complex tax issues can have financial advice. The same should be the case for millions of public sector workers who will have to make such choices, so the Government should put a helpline in place for that.
New clause 6, would require the Government to publish an annual update on progress in recruiting new members to the judiciary and on increasing diversity. It is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society in which we live if they are to be respected. They must be seen as part of the current era, to reflect society’s trends and understand those trends, but there is perhaps a perception that they do not, and we are all concerned about that.
Although the proportion of judges who are women continues to increase gradually, women remain under-represented in judicial roles. That is particularly the case in the courts, where 32% of all judges and 26% of those in more senior roles are women, compared with 47% of all judges in tribunals. I am sure we would all like to see those figures addressed. The situation with black, Asian and minority ethnic judges is worse, with the figures being 4% for High Court judges and above compared with 8% of all court judges and 12% of tribunal judges. Surely that is far from acceptable. The new clause would ensure that the Government published an annual update on progress in this important area.
This is an important Bill and it is important that we address the issues in it. However, we must do that properly and ensure that there are not unintended consequences.
Zarah Sultana (Coventry South) (Lab)
I rise to speak to new clause 1. The year was 1985. After a campaign lasting decades, 123 councils answered the call for solidarity with the South African anti-apartheid movement and adopted policies opposing that injustice, including 39 councils that had divested from companies operating in South Africa and Namibia. While the Prime Minister, Margaret Thatcher, was calling the African National Congress and Nelson Mandela terrorists and Young Conservatives were proudly wearing badges calling for him to be hanged, local authorities were on the right side of history, standing up to the horror of apartheid. Of course, the Conservative Government could not tolerate that, so, a few years later, to weaken the anti-apartheid movement, they brought in laws making it illegal for local councils to boycott South African and Namibian goods. Looking back, it is crystal clear who was on the right side of history and who was on the wrong side.
The new clause, in the name of the right hon. Member for Newark (Robert Jenrick), would ban local councils from taking such a stand. Had it been in place back in 1985, because the Conservative Government supported apartheid South Africa—let us not forget that—local councils, no matter the strength of local feeling or the righteousness of the cause, would have been prevented from divesting pension funds from apartheid South Africa. They would have been compelled to be complicit in injustice.
Government Members may argue that that is history and things are different now. I contest that the facts say otherwise. The House knows that British-made weapons and diplomatic support are integral to the Saudi war in Yemen. Even as that war has claimed the lives of more than a quarter of a million people, pushed more than 20 million into absolute destitution and resulted in grave violations of international law, British complicity has continued. The new clause could deny councils the right to divest from arms companies whose bombs rain down on the people of Yemen. Similarly, if a local authority wanted to align its pension fund with international law and divest from companies operating in illegally occupied Palestinian lands, the new clause risks denying it that right, too.
Lloyd Russell-Moyle
The Israeli Labor and Meretz parties, our sister parties in Israel, have both written to the leaders of the Labour party and to all of us to say that they want divestment from companies that invest in the occupied territories. Israeli Members of Parliament are asking us to do this. New clause 1 goes against what they are asking us to do, does it not?
Zarah Sultana
Yes, it does, and I was proud to stand on a Labour manifesto committed to that policy, too.
With the rapidly accelerated threat of climate catastrophe and the need to consign the fossil fuel industry to the dustbin of history, new clause 1, at the worst possible moment, risks outlawing councils from standing up for climate justice and banning divestment of pension funds from companies that are setting our planet on fire. [Interruption.] The hon. Member for Brigg and Goole (Andrew Percy) laughs, but this is an actual threat. I am not sure if he is a climate denialist, but he should really look into that.
These are just some of the blatant affronts to local democracy and ethical investments. New clause 1 is so vague and so badly worded that it would have a chilling effect on public sector pension investments. It could be weaponised against any human rights campaign that raises concerns about pension investments in any company that is not formally on a UK sanctions list. As Amnesty International and Human Rights Watch warn, it is so badly worded that, in fear of committing an offence, pension scheme managers could be forced to break their fiduciary duties.
In 1959, an anti-apartheid campaigner and Nobel peace prize winner called Albert Lutuli put out a call for global solidarity. In Britain, hundreds of thousands of campaigners responded, launching a boycott of South African goods. People across the country did what they could do to end the injustice. In my city of Coventry, the local Labour party led the fight, distributing leaflets, holding public rallies and even displaying a large poster in the city for a whole month, publicising the boycott and raising awareness about apartheid. As so often in history, it was the actions of local people, anti-racist campaigners, trade unionists and local councils that led the way, counteracting Westminster’s complicity.
Those actions, while small in themselves, were part of a global anti-apartheid movement that was instrumental in bringing an end to this injustice. We should learn that lesson. I strongly encourage Tory Members to learn the lessons of history. We should empower local councils to make democratic ethical investment decisions, not outlaw them, as new clause 1 does. [Interruption.] I therefore encourage Members on the Government Benches, especially the very enthusiastic hon. Member for Brigg and Goole, to vote against it.
Andy Slaughter
Perhaps I should begin by following the example of my right hon. Friend the Member for Hayes and Harlington (John McDonnell) in declaring my association with a local government pension fund. I chaired the pension committee of my local authority for a number of years. I am pleased to say that since I stopped doing that it has become much more ethical. I can now tell the House that the pension fund now has the lowest percentage of its fund invested in fossil fuels of any local authority in the UK, with the aim of net zero by 2030. I take no credit at all, other than the fact that it is now chaired by my researcher.
I should also say that I used to be member of the local government pension scheme, but I moved the tiny amount of money I had in that to the MP scheme, so I do not know whether I should declare that. I wonder if we should all be declaring that fact, given that although the MP scheme is not subject to the McCloud judgment, its trustees have said they will follow the McCloud judgment. For the avoidance of doubt, I put all that on the record. I do not think I have much time left now, but let us see.
I generally support the Bill, which is undoing mistakes that the Government made which were exposed by the McCloud judgment. I do, however, have a slight reservation. Nobody has mentioned the matters relating to judicial retirement ages. I see exactly the force of why they need to be increased, although I share the reservations of the Law Society that going from 70 to 75 will actually set back diversity in the judiciary, hopefully only temporarily, because of those who will be eligible to stay on in their roles. However, we are in such a parlous state in relation to the shortage of judges and the crisis in the courts that I can see the force of the argument.
I will be brief because, in a way, by talking too much about new clause 1, we are giving it more credibility than it deserves. It does not really deserve a place in this Bill. I suspect that the right hon. Member for Newark (Robert Jenrick) knows that, and actually, we should congratulate him on managing to squeeze it into the long title of the Bill. I felt that it was slightly surreal to be listening to a speech about the Abraham accords in relation to a technical Bill about pensions. We will have, hopefully, a three-hour debate on recognition of the Palestinian state on Thursday in this Chamber, in which it might fit, although that might be stretching it a bit as well. Perhaps he will speak in that debate as well.
Chris Stephens
I will be brief, having been on the Bill Committee. First, I should probably declare that I am a member of the Scottish local government pension scheme. I have always taken the view that a pension is deferred pay. In the past few weeks, university lecturers have taken industrial action because of the threats to their pension schemes; I have been very proud to visit their picket lines and offer my solidarity and support.
I wish to raise a couple of issues. I view new clause 1 as a Trojan horse. The main points that I want to raise are my support for the amendments tabled by my good friend the right hon. Member for Hayes and Harlington (John McDonnell), and the effects on employees and workers. In Committee, the Chief Secretary assured me that discussions were ongoing with trade unions to fix the issues. I hope that he will update the House on any discussions that have taken place since then and on the progress of those talks.
A basic principle that has been identified in relation to many of the amendments is that workers should not be penalised financially for mistakes that have been made in calculations by the Government or employers. It is a clear principle for many of us on the Opposition Benches that no worker should be penalised for such mistakes and that their pensions should not be affected. I therefore support the Opposition amendments in that regard.
Mr Simon Clarke
I thank all right hon. and hon. Members who have spoken today. I appreciate the constructive way in which all Opposition parties have handled the Bill. Today’s debate has focused on several important themes, which I will address in turn.
One central theme was the clarification requested by the hon. Member for Hampstead and Kilburn (Tulip Siddiq) and other Members about whether the estimated £17 billion cost of remedy will be included in future valuations of the cost control mechanism for unfunded schemes. The answer, definitively, is that it will not. The Government will reform the cost control mechanism to a reform scheme-only design for future valuations. I hope that that reassures the House.
Mr Clarke
Very briefly, but I am conscious of the need to make progress.
John McDonnell
I just need the Minister to say that it will be an employer cost, not a member cost.
Mr Clarke
The cost of remedy sits with the employer, namely the Exchequer.
John McDonnell
Let us be absolutely explicit. With regard to the cost control mechanism, is it the case that this will be not a member cost but an employer cost? Just nod, Minister: that is all you have to do.
Mr Clarke
I will ensure that it is on the record.
My right hon. Friend the Member for Newark (Robert Jenrick) raised the important issue of guidance for the local government pension scheme which will, in effect, prevent bodies from engaging in boycotts, divestment and sanctions activities. In our manifesto, we committed ourselves to stopping public bodies running their own direct or indirect boycotts, and the wider BDS movement. I am grateful to my right hon. Friend for the all the hard work that he has done to draw the House’s attention to this important issue. I also pay tribute to Lord Pickles for his work.
Mr Clarke
I am sorry, but I must make progress.
The Government have been paying particular attention to the arguments that my right hon. Friend has put forward, and I assure him that we take this issue very seriously.
The BDS movement has nothing to do with pensions and everything to do with politics. It has had the chilling effect of legitimising antisemitism among the hard left, leading to kosher food being taken from supermarket shelves, Jewish films being censored, and the disgusting spectacle of Jewish university student societies being threatened with bans.
Paula Barker
I thank the Minister. He has been very generous. Can he confirm that new clause 1 has nothing to do with BDS, a point to which you alluded, Madam Deputy Speaker?
Mr Clarke
On the contrary, it has everything to do with BDS, because, rather than promoting co-existence, debate and dialogue, it sows hatred and alienation. There is evidence of divisive BDS campaigns in public bodies, including too many Labour-led local authorities attempting to declare boycotts. Only this week we saw concerning, but sadly unsurprising, reports of a councillor in Wirral leading demands for Wirral’s pension committee to pass a BDS motion. Even under the leadership of the new Leader of the Opposition, Labour politicians continue to endorse the Palestine Solidarity Campaign and call for boycotts of Israel.
Andrew Percy
I thank the Minister for confirming that the new clause does indeed have everything to do with BDS—as it should, because it is an important contribution to making Jewish people in this country feel safe. I am afraid that we heard some embarrassing comments from Opposition Members earlier, featuring the false narrative of “Everything good is always on the left, and everything bad is always on the right.” As the Minister says, we see Labour activists and Labour councillors endorsing what is a fundamentally antisemitic campaign. I thank him for his words today, and I hope the Government will accept the new clause, because it is so important to fighting the scourge of antisemitism.
Mr Clarke
I thank my hon. Friend for what he has said, and I can confirm that we will be accepting the new clause. It will have the Government’s support this afternoon.
The hon. Member for Edinburgh West (Christine Jardine) raised a number of important points, but I will deal first with her new clause 4, which relates to fairness for members of public service pension schemes. This is also relevant to the point raised by the hon. Member for Hampstead and Kilburn.
Let me begin by reassuring the hon. Member for Edinburgh West that equal treatment and fairness for all members, including those with protected characteristics, remains a central tenet of the Bill. The Government have conducted a full equalities impact assessment of the Bill, which was published when it was introduced. In addition, when making the necessary changes in the scheme rules to deliver remedy, bodies will carry out any appropriate equalities analysis for their specific schemes, in compliance with the Equality Act 2010. Indeed, many schemes are currently concluding public consultations on the changes in scheme regulations to implement the prospective remedy. The Government intend that a similar exercise will take place when it comes to schemes making further changes in their scheme regulations to implement the retrospective remedy, prior to 1 October 2023.
The Bill also provides that, from 1 April 2022, all public service workers who remain in service will do so as members of the reformed schemes, which provide career average, or CARE, benefits. CARE schemes offer fairer outcomes to those who experience lower salary progression over the course of their careers. A number of women and those with other protected characteristics are likely to be better off under CARE schemes, on average. Moving on to guidance for members, I wholly agree that clear, accessible and accurate guidance—
Tulip Siddiq
I am grateful that the Minister is answering all the questions that I posed in my speech, but I want to go back to the question that my right hon. Friend the Member for Hayes and Harlington (John McDonnell) asked. The Minister has said that he will write to us. Can he write both to me and to my right hon. Friend, and can he be explicit that this will be not a member cost but an employer cost? Can he confirm that he will be explicit when he writes to us on that particular point?
Mr Clarke
The cost sits with both members and employers, but the liability rests with the Exchequer in relation to the £17 billion cost of remedy. That is how this sits. I will indeed commit to writing to clarify all these points, and I will write to the hon. Lady and the right hon. Gentleman.
Judicial diversity and recruitment were the next issues raised by the hon. Member for Edinburgh West. I emphasise that this is an important measure for ensuring that we deal with the covid backlog in our courts, which is why we need to look at raising the mandatory retirement age. We are conscious of the need to consider the wider issues around judicial diversity and to ensure that we have a judiciary that is truly representative of the public that it serves. The Ministry of Justice publishes annual official statistics on this issue that provide a detailed annual picture.
I would like to assure members that the potential impact of what is being done is small. Compared with retaining the current mandatory retirement age of 70, a higher retirement age is projected to result in a 1% to 3% decrease in diversity growth in the medium to long term. I emphasise the word “growth” there. Overall, judicial diversity is still forecast to improve, and this measure would not reduce diversity overall. There would be only a slight reduction in the trend growth, which is going in a positive direction. We remain committed to increasing judicial diversity, and we have just launched an ambitious new magistrates recruitment plan to bring in younger and more diverse candidates. The MOJ plans to recruit 1,000 judges a year over the next few years, and 4,000 magistrates over that period. There will be a lot of change to the make-up of the judiciary.
The so-called pensions trap—the losses incurred by public service pension scheme members due to the closure of the legacy schemes—has been discussed at length throughout the passage of the Bill. The new clauses tabled by the hon. Member for Hampstead and Kilburn (Tulip Siddiq) and the right hon. Member for Hayes and Harlington appear to be intended to require the Chancellor to devise a way to compensate scheme members with remediable service for any reduction in future pension benefits resulting from the prospective McCloud remedy legislated for in clause 80. As I have noted, it is important to stress that the Government must not take action that would be contrary to the intention of the Bill to remove the discrimination identified by the courts and to ensure that all members are treated equally from 1 April this year by accruing service regardless of their age.
The Government must also safeguard the purpose of the reforms proposed by Lord Hutton and ensure that public service pension schemes are put on a sustainable fiscal footing. The Independent Public Service Pensions Commission stated that
“allowing current members to continue to accrue further benefits in the present schemes for many decades would be unfair and inequitable to the new members coming behind them.”
Compensating or carving out members with remediable service for the difference in pension age between their legacy and reformed schemes would effectively leave a protected class of public service pension scheme members beyond 31 March 2022, which could perpetuate the discrimination identified by the courts or give rise to new discrimination. It is worth noting that the Home Office is looking at this issue as we speak and will respond to its full consultation, in which the issue has been considered at greater length. I look forward to seeing the results of its work.
I turn to the contribution from the right hon. Member for Hayes and Harlington on the reforms to the cost control mechanism. The cost control mechanism is designed to ensure a fair balance of risk between public service pension scheme members and taxpayers with respect to the costs of the schemes. These reforms resulted from recommendations by the Government Actuary, and the Government are seeking to implement them following a full public consultation process. They are the reformed scheme-only design and the economic check. The economic check is essential to ensure stability and consistency across the scheme. It is also important to improve the higher bar for benefit reductions or contribution increases if the country’s economic outlook changes.
On the point about the 25-year guarantee, the Government do not believe that these reforms breach that guarantee. The elements protected by the 25-year guarantee were set out in legislation, and the cost control mechanism is not included there. The Government are making these changes following a detailed review of the mechanism by the Government Actuary and a full and open consultation process.
Amendments 22 to 24, tabled by the right hon. Member for Hayes and Harlington and the hon. Member for Hampstead and Kilburn, seek to reverse two decisions. The first reflects the cost of remedies in the mechanism of the 2016 valuation, and the second prevents the waiving of any ceiling breaches of the 2016 valuations that may occur. As I have already noted, the cost control mechanism is designed both to protect the value of schemes to members and to protect the Exchequer from unforeseen costs. At each scheme valuation, the mechanism assesses the benefits that have accrued and are accruing to members, to determine whether future benefit levels or member contribution rates need to be adjusted to meet the costs of the scheme.
The Government are clear that the remedy, by giving eligible members a choice between two sets of benefits, will increase the value of schemes to members, and this increase in value has therefore rightly been included in the mechanism for the 2016 valuations. The Government have decided that it would be inappropriate to reduce member benefits based on a mechanism that may not be working as intended, and clause 93 will therefore ensure that no member’s benefits will be cut or contribution rates increased as a result of the 2016 valuations.
Amendment 23, which would delete clause 93, would therefore reverse a decision that will protect members and would lead to significant cuts to member benefits for any schemes that breach the ceiling of the 2016 valuations. It is therefore important that clause 93 is preserved.
I am grateful to all hon. and right hon. Member for their contributions. With the exception of new clause 1, I hope I have demonstrated the reasons why I cannot accept these new clauses and amendments, and I hope hon. and right hon. Members will agree not to press them to a vote.
Question put and agreed to.
New clause 7 accordingly read a Second time, and added to the Bill.
New Clause 1
Guidance to public service pension scheme managers on investment decisions
‘(1) The Public Service Pensions Act 2013 is amended in accordance with subsection (2).
(2) In schedule 3, paragraph 12(a), at end insert “including guidance or directions on investment decisions which it is not proper for the scheme manager to make in light of UK foreign and defence policy”.’—(Robert Jenrick.)
This new clause would enable the Secretary of State to issue guidance to those authorities that administer public sector pension schemes, including the local government pension scheme, that they may not make investment decisions that conflict with the UK’s foreign and defence policy.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Mr Simon Clarke
I beg to move, That the Bill be now read the Third time.
I would like to make a short statement about our involvement with the devolved Administrations. Officials worked closely and collaboratively with the devolved Administrations throughout the Bill’s passage, and I am pleased to report that the Scottish Government, the Welsh Senedd and the Northern Ireland Assembly have each passed a legislative consent motion. I am grateful for their continued engagement.
It has been a great pleasure to lead on the Bill’s progression through the House. I extend my thanks to hon. Members across the House for their engagement, particularly of course the members of the Public Bill Committee. This is an important Bill that consolidates and strengthens the legal framework for pensions across all our main public services—the NHS, the judiciary, the police, firefighters, the armed forces, teachers, local government and the civil service. The Bill will ensure that those who deliver our public services continue to receive guaranteed retirement benefits that are among the best available on a fair and equal basis.
The Bill also addresses the resourcing challenges facing the judiciary, recognising the unique constitutional role of judges. It is clear that we are agreed across the House about the principles of fairness and equal treatment for public servants. Furthermore, a number of important amendments have been made, most notably to the provisions that cater for local government workers, which I am pleased have enjoyed cross-party support.
I extend my thanks in particular to my right hon. Friend the Member for Newark (Robert Jenrick), my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the hon. Member for Hampstead and Kilburn (Tulip Siddiq), the right hon. Member for Hayes and Harlington (John McDonnell) and the hon. Member for Glenrothes (Peter Grant) for their detailed engagement throughout the Bill’s passage. I also convey my gratitude to the noble Lords in the other place, whose excellent contributions have helped ensure the Bill is as robust as possible.
Finally, I thank the Bill team, the Office of the Parliamentary Counsel, officials across Her Majesty’s Treasury, the Ministry of Justice, the Department for Levelling Up, Housing and Communities, all Government Departments with responsibilities for public service pension schemes, and the devolved Administrations for their extensive support. There is a lot of technical detail in the Bill, and the team’s guidance and expertise has been exemplary.
Sir Robert Buckland (South Swindon) (Con)
Will my right hon. Friend give way?
Sir Robert Buckland
On a point of technical detail, I do not wish to put my right hon. Friend on the spot, but can he assure me that early commencement provisions will be brought into effect with regard to the judicial retirement age matters? It is a matter of real public importance that we bring those measures into force as soon as possible, rather than waiting for the usual two-month gap between Royal Assent and them coming into effect? Can he give me that assurance?
Mr Clarke
Further to my opening speech, I can confirm that that is the case.
In conclusion, this Bill recommits to the principle of greater fairness between lower and higher earners and for the taxpayer, as well as the future sustainability and affordability of public service pensions. I am pleased to see the Bill reach Third Reading, and I am grateful to all Members for their contributions today.
Tulip Siddiq
I echo all the thanks that the Minister has given, and I thank him for meaningfully engaging with me on this topic. I thank the shadow Treasury team, who helped a lot, all the Clerks who helped, my hon. Friend the Member for Reading East (Matt Rodda), who gave me a lot of support throughout the Bill, and my hon. Friend the Member for Hammersmith (Andy Slaughter), who made a sensitive speech during a difficult time. I might not have agreed with everything that my right hon. Friend the Member for Hayes and Harlington (John McDonnell) said, but he made an extensive and important speech.
I hope that the Minister will reply to me in writing, being explicit about how the cost will be shouldered. This mistake is being rectified by the Government, which is why we support the Bill, but we still have some concerns about it, so we would like to hear explicitly from the Minister about how the costs will be managed and that they will not be pushed to any of the members. Finally, I thank all the public sector workers who have kept us safe through all the years, and especially during the pandemic.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Mr Toby Perkins (Chesterfield) (Lab)
On a point of order, Mr Deputy Speaker, the Government announced that they were doing a review of level 3 qualifications, with a view potentially to producing a list of level 3 qualifications that would no longer be funded. That list has not yet been produced, but the sector has the impression that it will be produced very soon. It is a matter of huge interest to many right hon. and hon. Members, so I wonder whether you or Mr Speaker have had any notification from the Government of their intention to come to this House and make a statement, and whether inquiries could be made to ensure that the list is not sneaked out at 5.30 pm on Friday, as has sometimes been the case, but is announced first to the House.
Mr Deputy Speaker (Mr Nigel Evans)
I thank the hon. Member for his point of order and his notice of it. I have been given no notification that there will be any statements today, but that could change tomorrow or in the rest of the week. Should that happen, the House will be informed in the usual way.
Louise Haigh (Sheffield, Heeley) (Lab)
On a point of order, Mr Deputy Speaker. The bus covid recovery funding will expire at the end of the financial year, and we have had no notification as to whether the Government intend to continue it. Tomorrow is the deadline by which operators will have to notify their local transport authorities if they intend to cut services as a result of that covid funding expiring, and operators are warning that it could lead to a reduction of a third in bus services. This time last year, the Prime Minister, with his “bus back better” strategy, promised great bus services for everyone, everywhere. Instead, we are looking at managed decline. Have you had any notification of a statement from the Secretary of State to reflect the urgency of the situation?
Mr Deputy Speaker
I thank the hon. Member for her point of order and her forward notice of it. Again, I have received no notification that there is going to be a statement today, but clearly that could change for the rest of the week. Fortunately, the Leader of the House is sitting in his place and will have heard both points of order, and I am sure he will be reflecting on them during the rest of the day.
Business of the House (Today)
Ordered,
That, at this day’s sitting, notwithstanding the provisions of Standing Order No. 16(1) (Proceedings under an Act or on European Union documents), proceedings on the motion in the name of James Cleverly relating to the Russia (Sanctions) (EU Exit) (Amendment) Regulations 2022 (SI, 2022, No. 123) shall be brought to a conclusion three hours after the commencement of proceedings on the motion for this Order; the Speaker shall then put the Question necessary to dispose of proceedings on that motion forthwith; such proceedings may be entered upon, though opposed, after the moment of interruption; and Standing Order No. 41A (Deferred divisions) shall not apply.—(Mark Spencer.)
Public Service Pensions and Judicial Offices Bill [HL]
Wednesday 9th March 2022
(3 years, 4 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Amendment Paper: HL Bill 118-I Marshalled List for Consideration of Commons Amendments - (8 Mar 2022)
Viscount Younger of Leckie
That this House do agree with the Commons in their Amendments 1 to 47.
(a) pensionable service under a Chapter 1 legacy scheme,
(b) pensionable service under a Chapter 1 new scheme that would have been pensionable service under a Chapter 1 legacy scheme but for the person’s failure to meet a condition relating to the person’s attainment of normal pension age, or another specified age, by a specified date, or
(c) excess teacher service.
The second condition is met if all of the service in question falls within paragraphs (a) to (c) (even if it does not all fall within only one of those paragraphs).”
(c) is, as a result of a local government contracting-out transfer, pensionable service under a pension scheme that offers pension arrangements that are broadly comparable with those offered to the person before the transfer.”
“(3A) In a case in which any of the person’s remediable service in the employment or office in question is excess teacher service, “the relevant Chapter 1 legacy scheme”, in relation to so much of the person’s remediable service as is excess teacher service, means the local government new scheme mentioned in section 98(2).”
“(da) provision about the benefits payable in respect of a child of a deceased member where—
the member has remediable service in an employment or office, and
the child is not living in the same household as an adult survivor of the member;”
“(db) provision about cases in which a person has remediable service in an employment or office any of which is excess teacher service;
(dc) provision about cases in which a person has remediable service in an employment or office and also has service in an employment or office as a teacher which—
(i) takes place in the period beginning with the day after the closing date and ending with 31 March 2022,
(ii) is pensionable service under a Chapter 1 new scheme, and
(iii) is not remediable service;”
“(dd) provision about cases in which a person has a partnership pension account;”
“(de) provision about cases in which a person is made redundant;”
““adult survivor”, in relation to a member of a Chapter 1 scheme who has remediable service, means a surviving spouse, civil partner or other adult who is entitled under the scheme to a pension determined (to any extent) by reference to the member’s remediable service;”
““child”, in relation to a member of a Chapter 1 scheme, means any individual who—
(a) is entitled to receive benefits under the scheme in their capacity as a child of the member, or
(b) would have been entitled to receive benefits under the scheme in that capacity on the assumption that any election under this Chapter was, or was not, made in respect of the member;”
““made redundant”: a reference to a person being “made redundant” includes, in relation to a member of the armed forces, a person becoming entitled to a redundancy payment under—
(a) Part 2 of the Armed Forces (Redundancy, Resettlement and Gratuity Earnings Schemes) (No 2) Order 2010 (S.I. 2010/ 832),
(b) the Armed Forces Redundancy Scheme Order 2006 (S.I. 2006/55), or
(c) the Armed Forces Redundancy Scheme Order 2020 (S.I. 2020/1298);”
“The second condition is met if all of the service in question falls within paragraphs (a) and (b) (even if it does not all fall within only one of those paragraphs).”
“Meaning of “remediable service”
(1) For the purposes of this Chapter any continuous period of service of a person in an employment or office is “remediable service” in that employment or office if the following four conditions are met.
(2) In this section “the service in question” means the service mentioned in subsection (1).
(3) The first condition is that the service in question takes place in the period—
(a) beginning with the day after the closing date, and
(b) ending with 31 March 2022 or, if earlier, the date on which the person attains legacy scheme normal pension age.
(4) The second condition is that the service in question is pensionable service under a local government new scheme (including where the service is excess teacher service that is so pensionable by virtue of section 2(1)).
(5) The third condition is that the person was, on 31 March 2012 or any earlier day, in pensionable service under—
(a) a Chapter 1 legacy scheme (within the meaning of Chapter 1),
(b) a judicial legacy scheme (within the meaning of Chapter 2), or
(c) a local government legacy scheme.
(6) The fourth condition is that there is no disqualifying gap in service falling within the period—
(a) beginning with the day after the most recent day in relation to which the third condition is met, and
(b) ending with the day before the first day of the service in question.
(7) In subsection (3)—
“the closing date” means—
(a) 31 March 2014 in relation to service which is pensionable service under regulations under section 7 of SA 1972 which relate to persons in England and Wales;
(b) 31 March 2015 in relation to service which is pensionable service under any other local government new scheme;
“legacy scheme normal pension age” means—
(a) in a case in which the person meets the third condition in relation to a local government legacy scheme, the person’s normal pension age under that scheme;
(b) otherwise, the age of 65.
(8) In subsection (6) “disqualifying gap in service” means a period longer than 5 years at no time during which is the person in service in an employment or office which—
(a) is pensionable service under—
(i) a Chapter 1 scheme (within the meaning of Chapter 1),
(ii) a judicial scheme (within the meaning of Chapter 2), or
(iii) a local government scheme,
(b) is, as a result of a Fair Deal transfer, pensionable service under a Fair Deal scheme, or
(c) is, as a result of a local government contracting-out transfer, pensionable service under a pension scheme that offers pension arrangements that are broadly comparable with those offered to the person before the transfer.”
“Power to pay final salary benefits
(1) Scheme regulations for a local government new scheme may make provision under which the benefits payable under the scheme, so far as they are determined by reference to a member’s remediable service in any employment or office, are final salary benefits.
(2) The reference in subsection (1) to remediable service includes—
(a) remediable service within the meaning of Chapter 1 that has been transferred in from a Chapter 1 scheme, and
(b) remediable service within the meaning of Chapter 2 that has been transferred in from a judicial scheme.
(3) Scheme regulations made by virtue of subsection (1) may, in particular, include provision under which final salary benefits are only payable under the scheme to or in respect of a person who has service in multiple employments or offices if—
(a) so much of the service as is otherwise pensionable under another local government scheme, or under a Chapter 1 scheme or a judicial scheme, is transferred in to the scheme, or
(b) the service is aggregated for the purposes of determining those benefits.
(4) Scheme regulations for a local government new scheme may make provision under which the benefits payable under the scheme, so far as they are determined by reference to a member’s final salary transferred-in service in any employment or office, are final salary benefits.
(5) For the purposes of subsection (4) a member’s service in an employment or office is “final salary transferred-in service” if—
(a) the service has been transferred in from another pension scheme, and
(b) before the transfer, the benefits payable under that other scheme, so far as determined by reference to the service, were final salary benefits.
(6) Except as provided by the preceding provisions of this section, scheme regulations for a local government new scheme may not make provision under which the benefits payable under the scheme that are determined by reference to a member’s pensionable service in an employment or office are final salary benefits.”
“Section (Power to pay final salary benefits): transitional provision
(1) Any provision of scheme regulations that—
(a) was, at any time before the coming into force of section (Power to pay final salary benefits)(1), made (or purportedly made) in relation to a local government new scheme under—
(i) section 18 of PSPA 2013 or section 18 of PSPA(NI) 2014 (restriction of existing pension schemes), or
(ii) any other enactment, and
(b) could have been made under section (Power to pay final salary benefits)(1) if it had been in force at that time,
is treated as having been made under section (Power to pay final salary benefits)(1).
(2) Section (Power to pay final salary benefits)(6) does not affect the continued operation of any scheme regulations made before the coming into force of that provision.”
“Pension credit members
(1) Scheme regulations for a local government new scheme may make provision about the benefits payable to or in respect of a relevant pension credit member and the corresponding pension debit member.
(2) In this section “relevant pension credit member”, in relation to a local government new scheme, means a member of the scheme who has rights under the scheme—
(a) which are attributable (directly or indirectly) to a pension credit, and
(b) the value of which was determined (to any extent) by reference to the value of benefits payable in respect of the remediable service in an employment or office of another member.
(3) In this section “the corresponding pension debit member”, in relation to a relevant pension credit member, means the member mentioned in subsection (2)(b).
(4) The provision that may be made by scheme regulations under this section includes, in particular—
(a) provision modifying any provision of this Chapter in its application to persons of a description specified in the regulations;
(b) provision corresponding to, or applying, any provision of this Chapter, with or without modifications.
(5) In this section—
“modifying” includes disapplying or supplementing (and cognate expressions are to be construed accordingly);
“pension debit” means a debit under section 29(1)(a) of WPRA 1999 or Article 26(1)(a) of WRP(NI)O 1999;
“pension credit” means a credit under section 29(1)(b) of WPRA 1999 or Article 26(1)(b) of WRP(NI)O 1999.”
“Further powers to make provision about special cases
(1) Scheme regulations for a local government new scheme may make further provision relating to a member who has remediable service in an employment or office.
(2) The provision that may be made under subsection (1) includes, in particular, provision about cases in which a person has remediable service in an employment or office any of which is excess teacher service.
(3) Scheme regulations for a local government new scheme may make provision about injury and compensation benefits payable under a relevant injury and compensation scheme to or in respect of a member who has remediable service in an employment or office.
(4) Provision made under subsection (3) may in particular be made by amending the relevant injury and compensation scheme.
(5) In subsections (3) and (4) and this subsection—
(a) “injury and compensation scheme” means a pension scheme that is listed in Schedule 6 to PSPA 2013 or Schedule 6 to PSPA(NI) 2014 (existing injury and compensation schemes);
(b) an injury and compensation scheme is “relevant”, in relation to a local government new scheme, if it is connected with the local government new scheme;
(c) a reference to “injury and compensation benefits” payable under an injury and compensation scheme is a reference to—
(i) in the case of an injury and compensation scheme in relation to which Schedule 6 to PSPA 2013 or Schedule 6 to PSPA(NI) 2014 specifies particular benefits, those benefits;
(ii) in the case of any other injury and compensation scheme, any benefits payable under the scheme.
(6) The provision that may be made by scheme regulations under this section includes, in particular—
(a) provision modifying any provision of this Chapter in its application to persons of a description specified in the regulations;
(b) provision corresponding to, or applying, any provision of this Chapter, with or without modifications.
(7) In this section “modifying” includes disapplying or supplementing (and cognate expressions are to be construed accordingly).”
“Power to pay compensation
(1) The scheme manager for a local government new scheme may pay amounts by way of compensation in respect of compensatable losses incurred by members or, in the case of deceased members, their personal representatives.
(2) Scheme regulations for a local government new scheme may make provision under which an employer in relation to the scheme is required to reimburse the scheme manager for amounts paid under subsection (1).
(3) For the purposes of this section a loss incurred by a member, or by a member’s personal representatives, is “compensatable” if and to the extent that—
(a) either of the following conditions is met, and
(b) the loss is of a description specified in Treasury directions.
(4) The first condition is that the loss is attributable to, or is reasonably regarded as attributable to, a relevant breach of a non-discrimination rule.
(5) The second condition is that the loss is attributable to the application of any provision of, or made under, this Chapter.
(6) In this section (subject to subsection (8)) “loss” includes a loss of any kind including, in particular, a Part 4 tax loss.
(7) In this section “Part 4 tax loss”, in relation to a member, means a loss arising as a result of the member—
(a) incurring a charge, or incurring an increased charge, under Part 4 of FA 2004, or
(b) not being entitled to a relief, or being entitled to less relief, under that Part of that Act.
(8) In this section “loss” does not include an amount that is payable under this Chapter or under regulations made by virtue of this Chapter.
(9) In this section “non-discrimination rule” means a rule that is, or at any time was, included in a local government scheme by virtue of—
(a) section 61 of EA 2010, or
(b) paragraph 2 of Schedule 1 to EEAR(NI) 2006.
(10) For the purposes of this section a breach of a non-discrimination rule is “relevant” if it arises from the application of a provision of scheme regulations made before 1 April 2022 under which the benefits payable under the scheme that are determined by reference to a member’s pensionable service in an employment or office are final salary benefits.
(11) Subsection (1) does not confer power to pay amounts by way of compensation in respect of compensatable losses so far as—
(a) any person has already received amounts by way of compensation in respect of them, or
(b) amounts that any person has paid the scheme have been reduced by amounts in respect of them,
whether pursuant to an order of a court or tribunal or otherwise.”
“Indirect compensation
(1) Scheme regulations for a local government new scheme may make provision under which, where a member has incurred a compensatable loss that is a Part 4 tax loss—
(a) the member is not paid an amount under section (Power to pay compensation) by way of compensation in respect of the loss, and
(b) the member is instead paid such additional benefits under the scheme as may be determined in accordance with the regulations.
(2) In this section “compensatable loss” and “Part 4 tax loss” have the same meaning as in section (Power to pay compensation).”
“Interest and process
(1) Scheme regulations for a local government new scheme may make provision—
(a) under which interest is required to be calculated and paid on relevant amounts;
(b) about the process by which relevant amounts (and any interest on them) are to be paid.
(2) Scheme regulations made by virtue of subsection (1)(b) may, in particular, include provision—
(a) about when relevant amounts (and any interest on them) are to be paid (including provision under which they are paid in instalments);
(b) under which relevant amounts (and any interest on them) may be paid only on the making of an application;
(c) conferring rights of appeal against decisions taken under the regulations.
(3) In this section “relevant amounts” means any amounts that are payable by the scheme to a person under or by virtue of this Chapter.”
“Treasury directions
(1) The powers mentioned in subsection (2) must be exercised in accordance with Treasury directions.
(2) The powers are—
(a) the power to make scheme regulations by virtue of section (Pension credit members) (pension credit members) and any powers exercisable by virtue of such regulations;
(b) the power to make scheme regulations by virtue of section (Further powers to make provision about special cases) (further powers to make provision about special cases) and any powers exercisable by virtue of such regulations;
(c) the power of a scheme manager under section (Power to pay compensation)(1) (power to pay compensation);
(d) the power to make scheme regulations by virtue of section (Power to pay compensation)(2) (power to require employer to reimburse compensation paid by scheme manager) and any powers exercisable by virtue of such regulations;
(e) the power to make scheme regulations by virtue of section (Indirect compensation)(1) (indirect compensation) and any powers exercisable by virtue of such regulations;
(f) the power to make scheme regulations by virtue of section (Interest and process)(1) (interest and process) and any powers exercisable by virtue of such regulations.
(3) Treasury directions under this section may provide for amounts that are to be paid by a scheme in relation to a member to be determined—
(a) taking into account the particular circumstances of the member and (if different) the person to whom the amount is to be paid, or
(b) without taking into account any or all of the particular circumstances of that person or those persons.
(4) Treasury directions under this section that relate to the calculation and payment of interest, and variations and revocations of such directions, may only be made after consultation with the Government Actuary.
(5) For the definition of “Treasury directions”, see section (Interpretation of Chapter)(1).”
“Interpretation of Chapter
(1) In this Chapter—
“Chapter 1 scheme” has the same meaning as in Chapter 1; “final salary benefits” has the meaning given by subsection (2); “judicial scheme” has the same meaning as in Chapter 2;
“local government legacy scheme” has the meaning given by section 79(3);
“local government new scheme” has the meaning given by section 79(2);
“local government scheme” has the meaning given by section 79(1); “scheme regulations”—
(a) in relation to a local government new scheme within section 79(2)(a) has the same meaning as in PSPA 2013 (see section 1(4) of that Act);
(b) in relation to a local government new scheme within section 79(2)(b) has the same meaning as in PSPA(NI) 2014 (see section 1(4) of that Act);
“Treasury directions” means—
(a) in relation to a local government scheme within section 79(2)(a) or (3)(a), directions given by the Treasury;
(b) in relation to a local government scheme within section 79(2)(b) or (3)(b), directions given by the Department of Finance in Northern Ireland.
(2) For the purposes of this Chapter, benefits payable under a pension scheme to or in respect of a member are “final salary benefits” if they are determined by reference to the member’s pensionable earnings, or highest, average or representative pensionable earnings, in a specified period ending at, or defined by reference to—
(a) the time when the member’s pensionable service in relation to the scheme ends, or
(b) the time when the member attains normal pension age under a local government legacy scheme.
(3) Where—
(a) a member of a pension scheme has service in multiple employments or offices that is pensionable service under the scheme, and
(b) the service is aggregated for the purpose of determining the amount of any benefit under the scheme,
the service is treated for the purposes of this Chapter as service in a single employment or office (and references to the employment or office in relation to the service are to be read accordingly).”
Viscount Younger of Leckie (Con)
My Lords, with the leave of the House, I will also speak to the other amendments and the Motions in the name of the noble Lord, Lord Davies of Brixton. Before I turn to the Commons amendments, I will take a moment to remind your Lordships of what the Public Service Pensions and Judicial Offices Bill will achieve. The Bill ensures that those who deliver our valued public services continue to receive guaranteed benefits in retirement that are among the best available, on a fair and equal basis. It is also vital in addressing the resourcing challenges facing the judiciary, recognising the unique constitutional role of judges. As has been acknowledged throughout the Bill’s passage, this is a complex and technical matter. The Bill covers more than 40 schemes, each of which has its own individual layers of detail and complexity.
Since the Bill’s introduction, the Government have continued to work closely with each of the public service pension schemes, with stakeholders and with departments to check and re-check the Bill to ensure that it will deliver our commitments to remove the discrimination and offer a complete and effective remedy. This has been crucial and has led to a number of refinements being made to the Bill during its stages in the other place.
I recognise that a large volume of amendments is being considered today but I hope noble Lords will agree that the Bill returns to this Chamber in an even stronger position than when it left. I therefore propose that the House agree with the Commons in its Amendments 1 to 81. The House will, I hope, be pleased to hear that I will not set out the detail of each and every amendment, but I hope that your Lordships will find it helpful if I briefly explain the themes that they address. I will of course be happy to turn to specific amendments if your Lordships have any questions they would like to ask.
The first theme is reforms to the cost control mechanism, which relates to Amendments 48, 49 and 52. Your Lordships may recall that the cost control mechanism is designed to ensure a fair balance of risk between public service pension scheme members and taxpayers with respect to the costs of these schemes. The Government asked the Government Actuary to review the cost control mechanism after the provisional results of the 2016 valuations suggested that the mechanism was too volatile and not operating in line with its objectives. Following publication of the final report in June 2021, the Government consulted on three of the recommendations and published their response in October 2021. These reforms will be implemented from the 2020 valuations onwards.
Commons Amendment 48 would implement the framework for two of these three reforms: the reformed scheme-only design and the economic check. I will take each of these in turn. The reformed scheme-only design means that legacy scheme costs are excluded from the mechanism. This would make it more stable and reduce intergenerational unfairness because comparatively younger members’ benefits or contributions will not change based on the cost of legacy schemes they had little, or no, access to. Although this transfers the risk associated with legacy scheme costs to the Exchequer, it ensures consistency between the set of benefits being assessed and the set of benefits potentially being adjusted.
As the Government Actuary’s report makes clear, it does not seem possible for the mechanism to be able to protect the taxpayer unless it considers the wider economic outlook. The economic check—the second reform—will therefore ensure consistency between member benefit or contribution changes and changes in the wider economic outlook. There will be a higher bar for benefit reductions or contribution increases if the country’s long-term economic outlook has improved. This will equally apply to benefit increases or contribution reductions if the long-term economic outlook has worsened.
Therefore, the economic check will operate symmetrically for the benefit of both members and taxpayers. It will operate in a transparently and be linked to an objective and independent measure of expected long-term earnings and GDP growth from the OBR. Given that the economic check can only offset or prevent breaches, not cause them, the likelihood of changes to member benefits or contributions will decline. The reforms will make the mechanism more stable and allow it to operate more in line with its objectives, giving members greater certainty with respect to their retirement incomes.
The second theme concerns amendments relating to the local government workforce, where a number of amendments to Chapter 3 of Part 1 were brought forward by the Government in the Commons to ensure a full and robust remedy for local government workers; for reference, these are Commons Amendments 2, 28 to 30, 36 to 47, 50, 51, 55 to 60, 62, 64, 65, 72 and 75 to 77. The amendments are largely technical, including a significant number designed to ensure that many of the complexities relating to other public service pension schemes that have already been addressed in the Bill are also addressed in local government.
The Government are also making an important change to align the eligibility criteria for protection in local government with other public service pension schemes. Under the amended approach, members who were in pensionable service on or before 31 March 2012 would be in scope of remedy if they leave local government and return within five years, as well as meeting qualifying criteria.
I turn next to a single amendment that concerns a change to regulatory procedure for implementing regulations with respect to the reformed judicial pension scheme. Commons Amendment 61 will simply allow the regulations to be made under the “made affirmative” procedure instead of the draft affirmative, which is the usual process for judicial scheme regulations. This is simply a matter of timing. As the draft affirmative procedure could take four to six weeks, we must rely on the “made affirmative” procedure in order to launch the scheme on 1 April 2022. The change ensures that the reformed pension scheme is in place for all judges on 1 April and that there will be no gap in judicial pensions arrangements. Allow me to reassure the House that the “made affirmative” procedure means that Parliament will still get to scrutinise and debate the draft Judicial Pension Scheme Regulations 2022. This scrutiny is important, given the unique constitutional role of the judiciary. Furthermore, the power is narrowly drawn—it can only be exercised for regulations made within 28 days of Royal Assent and will not apply to any future amendments to judicial pension schemes.
The Ministry of Justice has carried out extensive consultation both on the principles of the new scheme and the draft Judicial Pension Scheme Regulations 2022. This has demonstrated broad support for the new scheme, which provides significantly improved benefits for all members of the judiciary compared to the 2015 scheme. There is agreement that the scheme should help address the recruitment and retention issues in the judiciary, which are considered to be primarily due to the introduction of the 2015 scheme.
I turn next to the issue of guidance on investment decisions for the Local Government Pension Scheme, which, as your Lordships may know, is different to the other main public service pension schemes as it is funded rather than unfunded. My right honourable friend Robert Jenrick, the Member for Newark, in the other place proposed Commons Amendment 54, which would expand existing powers in the Public Service Pensions Act 2013 to allow the responsible authority of a public service pension scheme to issue guidance or directions to the scheme managers to cover investment decisions that it is not proper for the scheme manager to take in light of the UK’s foreign and defence policy.
The Government support that amendment, which is in line with the Government’s manifesto commitments to stopping public bodies from pursuing their own direct or indirect boycotts, divestment and sanctions campaigns against foreign countries, known as BDS. Rather than promoting coexistence, debate and dialogue, these boycotts undermine community cohesion. There is evidence of divisive BDS campaigns in public bodies, including local authorities attempting to declare boycotts. Administering authorities can of course make decisions based on sound environmental, social and governance—so-called ESG—considerations. For example, funds may well choose to not invest based on legitimate concerns over a company’s polluting activities or its poor governance. However, what is clearly inappropriate is for a fund to adopt divisive BDS policies that are inconsistent with UK foreign policy. Sanctions should be determined by the UK Government alone. It is not for local authorities or public bodies to be pursuing their own foreign policy agendas.
Your Lordships may be aware that the Government intend to bring forward wider legislation on BDS, when parliamentary time allows, to ban public bodies from imposing such boycotts and divestments. This will of course be subject to scrutiny in both Houses in the usual way. This amendment signals the Government’s intent and provides the powers for the responsible authority to issue guidance or directions on this matter. It is important to note that the amendment would place no immediate duty on scheme managers to take any such investment or divestment decisions.
If the responsible authority were to issue guidance or directions, this would be subject to the usual 12-week consultation. I hope that this gives the House reassurance that the devising of any parameters related to this amendment would involve extensive engagement with the LGPS community over a number of months, during which time all views and concerns would be considered, so as to ensure they do not inadvertently restrict proper account of ESG matters.
Finally, I will cover the remaining amendments—Amendments 1, 3 to 13, 15 to 21, 25, 26, 31 to 35, 53, 63, 66 to 71, 73 and 79 to 81, which are minor and technical. These amendments are for clarification and are primarily to ensure that the Bill offers a comprehensive pensions remedy for eligible members in particular circumstances or special cases. For example, Amendments 15, 19 and 20 ensure that where a member has died and a child pension is already in payment which would be impacted by a decision taken by someone outside the child’s household, schemes have the powers to make regulations to allow that pension to be protected. A further example under this theme is in Commons Amendments 79 and 81, which change the reference to the Special Educational Needs Tribunal for Wales to the Education Tribunal for Wales, as the tribunal was renamed during the passage of the Bill.
Lord Davies of Brixton (Lab)
My Lords, while I do not have a current interest to declare, it would be appropriate for me to mention that, until last August, I was a consultant to a number of trade unions, advising them in this specific area. It appears in the register of interests, but I no longer undertake that work. I thank the Minister for providing more background to the legislation. He has been extremely helpful in ensuring that the fullest information is available on the changes being made at this stage.
However, it is worth recalling that, when the Bill was introduced last July, it dealt with two main issues: first and principally, it provided the remedy for the Government’s unlawful age discrimination in the Public Service Pensions Act 2013; secondly, it established a one-of-a-kind pension scheme for judges and, as a bit of an add-on, increased their retirement age. That is how it left your Lordships’ House.
In the Commons, two significant new issues were added. In Committee, amendments were introduced that made significant changes to the cost control mechanism that applies to public service pension schemes—this is Amendment 48—and then, on Report, Amendment 54 was introduced, which will allow the Secretary of State to issue directions to the trustees of local government pension schemes about how they invest their members’ money. It must be stressed that both these issues are completely new and have no direct connection with what was in the Bill when we considered it previously. Therefore, it is entirely proper—indeed, necessary—that we should give both amendments adequate consideration. I will argue that they are both objectionable.
I will come back to local government pension schemes, but I start with Amendment 48, which provides for significant changes in the cost control mechanism. This is complicated stuff and time is limited, and I am sure that many noble Lords want to get on with subsequent business, but the Government need to rethink their approach—hence the Motions in my name. The key change to the mechanism proposed by the Government is the addition of what is described as an “economic test”. This is completely new; it constitutes a significant change to the mechanism and is clearly outside the repeatedly given guarantees that there would be a 25-year stable regime to administer public service pensions.
Whatever was decided back in 2011 was meant to remain for a generation, and repeated promises were made that there would be no surprises. It is important to understand that these promises went beyond what was ultimately included in the subsequent legislation. For example, following the negotiations that took place on the reforms, the then Chief Secretary to the Treasury, Danny Alexander, said that reform along the lines the Government had proposed could endure for 25 years:
“It will be a sustainable deal that will endure for at least 25 years”.—[Official Report, Commons, 2/11/11; col. 929.]
In the same vein, the Minister for the Cabinet Office, the then Francis Maude MP, gave a guarantee that
“outside of the scheme designs parameters”
there would be
“no further reform for the next 25 years.”—[Official Report, Commons, 20/12/11; col. 151WS.]
This proposal, the introduction of the economic test, is a clear breach of the commitment given by the Government in 2011. The agreement reached then was difficult for many unions and members to accept, as it amounted to public servants paying more, working more and getting less, but unions engaged in the negotiations in good faith and most accepted the resulting deal. The cost-control mechanism set out at that time was a key part of that arrangement.
From the hard information we have been given so far about the economic test, it gives the appearance of being designed to allow the Government to override the results of the cost-control mechanism in the event of what is termed a downward breach of the cost cap. A downward breach is when the value of members’ benefits falls by a significant amount—by a tenth or more, roughly speaking. Such a fall in the value of members’ benefits can arise from a combination of factors, but principally from a reduction in longevity compared with what was expected or from lower rates of inflation, to which benefit increases are linked.
The situation is that the value of members’ benefits might fall significantly and, consequently, they are entitled to an offsetting increase in their benefits to restore their value. But with this amendment the Government are given the power to cancel the increase on a basis that so far is ill defined. The Government and the Minister emphasised the potential for the economic check to be used to override an upward breach and stop the consequent cuts in members’ benefits, if the existing benefits are considered affordable.
To summarise, on the one hand, when growth in the economy is greater than expected, members will not have to suffer cuts in benefits. On the other hand, if economic growth is less than expected, members will not enjoy increases in benefits to which they would otherwise have been entitled. The problem is that it introduces a large degree of subjectivity and potential for political considerations to influence what should be a transparent and objective process. This need for objectivity is only increased by the mistrust generated by the Government’s response to the initial 2016 valuations of public service schemes.
The Minister in the Commons said that the cost-control mechanism
“will operate in a transparent way and be linked to an objective and independent measure of expected long-term earnings and GDP growth from the Office for Budget Responsibility”.—[Official Report, Commons, Public Service Pensions and Judicial Offices Bill Committee, 27/1/22; col. 33.]
But we have no idea in any detail how this will operate. We have no idea how transparent and open to debate it will be.
The detail will be set out in Treasury directions, which never come before this House, let alone the Commons. Treasury directions are not like delegated legislation. They are made by the Government with no form of accountability, so the Government will effectively be able to tear up the cost-control mechanism that unions were promised would last 25 years. That is why I believe Treasury directions are unsuitable for something so significant that will affect the terms of employment of our public sector workers.
The Minister needs to look again at how to restore trust and confidence in public service pensions in future without resiling from the promises given 10 years ago. At the very least, will the Minister spell out for the House in more detail how the Government propose to get from the figures provided by the Office for Budget Responsibility to the ultimate decision not to proceed with increases to which members are entitled?
Having addressed the issue of Amendment 48, I will shift gear somewhat and move on to Amendment 54. I am opposed to the new clause, which was introduced in the Commons on Report—a very late stage of the Bill’s progress through the Commons. It gives the Secretary of State the power to issue guidance or directions to authorities that administer public sector pension schemes that would ban them from taking investment decisions that conflict with the UK’s foreign and defence policy. In practice, as has been explained, this affects only the Local Government Pension Scheme, as it is the only significant public sector pension scheme that has investments.
The new clause would reverse the decision of the Supreme Court in the case involving the Palestinian Solidarity Campaign. The full judgment is worth reading as it sets out the argument against ministerial involvement in trustee decisions with force and clarity. The court found that the Secretary of State was wrong to claim that the Local Government Pension Scheme administrators were part of the machinery of the state. This claim fails to recognise that the administrators have duties which, at a practical level, are similar to those of trustees and that they consider themselves as quasi-trustees who should act in members’ best interests. The court also found the Secretary of State’s claim that contributions to the scheme are ultimately funded by the taxpayer equally misleading, as the fund represents the contributing employees’ money, not state money.
The proponents of the new clause tried to make BDS the issue, but it is actually about government overreach. The Supreme Court ruled that the power of the Secretary of State to issue guidance to local authorities has to respect their primary responsibility as quasi-trustees of the fund. The Secretary of State was not entitled, therefore, to make authorities give effect to his own policies in preference to those that they themselves thought it right to adopt in fulfilment of their fiduciary duties.
I want to make it clear that I do not want to be thought of as simply wishing to dodge the issue of BDS. I would welcome a debate on BDS, but that is not what we are discussing here today. This amendment does not mention BDS and potentially goes much wider, with a potential impact on the whole environmental, social and governance agenda.
The House will be aware that there is general support for initiatives that help pension schemes with assessing ESG-related risks. Indeed, the Government have enacted legislation that requires schemes to consider ESG objectives. It is now accepted that pension funds’ fiduciary responsibilities to members, which prioritise generating investment returns, permit scope to allow the removal of investments on non-economic grounds if they do not materially harm investment fulfilments.
It should also be understood that the Local Government Pension Scheme advisory board for England and Wales has produced guidance on responsible investment and provided investment decision-makers with a range of information, case studies and tools to help them meet the challenges involved. This guidance should be sufficient, and it is not necessary, therefore, to consider further legislative intervention in the operation of their investments or changes to the long-standing law in this area.
I understand that the Pensions and Lifetime Savings Association—the body that represents workplace pension schemes, including the Local Government Pension Scheme—has written to the Treasury to urge the Government to give more time and thought to how this would work in practice before it is adopted into law. We know, as the Minister has explained, that the Government are also considering more widely what role investment funds can play, particularly in promoting local investment, as part of their levelling-up agenda.
I have three more points. First, it should be recognised that in the context of the Local Government Pension Scheme, investment decisions have a potential impact on the contributions paid by employers and members of the scheme. Decisions made to align with government policies may result in additional costs to local government employers and employees, and to the many private sector operations included in their schemes.
Secondly, there is some doubt as to whether the amendment in its current form will work in the way that is intended. It fails to resolve the potential conflict between the Secretary of State’s directions and the trustees’ continuing duties to their members. It calls into question the relationship between the power of the state over individual property rights. At the very least, there is a question about interference with rights under the European Convention on Human Rights.
Baroness Deech (CB)
My Lords, let there be no obfuscation. We know what local authorities have already been trying in relation to BDS. We should be clear that the boycott which the noble Lord, Lord Davies, is anxious to facilitate is aimed at one state only. Local authorities have not been trying to divest from China, Myanmar, North Korea, nor even Russia, but only one state—Israel. The BDS movement is intended to delegitimise Israel, and ultimately destroy the state. Singling out Israel for boycott is out of all proportion to other states in this troubled world, and it is anti-Semitic. That is because it applies double standards and denies the Jewish people own right to self-determination, as defined in the IHRA definition.
The noble Lord, Lord Davies, is also reckless as to the interests of public pension holders, who, if asked, would not want to be drawn into a Middle East conflict and are likely to wish to continue to enjoy the fruits of investment in Israeli technology and medical products, not to mention technology that goes into iPads, iPhones, electric car batteries, and other important everyday products. BDS almost always equates to anti-Semitism, which is why Sir Keir Starmer has come out against it and continues his efforts to rid the Labour Party of the anti-Semitism found to be present in it by the EHRC. It does not help the peace process; BDS fuels a rise in anti-Semitic incidents, and the growing number of assaults on Jews and Jewish community buildings. We cannot allow local authorities to make flag-waving foreign policy decisions, bringing their communities into conflicts which are not relevant. Do we want local government pensions scheme investing in Russia? There is no reason why government policies should not be determinative of this.
Bearing in mind our discussions this afternoon, in the Second World War, over 1 million Jews died in Ukraine. Today, Israel has taken in thousands of refugees from Ukraine, Jewish and non-Jewish. Never again will persecuted Jews have no safe place to go, for Israel is the haven for them and the home for survivors of the Holocaust. This is the moral choice that faces your Lordships in relation to Amendment 54A. It is clear that the amendment of the noble Lord, Lord Davies, is not it.
Baroness Sheehan (LD)
My Lords, I speak at this stage of the Bill because Commons Amendment 54 was tabled so very late on Report in the Commons, after it had already been through this House where it started. How extraordinary it is that an amendment with such potentially wide-ranging impact should have been tabled so that no meaningful scrutiny was possible, with so little notice that the local government pension scheme advisory board was only able to publish its consent after the amendment was passed in the other place.
The concerns the amendment raises are substantial. They go to the heart of who takes the decision on how an individual’s money is invested. Should it be the Government, or should it be the representatives of the people whose money is being invested, which in this case would be the scheme administrators who fulfil the same functions as pension fund trustees? The crux of Amendment 54 is that it is the Government’s money, and the Government should be the final arbiter of the decision. However, when that was tested in 2020, the Supreme Court disagreed and ruled against that contention, asserting that the funds of members of public centre pension schemes belong to the members. It is not public money.
Amendment 54 from the Government seeks in effect to negate that decision. If it were to become law, the Government could issue guidance or directions—and I quote from the explanatory guidance—that
“public sector pension schemes, including the local government pension scheme … may not make investment decisions that conflict with the UK’s foreign and defence policy.”
The crucial decision of who will make the divestment decisions based on ESG and ethical considerations, if Amendment 54 were in place, becomes more blurred.
Some examples may help to illustrate the frictions that could arise. What is happening in Ukraine is uppermost in all our minds. This is not about anti-Semitism; this is about humanitarian concerns. That is why those decisions are taken. What is happening in Ukraine is something we all care about enormously. Many people are outraged by the Russian regime’s callous disregard for innocent civilians who dare to resist their advance. Suppose an LGPS scheme decided to divest from a Russian-owned organisation that is not on the sanctions list—this was the situation not so long ago with Gazprom —the existence of Amendment 54 on the statute book could have deterred that scheme. That, in effect, would be its consequence, given its vague wording and potentially broad application.
Local councils should have a duty to invest ethically, and they should be able to do so unequivocally in alignment with the UN guiding principles on business and human rights. If what is in those principles are not clear to any noble Lords in the Chamber, perhaps they should Google it. It speaks to a very specific example. In areas of the world where states are in breach of international law with clearly documented and verified violations of the human rights of civilian populations, such as is occurring on a regular and sustained basis in the occupied Palestinian territory, local authorities should be able to exercise their ethical judgment and divest from companies that produce and deal in goods from the illegal Israeli settlements in Palestinian territories. However, through Amendment 54, the Government could mandate that if they were to do so, they would be in conflict with the UK’s foreign and defence policy. That cannot be right.
On another issue, fund administrators also have a responsibility to invest in alignment with domestic legislation, such as meeting our net-zero target by 2050, and with international agreements, such as the Glasgow climate accord, agreed at COP 26 just last year. It is not just a responsibility to safeguard environmental and natural assets that is at stake: ultimately, it is the fiduciary duty of fund managers to act in the financial interests of their members.
In 2020, in his annual letter to CEOs, Larry Fink, CEO of BlackRock, the world’s largest assets manager with $10 trillion of assets under management, stated that
“climate risk is investment risk.”
Mark Carney, too, has warned that continued investments in fossil fuels risks write-offs and stranded assets. Local authorities must be able to divest from sources of oil, gas and coal wherever in the world they happen to be, regardless of whether that decision is in alignment with the Government’s foreign and defence policy. Not only must local authorities be able to meet their ESG requirement, they must also be able to fulfil their fiduciary duty. This amendment will hamper their ability to do both, and it should not be included in this Bill.
Baroness Altmann (Con)
My Lords, I will address both amendments from the noble Lord, Lord Davies, with whom I so often wholly agree on pension matters; but I am afraid that, in these instances, I find myself in disagreement.
As regards Amendment 48, I would like to make it clear that I support both the amendments that were passed in the Commons. I also believe that public sector workers deserve good pensions. They have good pensions. This stems from the changes that were made in the Hutton review in 2011. I confess that I was astonished at the time that a 25-year settlement seemed to have been agreed in the context of defined benefit pensions, for which costs can change so dramatically in that kind of timeframe. Indeed, employers have found that the costs have significantly increased.
In 2010 or so, the cost of providing a standard public sector pension would have been, perhaps, between 30% and 40% of salary. Subsequent to that, the costs have risen to at least 40% to 50% of salary, if not more than that. So, in effect, there has been a significant pay increase—albeit in deferred pay—for local government workers and public sector workers in general.
The 2016 valuation, based on various assumptions, also does not necessarily mean that the costs at the time would be the ones that are experienced today. Were a valuation to be conducted, say, three years later, four years later or five years later, there would be a significant increase in cost, but by relying wholly on the 2016 valuation and not factoring in the judgments of the courts in terms of the transitional protections agreed, it would appear that the workforce should have increased pension offers, which would subsequently need to be potentially reversed under this economic test.
Part of the problem stems from the expectation—which is wholly unrealistic—that there can be a 25-year guarantee for the kind of defined benefit pensions that are underwritten by taxpayers. That is also an important consideration because local government pension schemes do not belong to the Pension Protection Fund. The benefits promised to the workforce are underwritten by what are called employers, but they are actually taxpayers across the whole country, whether it is council tax payers or ultimately general taxpayers. Given the fiscal situation that we are currently in, and given the changes in the fiscal situation that can accrue, I believe that there is clearly a government interest and a taxpayer interest in the delivery of the benefits of these schemes. It is not just individuals’ money; it belongs to all of us, because we underwrite the full value of all public sector pensions, including the LGPS—which is not, as I say, part of the Pension Protection Fund, so there is no other underwriting available.
Lord Macdonald of River Glaven (CB)
My Lords, I entirely agree with the noble Baronesses, Lady Deech and Lady Altmann, that BDS is a discriminatory and racist movement whose object is the destruction of the state of Israel, and unmistakably so. However, I do not agree with them that that is a reason in itself for supporting Amendment 54. For all the reasons articulated by the noble Baroness, Lady Sheehan, my view is that this amendment represents overreach by the Government and has hardly received the sort of scrutiny that such an important measure clearly requires.
Baroness Kramer (LD)
My Lords, I had not intended to speak in this debate except to say a few words on the cost control amendments, at the request of my noble friend Lady Janke, who is leading for us on this issue. I shall now say very little on cost control, except that I am very much in the same camp as the noble Lord, Lord Davies.
My answer to the noble Baroness, Lady Altmann, is that if the Government decide that a commitment they made to a 25-year agreement is one that they no longer wish to keep, they should reopen the negotiations, not turn to Parliament in the late stages of the passage of a Bill and take for themselves powers to simply override the commitment that they once made. This was supposed, from a public pensions perspective, to be a Bill that simply corrected unlawful parts of the structure that the Government had entered into that were struck down by the courts in the McCloud judgment. The Government used that as an opportunity to go far beyond that.
I have problems with the cost control mechanism altogether, because it basically says that the mistakes the Government made need to be paid for by the scheme members as a whole: we will correct the injustice to a particular group, but the cost of that will be picked up by the other pensioners in the scheme. Now the Government have essentially said that if they mismanage the economy, that cost needs to be picked up by the members in the scheme as well. At the very least, they should have gone back and negotiated with the parties with whom the original arrangement was structured.
I shall now speak to the other amendment, partly because of a word used by the noble Baronesses, Lady Deech and Lady Altmann: “anti-Semitism”. When I read Amendment 54, it is a direction—I think the Minister tried to emphasise that it is guidance, but it is not guidance, it is a direction, and it says that very clearly in the amendment. I was told that various people were very concerned not to vote against it in the Commons because they were afraid that they would be labelled anti-Semitic. I thought, “Nonsense, not in a Parliament like this, not among people of the standing we have in the House of Commons and the House of Lords.” Yet, I heard very clearly from the noble Baroness, Lady Deech, the notion that opposing the amendment is anti-Semitic. I oppose it, and I dare her ever to say that I am anti-Semitic.
When I see those crowds of refugees coming out of Ukraine, they are to me an evocation of my grandparents, my aunts, my uncles and my cousins who were taken to concentration camps or as slave labour for the Hungarian army on the Russian front. In every political campaign I have waged, I have been attacked for being a Jew. In the most striking attack, a physical attack on my son and on me with eggs and flour, we had to be barricaded into a room and rescued by riot police. I dare the noble Baroness to label me anti-Semitic, but I oppose that amendment, and precisely for the reason that the noble Lord, Lord Macdonald, gave: this is total overreach. Israel and that issue is the excuse.
I look at the actions of the Government in so many ways. When I look at the powers they have taken away from local government, essentially trying to reconstruct it just as an agency of central government departments; when I look at what happens in this House, with skeleton Bills and Henry VIII clauses; when I look at the way that powers that came from the European Union were transferred directly to regulators, becoming, in effect, no longer either visible or, certainly, accountable, I see a constant shift of a central Government that feels they have the right to reach in and take and do whatever they please. With their 80-seat majority in the Commons, they can achieve exactly that and this measure is exactly part of that.
I referred to my family and will do so again. My grandsons have not only the heritage of those who died in the Holocaust but the heritage of those who were slaves. Had this particular amendment been available when Margaret Thatcher was Prime Minister, she could have—and I think we know would have—directed local government pensions to invest in apartheid South Africa and would not have permitted anyone who objected who was part of those pensions to have refused that investment. To me, that is outrageous and it is the fundamental flaw that sits within this amendment.
Looking at this amendment, I say to the noble Baroness, Lady Altmann, who suggested that these pension funds are somehow owned by the taxpayer, that these pension arrangements are in lieu of salary. I do not believe that anyone would say that the salary paid to a local government official should be invested under government direction, so why should the pension of a local government official be invested under government direction?
I will speak later on the economic crime Bill, very much in support of sanctions against Russia. However, those sanctions apply to everybody; they apply to every asset, public and private, and to every pension. The rules are universal. I do not have a problem with universal rules, used in extremis, which is exactly the proposition that the Government will make to us today. I do have a problem, however, when local government is singled out—when the pensions of local government servants now come under the direction of the political interest of a Government. If the Government feel so strongly that the current trustees are behaving inappropriately, they could easily have made an arrangement whereby investment decisions are put to the members; they could let them decide what they think is ethical from their perspective and how their money should be used.
I agree very much with those who have said that this is overreach. If anybody uses that word “anti-Semitism” to address opposition to this, it tells you how utterly empty the policy is in and of itself.
Lord Mann (Non-Afl)
My Lords, we could have a long and interesting debate on the question of anti-Semitism, but I fear that issues are getting slightly confused. Unless I have read this government proposal inaccurately, the Government are not proposing to give themselves powers to instruct any local authority on what it should do; they are giving themselves powers to prevent local authorities involving themselves in what local authorities might like to describe as foreign policy.
I am, on balance, in favour of this proposal, but I could put an argument against it, which would be about its impact on the BDS movement—which is, I think, in my lifetime, the most unsuccessful political campaign that I have seen. It has attempted to close down links between British academics and Israeli universities and academics and, as a consequence, those links have been greatly enhanced and deepened. It has attempted to target all sorts of investments and has failed to do so. There is an example, though, of a local authority attempting to do what might be caught out by this amendment. Sussex County Council, in 2021, following a big campaign—well, not very big, but noisy—by a small number of people demanding that it boycott Israel, made a decision. But when one looks at the decision that it made, it was not making a foreign policy statement expressly; it was fiduciary duty, the council claimed.
Did the council boycott Israel, or the alleged targets, the settlements—that was the original concept of the BDS campaign—but, having failed in that, then shift to Israel? No, it did not. It went to where things have now shifted again. It targeted multinational companies that were, it alleged, operating in Israel. The precise companies that it targeted and the products that it cited were exactly—and I mean exactly—the same products and companies that Zelensky and the Ukrainians are repeatedly requesting to defend themselves from the Russian invasion. That is what that would have meant in terms of disinvestment. The BDS campaign was not a success anywhere. It is about the impact on the Jewish community—particularly the young Jewish community, which gets this and worse thrown in its face repeatedly and constantly. It is about virtue-signalling, when the people who did it did not even have the bottle to say what it was about but pretended, in that one example, that it was fiduciary duty. That is what is particularly abhorrent to me.
Lord Leigh of Hurley (Con)
My Lords, it is always a great privilege to follow the noble Lord, Lord Mann, whose excellent speech has clarified a number of things for me—and the rest of the House, I hope—about how we should look at Amendments 54 and 54A. I am somewhat puzzled by the assertion from the noble Lord, Lord Davies of Brixton, that Amendment 54 has nothing to do with BDS. I have listened to the debate in the House of Commons and, indeed, the debate this afternoon, and that does not ring true with me.
The predominant drive of the BDS campaign and its leadership is not criticism of Israel’s policies, which would be fair enough, but a demonisation and delegitimisation of Israel using other people’s money—and it is other people’s money. The BDS campaign promotes a biased and simplistic approach to the complex Israeli-Palestinian conflict and presents this dispute over territorial and nationalist claims as if it is the fault of just one party: Israel. The BDS campaign does not support Israeli-Palestinian peace negotiations and, by the way, rejects the two-state solution to the conflict that many people in this House would like to see. Many of the founding goals of the BDS movement, including denying the Jewish people the universal right to self-determination, along with the strategies employed in the BDS campaign, are anti-Semitic. Let us be clear. Many individuals—not all, of course—involved in the BDS campaign are driven by opposition to Israel’s very existence as a Jewish state.
I was in Manchester with my daughter, who is a student at Manchester University. We went shopping in the city centre and encountered a BDS rally. The people there were chanting a chant that noble Lords may have heard: “From the river to the sea”. Do you know what that means? My daughter asked me, “What does that mean for my friends in Israel?” It means their annihilation.
BDS campaigns create tensions in communities in the UK, particularly on college campuses, which result in harassment or intimidation of Jews and non-Jewish Israeli supporters. This sometimes includes overtly anti-Semitic expressions and acts. As I said, this uses taxpayers’ money. This dynamic can create an environment in which, apart from anything else, anti-Semitism can be expressed more freely. I would not wish to suggest that anyone who supports the amendment of the noble Lord, Lord Davies, is anti-Semitic at all; I want to make the point about the BDS.
The Government are preparing legislation for the next parliamentary Session to stop public bodies from pursuing BDS activities because of their harmful impact on our foreign policy and trade interests. As has been said, the 2019 Conservative Party manifesto pledged to
“ban public bodies from imposing their own direct or indirect boycotts … against foreign countries.”
The Prime Minister himself has previously criticised public policies for adopting
“their own pseudo foreign policies against countries which with nauseating frequency turns out to be Israel.”
To his credit, in 2021, the Labour leader, Sir Keir Starmer, stated that:
“Labour does not—and will not—support BDS.”
I hope that Amendment 54 will receive full support from all Members of this House, and that all Members of this House will oppose Amendment 54A. Abstaining is not sufficient.
Lord Polak (Con)
My Lords, it is a pleasure to follow my noble friend. I will be brief. The UK is Israel’s third largest trading partner, with £2.7 billion-worth of British exports and an overall trade relationship worth £4.8 billion. With improved and growing relations in the Middle East between the Arab world and Israel—the Abraham accords were referred to—and the UK’s very strong connection with Israel, I must say that the BDS campaign is a relic of a past war which is no longer being fought in the region, but rather by a small and divisive minority here in the UK.
Amendment 54, which has passed in the other place, will put an end to the politicisation of public sector pension funds. The main goal of local authorities—in my view as someone who is not a pensions expert—is to improve community cohesion, create local jobs and increase economic growth opportunities in their area. Supporting this amendment will allow the Government to send a clear message that global cohesion on an international scale—and the enhancement of economic growth and opportunity on a local level—should not be jeopardised by the divisive politics of a very small minority.
Baroness Janke (LD)
My Lords, I too thank the Minister for his presentation and the noble Lord, Lord Davies, for bringing forward these amendments. I also declare my interest as set out in the register.
As my noble friend Lady Kramer said, Amendment 54 is a crude and oppressive attempt to fetter the discretion of local government pension schemes. It was introduced late and with minimum scrutiny. The Government should not be in the business of directing how local government pension schemes should invest their funds. These funds are set up under strict legal requirements, as we have seen. Their members are very often vocal about wishing to have ethical considerations considered as part of their investments. As far as I can see, schemes do not appear to have been damaged in any way by investments of local government pension schemes.
The job of pension scheme managers should not be to look at UK foreign policy when setting their investment strategy. That really is not their job. Foreign policy changes, and Governments change, so are we really expecting local government pension scheme fund managers to change their long-term investment strategy every time the UK’s foreign policy changes?
As I said, local government pension schemes aspire to invest ethically, with the members of such pension schemes having the right to express their ethical views and to have them taken into account. Why should these people not require ethical considerations? As my noble friend Lady Kramer mentioned, a clear example in the 1980s was disinvestment from South Africa. The then UK Government were obdurate and determined to defend South Africa from financial sanctions despite the violence, discrimination and widespread human rights abuses of apartheid. I, for one, cannot see why pension schemes should not reflect the views of their members when they want to protest against human rights being abused, as was happening in South Africa.
In the mid-1980s one in four Britons were boycotting South African goods. Many local councils followed their local communities and measures were taken to disinvest from South Africa, including pension schemes, and there were boycotts of South African goods and the boycott of Barclays Bank, which pulled out of South Africa. It was certainly said at the time that foreign banks calling in South African loans was one of the reasons given by the South African President that enabled him to agree with his party the release of Nelson Mandela. So I do not accept that pension schemes should not be used for these purposes.
I feel that this is a measure introduced by a Government with an authoritarian record who wish to take more and more powers to themselves and using the whole idea of BDS to justify that. The amendment is also so loosely worded—as my noble friend Lady Kramer has said, it is directions, not advice, that is being given— that it could easily prevent local government pension schemes making prudent investment decisions based on environmental, social and governance considerations, as is part of their code of conduct. For example, the local authority pension scheme of my former authority, Bristol, sought to disinvest from the tobacco industry as a result of the campaign by Smokefree Bristol. I know of local authorities that wish to disinvest from Saudi Arabia on the grounds of arms sales, and others are looking at boycotting investment in China on the basis of its treatment of the Uighurs and its conduct of the affairs of Hong Kong. As my noble friend Lady Sheehan has said, carbon-neutral boycott is now a common principle, and many local authority pension schemes wish to disinvest from further investment in local gas and coal.
We have experienced in other legislation the relentless expansion of government powers. There is an opportunity in this amendment for the Government to interfere in pension scheme investment when it is not in line with their own views—and I have to say that Governments are notoriously slow in catching up with public opinion.
I thank the noble Lord, Lord Leigh, for clarifying that criticism of the Government of Israel is not at all anti-Semitic. I would also like to thank the noble Baroness, Lady Deech, for her contribution—although she seemed to imply that if we support this Motion then we are somehow being anti-Semitic. I disagree with the noble Baroness, Lady Altmann, with whom I have had the pleasure of working on many pension schemes issues: I do not believe that there is any anti-Semitic intention behind this. I do not see why, if people object to the Israeli Government’s treatment of the human rights of Palestinians, they should not demonstrate that and campaign for disinvestment from Israel if that is part of their beliefs.
The amendment is ill thought-out, badly worded, hastily constructed and has been introduced with no scrutiny, and I do not believe we should support it. If the noble Lord, Lord Davies, moves his amendment and tests the opinion of the House, we will support him.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for his presentation, and I shall speak first to Amendment 48, on the cost control mechanism. We agree with the points made by my noble friend Lord Davies of Brixton, reiterated and added to by the noble Baronesses, Lady Kramer and Lady Janke. In the Commons, we raised these concerns over the introduction of what the Government call the “symmetrical economic check” and voted that this particular reform of the mechanism should not be added to the Bill. I will not repeat the background, which has been expertly put forward by my noble friend, but will just echo the concern that this breaks the Treasury’s 25-year guarantee that there would be no further fundamental reforms.
In 2011, the Government’s Paymaster-General said that those reforms represented a settlement for a generation, and they arose out of the 2011 Hutton review. Further, does the Minister recognise our concern that these reforms risk undermining the faith of public service workers in their pension schemes? What does the Minister expect of future reforms? Since the Government are clearly set on pushing ahead with the economic check, what would be most helpful now are answers to the questions put by my noble friend Lord Davies on how that would work in practice.
We raised concerns in the House of Commons that the check was insufficiently transparent and gave too much room for ministerial interpretation. As has been said, the Government’s answer is that discretion will be limited as the check will be linked to objective and independent figures from the OBR, although that particular element is not set out in the Bill. I should be grateful if the Minister confirmed that. I am hopeful that he will be able to provide some more detailed answers on the process that we should expect and how the OBR figures will be used—a point made by my noble friend Lord Davies.
Turning to Amendment 54, it is fair to say that it is an unexpected addition to what is in reality a technical Bill. It causes one to reflect on the Government’s lack of control of their own Back-Benchers in the House of Commons. The Labour Party supports the broad thrust of the new clause but shares concerns over its wide scope and possible unintended consequences. We also agree with the noble Baronesses, Lady Kramer and Lady Janke, that there is a huge element of government overreach here and we are mindful that the amendment represents directions, not guidance.
We in the Labour Party are unequivocal in our opposition to the divisive and discriminatory use of BDS against the State of Israel. We do not believe that such an approach is appropriate or would enhance the prospects of peace through a negotiated settlement to the conflict, based on a two-state solution. However, regrettably, the clause is poorly worded, too broad in scope and, as we have heard, could cause difficulties for local authorities wanting to take a principled stance on, for example, China’s treatment of the Uighurs. Many other examples have been given in the debate. It is clear that the Government have chosen to progress the Bill with this additional clause but also intend to introduce further legislation in the Queen’s Speech that will be more detailed in this area. It would be helpful if the Minister clarified what comes next and how concerns raised in today’s debate will be considered. What ongoing engagement are the Government having with the Local Government Association, which has raised concerns, and many other bodies interested in this area? I understand that a full consultation process is required before any guidance or directions can be issued under the new clause. What will that consultation process look like? Are there plans to launch a consultation, or will that not be entered into until further legislation is brought forward at the Queen’s Speech?
Finally, I repeat a question on Russia asked by a noble Lord. If schemes want to divest quickly, for example because of links to Russia—Gazprom was mentioned—would anything in the directions under this clause of the Bill put that ability to act in jeopardy in the future? Can the Minister talk to this specific point? It is obviously extremely pertinent right now but there may well be similar issues in future.
Just to be clear, if my noble friend were to press his amendment to a vote, we would abstain.
Viscount Younger of Leckie (Con)
My Lords, I am pleased to know that the great majority of the amendments have been well received. I thank all noble Lords for their considered contributions. There was quite a bit to cover and a number of questions. As noble Lords would expect, I will do my best to answer them all, or as many as possible within the timeframe allowed.
As the noble Lord, Lord Davies, said, two key themes have emerged in today’s debate. The first is guidance on investment decisions for the Local Government Pension Scheme, and the second is the economic check element of the cost control mechanism reforms. I will start with the latter and turn first to the CCM, as it is called, and in particular the economic check, as raised specifically by the noble Lord, Lord Davies of Brixton. I will speak to Amendment 48. I understand from the noble Lord’s contribution that his concern is specifically with this check, but it is important to note that the effect of rejecting Commons Amendment 48 would be also to reject the framework for the reformed scheme-only design, which, as the noble Lord will be aware, is widely supported overall.
I turn to why we think the economic check is needed. It will ensure consistency between member benefit or contribution changes and changes in the wider economic outlook, as I addressed in my opening speech. To address the question of whether this is objective, the economic check will be linked to the OBR’s independent and objective measure of expected long-term GDP growth and the long-term earnings assumption. It will operate purely mechanically, with no scope for interference from individuals or groups from within government or outside. It will therefore operate transparently and be linked to an objective and independent measure of expected long-term earnings and GDP growth. Further details on the design and operation of the economic check have been set out in the Government’s consultation response published, as the noble Lord in particular will be aware, in October 2021.
I will go a little further on the clause making reference to different sectors of the economy. The Bill implements the framework for the economic check, which will ensure consistency with member benefit and contribution changes. The Bill will allow Treasury directions to set out how the economic check should operate its scheme valuations, including whether and to what extent the growth in the economy, or any sector of the economy, of the UK or any part of the UK should be taken into account. This will allow the economic check to be based on the OBR’s independent projections of long-term UK GDP growth. I will talk more about directions in just a moment. We believe that these reforms will make the mechanism more stable from the 2020 valuations onwards and allow it to operate more in line with its objectives, giving members greater certainty with respect to their retirement incomes.
I turn to points raised by the noble Lords, Lord Davies and Lord Ponsonby, my noble friend Lady Altmann and others on the 25-year guarantee. I took note of the points raised, but the Government do not believe that these reforms breach the 25-year guarantee. The elements protected by the 25-year guarantee are set out in legislation—namely, Section 22 of the Public Service Pensions Act 2013—and the cost control mechanism is not included.
The Government are making these changes following a thorough and independent review of the mechanism by the Government Actuary and a full and open consultation process. As I have noted, the Government Actuary’s report makes clear that it does not seem possible for the mechanism to be able to protect the taxpayer unless it considers the wider economic outlook. The symmetrical operation of the economic check will also protect members. Furthermore, the reforms will lead to a more stable mechanism, with both benefit reductions and improvements becoming less likely, which aligns with the spirit of the 25-year guarantee.
I turn to the original objectives of the cost control mechanism, on which I will again delve into more detail to try to give noble Lords some reassurance. The noble Lord, Lord Davies, asked for greater clarity on the CCM. As I set out in my opening remarks, the Government asked the Government Actuary to review the mechanism following provisional results from the 2016 valuations. This was the first time the mechanism was tested, and the provisional results indicated floor breaches across all schemes for which results were assessed, leading to concerns that the mechanism was too volatile.
As part of this review, the Government Actuary was asked to assess whether and to what extent the mechanism was working in line with the original policy objectives for the mechanism. These objectives are to protect taxpayers from unforeseen costs, to maintain the value of schemes to members and to provide stability and certainty on benefit levels, so the mechanism should be triggered only by extraordinary, unpredictable events. These objectives have been retained since the mechanism was first introduced in the Public Service Pensions Act 2013.
The mechanism was introduced following the recommendations of the Independent Public Service Pensions Commission in 2011. The commission, as the House will know, was chaired by the noble Lord, Lord Hutton of Furness, and specifically recommended a mechanism to protect the Exchequer from increased costs. However, the final mechanism negotiated between the Government and member representatives is symmetrical and so also maintains the value of pensions to members when costs fall.
Let me now turn to the second theme of BDS, as raised by several noble Lords. I hope I can give some reassurances. It was particularly raised by the noble Lord, Lord Davies, and the noble Baronesses, Lady Sheehan and Lady Kramer. I thought the remarks from the noble Lord, Lord Mann, were interesting, very balanced and very helpful. I hope my remarks chime to a large extent with what he said.
As I set out in opening, Commons Amendment 54 does not put a requirement on schemes to make any immediate decisions regarding their investments. It expands existing powers for the responsible authorities to issue guidance or directions, both of which would be drafted and consulted on. I reiterate that this would involve extensive engagement with the LGPS community over the usual 12-week consultation period, during which time all views and concerns would be considered. Any guidance or directions produced would set the parameters out in detail.
There will be consultation with the LGPS community when framing such parameters to ensure that all views and concerns are considered, including on ESG matters, which were raised by the noble Baroness, Lady Janke. I understand that the contributions made by several noble Lords, including the noble Baroness, were to do with ESG. I hope I can ease concerns by assuring the House that this amendment is strictly in relation to UK foreign and defence policy, as reiterated very strongly by the noble Lord, Lord Mann. Any guidance or directions issued would not seek to restrict decisions that meet the Law Commission’s test for investment decisions influenced by non-financial considerations except in a very narrow area concerned with UK foreign and defence policy.
In all other areas the existing tests would apply, namely that scheme managers must have good reason to think that scheme members would share their particular concern and the decision does not involve a risk of significant financial detriment to the fund. If issued, such guidance would seek to provide protection to LGPS funds by preventing decisions which would otherwise have been subject to challenge under the aforementioned Law Commission tests. To reiterate, this power would not be used to restrict the proper account of ESG matters in investment decisions.
To go a little further, I reiterate that these anti-boycott provisions are not about fossil fuels or climate change. The Government have passed legislation to require pension schemes to state clearly their policy on how they take account of climate change and its risks. Clearly, climate change will have long-term financial consequences. Notwithstanding that, fuels like natural gas will continue to play a vital role in Britain’s energy mix, particularly in the production of hydrogen as we transition to a net-zero economy. We need fossil fuel companies to invest in the new technologies to help deliver what we must do to reach net zero.
I will move on to focus on the use of “directions” as opposed to “guidance”—or just to discuss both—a point raised in particular by the noble Lords, Lord Davies and Lord Ponsonby. Administering authorities must have regard to guidance issued by the responsible authority. Directions allow responsible authorities to direct specific action by a scheme manager. For example, a direction may be considered appropriate if the responsible authority is satisfied that the administering authority is failing to act in accordance with guidance.
Viscount Younger of Leckie
Moved by
That this House do agree with the Commons in their Amendment 48.
“Employer cost cap
Amendments relating to employer cost cap
(1) Section 12 of PSPA 2013 (employer cost cap) is amended in accordance with subsections (2) to (9).
(2) After subsection (1) insert—
“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.”
(3) For subsection (2) substitute—
“(2) A reference in this section to “the employer cost cap” of a scheme under section 1 is a reference to the rate set by virtue of subsection (1) in relation to the scheme.”
(4) In subsection (3)—
(a) after “cap” insert “of a scheme under section 1”;
(b) after “set” insert “, and the changes in the cost of such a scheme are to be measured,”.
(5) In subsection (4)—
(a) in paragraph (a), for “the cap” substitute “the employer cost cap of the scheme”;
(b) in paragraph (b)—
(i) for “subsequent valuations” insert “the second or any subsequent valuation”;
(ii) for “the cap” substitute “the employer cost cap of the scheme”;
(c) in paragraph (c)—
(i) for “the extent to which” substitute “whether and if so to what extent”;
(ii) for “of this section” substitute “mentioned in paragraph (b)”;
(d) after paragraph (c) insert—
“(d) that the data, methodologies and assumptions that are to be used for the purposes mentioned in paragraph (b) are to relate, to any extent, to—
(i) the growth in the economy, or any sector of the economy, of the United Kingdom or any part of the United Kingdom,
(ii) the growth in earnings of any group of persons over any period, or
(iii) the rate of inflation (however measured) over any period.”
(6) After subsection (4) insert—
“(4A) The power to give directions by virtue of subsection (4)(d) is not affected by any statement made before 27 May 2021 by the Treasury, or any Minister of the Crown, relating to the data, methodologies and assumptions that are, or are not, to be used for the purposes mentioned in subsection (4)(b).”
(7) In subsection (5)(a) for “(and any connected scheme)” substitute “(determined, if and so far as provided for by virtue of subsection (4)(c), taking into account the costs of any connected scheme)”.
(8) In subsection (6), in the opening words—
(a) for “the scheme” substitute “a scheme under section 1”;
(b) for “the margins” substitute “either of the margins specified under subsection (5)(a)”.
(9) After subsection (7) insert—
“(7A) Treasury directions may specify the time at which any increase or decrease of members’ benefits or contributions that is provided for under subsection (6) is to take effect.
(7B) Treasury directions may require that provision contained in scheme regulations under subsection (6) permits steps to be—
(a) agreed by virtue of paragraph (a) of that subsection, or
(b) determined by virtue of paragraph (b) of that subsection, only after the scheme actuary has certified that the steps would, if taken, achieve the target cost for the scheme.
(7C) Treasury directions under subsection (7B) may specify—
(a) the costs or changes in costs that are to be taken into account, or
(b) the data, methodologies and assumptions that are to be used,
for the purposes of determining whether any steps would, if taken, achieve the target cost for the scheme.
(7D) In subsection (7B) “the scheme actuary”, in relation to a scheme under section 1, means the actuary who carried out, or is for the time being exercising actuarial functions in relation to, the valuation under section 11 by reference to which it has been determined that the costs of the scheme have gone, or may go, beyond either of the margins specified under subsection (5)(a).”
(10) Section 12 of PSPA(NI) 2014 (employer cost cap) is amended in accordance with subsections (11) to (19).
(11) After subsection (1) insert—
“(1A) Subsection (1) must be complied with before the end of the period of one year beginning with the day on which the scheme’s first valuation under section 11 is completed.”
(12) For subsection (2) substitute—
“(2) A reference in this section to “the employer cost cap” of a scheme under section 1 is a reference to the rate set by virtue of subsection
(1) in relation to the scheme.”
(13) In subsection (3)—
(a) after “cap” insert “of a scheme under section 1”;
(b) after “set” insert “, and the changes in the cost of such a scheme are to be measured,”.
(14) In subsection (4)—
(a) in paragraph (a), for “the cap” substitute “the employer cost cap of the scheme ”;
(b) in paragraph (b)—
(i) for “subsequent valuations” insert “the second or any subsequent valuation”;
(ii) for “the cap” substitute “the employer cost cap of the scheme”;
(c) in paragraph (c)—
(i) for “the extent to which” substitute “whether and if so to what extent”;
(ii) for “of this section” substitute “mentioned in paragraph (b)”;
(d) after paragraph (c) insert—
“(d) that the data, methodologies and assumptions that are to be used for the purposes mentioned in paragraph (b) are to relate, to any extent, to—
(i) the growth in the economy, or any sector of the economy, of the United Kingdom or any part of the United Kingdom,
(ii) the growth in earnings of any group of persons over any period, or
(iii) the rate of inflation (however measured) over any period.”
(15) After subsection (4) insert—
“(4A) The power to give directions by virtue of subsection (4)(d) is not affected by any statement made before 27 May 2021 by the Department of Finance, or any other department, relating to the data, methodologies and assumptions that are, or are not, to be used for the purposes mentioned in subsection (4)(b).”
(16) In subsection (5)(a), for “(and any connected scheme)” substitute “(determined, if and so far as provided for by virtue of subsection (4)(c), taking into account the costs of any connected scheme)”.
(17) In subsection (6), in the opening words—
(a) for “the scheme” substitute “a scheme under section 1”;
(b) for “the margins” substitute “either of the margins specified under subsection (5)(a)”.
(18) After subsection (7) insert—
“(7A) Directions given by the Department of Finance may specify the time at which any increase or decrease of members’ benefits or contributions that is provided for under subsection (6) is to take effect.
(7B) Directions given by the Department of Finance may require that provision contained in scheme regulations under subsection (6) permits steps to be—
(a) agreed by virtue of paragraph (a) of that subsection, or
(b) determined by virtue of paragraph (b) of that subsection, only after the scheme actuary has certified that the steps would, if taken, achieve the target cost for the scheme.
(7C) Directions under subsection (7B) may specify—
(a) the costs or changes in costs that are to be taken into account, or
(b) the data, methodologies and assumptions that are to be used,
for the purposes of determining whether any steps would, if taken, achieve the target cost for the scheme.
(7D) In subsection (7B) “the scheme actuary”, in relation to a scheme under section 1, means the actuary who carried out, or is for the time being exercising actuarial functions in relation to, the valuation under section 11 by reference to which it has been determined that the costs of the scheme have gone, or may go, beyond either of the margins specified under subsection (5)(a).”
(19) In subsections (3), (4), (5), (8), (9) and (10) omit “and Personnel”.”
Lord Davies of Brixton (Lab)
My Lords, I make no apology for promoting this debate; this is an important issue that the House has an obligation to consider carefully. I listened to what the Minister said about the economic test. I still feel there is a lack of information but, particularly in light of his statement that there was no scope within the mechanism for intervention—presumably by the Government—I look forward to seeing the directions in some detail and will try to promote some discussion in this House. However, for the purposes of this debate, I will not move my amendment.
Viscount Younger of Leckie
Moved by
That this House do agree with the Commons in their Amendments 49 to 53.
(1) The requirement in provision made under section 12(5)(a) of PSPA 2013 that the cost of a section 1 scheme must remain within a margin above the employer cost cap of the scheme does not apply, and is treated as never having applied, in relation to the cost of the scheme that is calculated by reference to the scheme’s 2016/17 valuation.
(2) Accordingly, provision made under section 12(6) of that Act does not apply, and is treated as never having applied, in relation to a case in which the cost of a section 1 scheme that is calculated by reference to the scheme’s 2016/17 valuation goes beyond a margin above the employer cost cap of the scheme.
(3) In subsections (1) and (2) and this subsection—
(a) “section 1 scheme” means a scheme under section 1 of PSPA 2013;
(b) “the employer cost cap”, in relation to a section 1 scheme, has the same meaning as in section 12 of PSPA 2013;
(c) a reference to a section 1 scheme’s “2016/17 valuation” is to the scheme’s valuation under section 11 of PSPA 2013 the effective date of which is a date in 2016 or 2017.
(4) The requirement in provision made under section 12(5)(a) of PSPA(NI) 2014 that the cost of a section 1 scheme must remain within a margin above the employer cost cap of the scheme does not apply, and is treated as never having applied, in relation to the cost of the scheme that is calculated by reference to the scheme’s 2016/17 valuation.
(5) Accordingly, provision made under section 12(6) of that Act does not apply, and is treated as never having applied, in relation to a case in which the cost of a section 1 scheme that is calculated by reference to the scheme’s 2016/17 valuation goes beyond a margin above the employer cost cap of the scheme.
(6) In subsections (4) and (5) and this subsection—
(a) “section 1 scheme” means a scheme under section 1 of PSPA(NI) 2014;
(b) “the employer cost cap”, in relation to a section 1 scheme, has the same meaning as in section 12 of PSPA(NI) 2014;
(c) a reference to a section 1 scheme’s “2016/17 valuation” is to the scheme’s valuation under section 11 of PSPA(NI) 2014 the effective date of which is a date in 2016 or 2017.
(7) The actuarial valuation with an effective date of 31 March 2016 that was signed on 18 December 2018 under regulation 123 of the Local Government Pension Scheme Regulations (Northern Ireland) 2014 (S.R. (N.I.) 2014 No. 188) is of no effect.”
“(6A) In section 8 of PSPA 2013 (types of scheme), after subsection (4) insert—
“(4A) The extent to which a scheme under section 1 is a career average revalued earnings scheme is not affected by provision contained in scheme regulations that is made under section (Power to pay final salary benefits) of PSPJOA 2022 (local government schemes: power to pay final salary benefits).””
“(13A) In section 8 of PSPA(NI) 2014 (types of scheme), after subsection (4) insert—
“(4A) The extent to which a scheme under section 1 is a career average revalued earnings scheme is not affected by provision contained in scheme regulations that is made under section (Power to pay final salary benefits) of PSPJOA 2022 (local government schemes: power to pay final salary benefits).””
“Amendments relating to pension schemes for members of the Senedd
In section 30 of PSPA 2013 (new public body pension schemes), after subsection (4) insert—
“(4A) The following provisions of this section do not apply to a new public body pension scheme which is made under section 20(3) of the Government of Wales Act 2006 (remuneration of members of the Senedd: pensions)—
(a) subsection (1)(e) (cost control);
(b) subsection (3) (Treasury consent).””
Viscount Younger of Leckie
Moved by
That this House do agree with the Commons in their Amendment 54.
“Guidance to public service pension scheme managers on investment decisions
(1) The Public Service Pensions Act 2013 is amended in accordance with subsection (2).
(2) In Schedule 3, in paragraph 12(a), at end insert “including guidance or directions on investment decisions which it is not proper for the scheme manager to make in light of UK foreign and defence policy”.”
Lord Davies of Brixton (Lab)
I have to say that I understand and respect the strength of noble Lords’ feelings on BDS, but I hold to my view that it was not the subject of today’s debate. Today’s debate was about whether the decisions about local government investments held on behalf of scheme members should be taken by the trustees, who have a fiduciary responsibility, or by the Government, who do not. It is notable that the Pensions and Lifetime Savings Association and local government as a whole consider that this amendment is unnecessary and ill thought-out, with unknown consequences.
However, I take it from the Minister’s words that, in practice, full consideration of this issue will be deferred until the Government come forward with their own legislative proposals, at which time we can give it proper consideration. I suspect that I will still oppose those proposals, but clearly we have not had the time to give this change sufficient attention. In light of what the Minister has said, I will not move my amendment.
Viscount Younger of Leckie
Moved by
That this House do agree with the Commons in their Amendments 55 to 81.
(c) a compensatable loss for the purposes of section (Power to pay compensation) (power to pay compensation under Chapter 3).”
“, or (c) a member of a local government new scheme within section 79(2)(a) who has remediable service that is pensionable service under the scheme.”
“(c) in paragraph (c), “local government new scheme” and “remediable service” have the same meaning as in Chapter 3.”
(c) a compensatable loss for the purposes of section (Power to pay compensation) (power to pay compensation under Chapter 3).”
(c) a member of a local government new scheme within section 79(2)(b) who has remediable service that is pensionable service under the scheme.”
“(c) in paragraph (c), “local government new scheme” and “remediable service” have the same meaning as in Chapter 3.”
“Parliamentary procedure for judicial schemes: transitory provision
(1) This section applies to scheme regulations for a scheme relating to the judiciary that are made at any time within the period of one month beginning with the day on which this Act is passed.
(2) A statutory instrument containing scheme regulations to which this section applies must be laid before Parliament after being made.
(3) Regulations contained in a statutory instrument laid before Parliament under subsection (2) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.
(4) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—
(a) Parliament is dissolved or prorogued, or
(b) either House of Parliament is adjourned for more than four days.
(5) If regulations cease to have effect as a result of subsection (3), that does not—
(a) affect the validity of anything previously done under the regulations, or
(b) prevent the making of new regulations.
(6) If regulations otherwise subject to the negative procedure are combined with scheme regulations to which this section applies, the combined regulations are subject to the procedure set out in this section.
(7) Section 24 of PSPA 2013 (other procedure) does not apply to scheme regulations to which this section applies.
(8) In this section, the following expressions have the same meaning as in PSPA 2013—
“the judiciary” (see paragraph 2 of Schedule 1 to that Act); “negative procedure” (see section 38(3) of that Act); “scheme” (see section 37 of that Act);
“scheme regulations” (see section 1(4) of that Act).”
(a) connected within the meaning of PSPA 2013 (see section 4(6) and (7) of that Act), or
(b) connected within the meaning of PSPA(NI) 2014 (see section 4(6) and (7) of that Act);”
““excess teacher service” has the meaning given by subsection (2)”
““Fair Deal scheme” means—
(a) a pension scheme that, in accordance with the Fair Deal Statement of Practice, has been certified by the Government Actuary’s Department as offering, to persons who have been subject to a Fair Deal transfer, pension arrangements that are broadly comparable with those offered to them before the transfer, or
(b) a pension scheme in relation to which the obligation to give such a certificate has been waived in accordance with that statement of practice;
“Fair Deal Statement of Practice” means the statement of practice entitled “Staff Transfers in the Public Sector” issued by the Cabinet Office in January 2000, as supplemented and modified from time to time;
“Fair Deal transfer” means a transfer of a person’s employment from a public sector employer to a private sector employer in accordance with the Fair Deal Statement of Practice;”
““local government contracting-out transfer” means a transfer of a person’s employment that was required to be conducted—
(a) in accordance with directions given, and having regard to guidance issued, for the purposes of section 101(1) of the Local Government Act 2003 (contracting out: staff transfer matters), or
(b) having regard to guidance issued for the purposes of section 52 of the Local Government in Scotland Act 2003 (asp 1) (guidance on contractual matters);”
““teacher” means teacher within the meaning of PSPA 2013 (see paragraph 4 of Schedule 1 to that Act) or PSPA(NI) 2014 (see paragraph 4 of Schedule 1 to that Act);”
“(2) In this Part “excess teacher service” means a person’s service in an employment or office as a teacher where (disregarding section 2(1))—
(a) the service is pensionable service under a local government new scheme, or
(b) the service—
(i) is pensionable service under a Chapter 1 new scheme for teachers, and
(ii) would have been pensionable service under a local government new scheme but for the person’s failure to meet a condition relating to the person’s attainment of normal pension age, or another specified age, by a specified date.
Service in an employment or office is “excess teacher service” if all of the service falls within paragraphs (a) and (b) (even if it does not all fall within only one of those paragraphs).
(3) In subsection (2)—
“Chapter 1 new scheme” has the same meaning as in Chapter 1; “local government new scheme” has the same meaning as in Chapter 3.”
“(ba) scheme regulations for a local government scheme (within the meaning of Chapter 3 of Part 1), or”
“(1A) In Schedule 3 (judicial offices)—
(a) Part 4 extends to Northern Ireland only;
(b) Part 5 extends to England and Wales only.”
(a) confers a power to make subordinate legislation or give directions, or
(b) otherwise relates to”
“(d) Chapter 3, and sections 97 and 98 so far as they apply for the purposes of that Chapter, come into force in relation to a local government scheme within section 79(2)(a) or (3)(a) on—
(i) 1 October 2023, or
(ii) such earlier day as the Treasury may by regulations appoint;
(da) Chapter 3, and sections 97 and 98 so far as they apply for the purposes of that Chapter, come into force in relation to a local government scheme within section 79(2)(b) or (3)(b) on—
(i) 1 October 2023, or
(ii) such earlier day as the Department of Finance in Northern Ireland may by order appoint;”
(b) Chapter 3, or sections 97 and 98 so far as they apply for the purposes of that Chapter, in relation to a local government scheme within section 79(2)(b) or (3)(b).”
“President of the Education Tribunal for Wales
Member of the legal chair panel, or the lay panel, of the Education Tribunal for Wales”
“Member of the legal chair panel of the Education Tribunal for Wales”
Royal Assent
Thursday 10th March 2022
(3 years, 4 months ago)
Lords ChamberPublic Service Pensions and Judicial Offices Act 2022 Read Hansard Text Amendment Paper: HL Bill 118-I Marshalled List for Consideration of Commons Amendments - (8 Mar 2022)