Lord Newby
Lord Newby
My Lords, I will start with government Amendments 10 and 11, which would require equal numbers of employer and member representatives to be appointed to each pension board in the public service pension schemes.
The noble Lords, Lord Eatwell and Lord Sharkey, previously argued for an amendment that would have required one-third of pension board appointees to be member representatives. Their amendments essentially sought to create parity with requirements that apply to trust-based occupational pension schemes.
During Committee, I explained why simply importing those requirements was in our view inappropriate, but we accept the principle that employees should be properly represented, so, for the public schemes, we propose that there should be equal representation. That would mean that there will always be equal representation of employer and employee interests, regardless of the number of participating employers in a scheme. Given that public service pension boards will not have a role in setting the scheme regulations, there is no need to engineer a balance that favours either group.
The amendments would not prevent schemes appointing other types of board member. We anticipate that schemes will want to include scheme manager representatives, independent board members and other interests. It is of course right that other legitimate interests can be included alongside the core of employer and member representatives. We believe that our approach offers a fairer and better way to ensure that members’ interests are represented in the public schemes.
The other amendments in the group are straightforward clarifications and corrections. Amendment 9 would reinforce the appropriate reading of the Bill. As we know, there will be multiple scheme managers in the locally administered fire, police and local government pension schemes. The amendment makes it clearer that each of them shall have a pension board.
Amendments 12 and 13 are minor and technical corrections to ensure that the Bill operates as intended. Amendment 12 ensures that a scheme advisory board can be given a role in advising the scheme managers and pension boards in any public scheme that is administered by more than one scheme manager. The previous drafting inadvertently and incorrectly prevented a scheme advisory board being given such a role in the police scheme. The amendment corrects that.
Amendment 13 responds to a point raised by the noble Lord, Lord Hutton, in Committee, by adjusting the provisions that prevent a person with a conflict of interest being appointed to the scheme advisory board. The change means that mere membership of either the pension scheme or a connected scheme does not constitute a conflict of interest. The amendment would mean that the conflict of interest provisions in this clause exactly mirror those already in Clause 5. I commend the amendments to the House.
Lord Davidson of Glen Clova
My Lords, we on this side welcome the amendments. The Minister gave a commitment to the House which we are pleased has been honoured. We recognise that significant movement has been made by the Government in relation to governance and pension boards. In particular, we applaud what the Minister said about equal representation on pension boards. To have employees on such pension boards is a very welcome development.
Perhaps it is a small matter, but the Minister referred to the amendment dealing with conflict of interest. It is particularly gratifying to see that a small matter which might have been seen as an obstacle to equal representation on the pension board has been removed by careful drafting.
Lord Newby
“(c) requiring the board to include employer representatives and member representatives in equal numbers.”
Lord Newby
Lord Eatwell
My Lords, this amendment, which is a reprise of something that we debated in Committee, derives from a peculiarity of the process through which this Bill has gone, in that many of the measures in the Bill derive from negotiation between the trades unions, other interested parties and the Government. Having reached agreement, the Government’s side seems to appear in the Bill but the assurances given to the other side in the negotiations do not. What we have instead is simply a continuous series of government assurances.
This amendment requires that a defined benefit scheme should be replaced with a defined benefit scheme. This reinforces the Government’s oft-repeated commitment to maintaining the defined benefit structure once the definition of the defined benefit has been changed, in the way that was proposed by my noble friend Lord Hutton. However, Clause 8 still provides that any scheme, once closed, can be replaced by,
“a scheme of any other description”.
Those are the exact words. As I said just now, the Government have continuously sought to give assurance that they would not replace a defined benefit scheme by anything other than a new defined benefit scheme but they have proved peculiarly reluctant to place such a condition in the Bill. This persistent reluctance is becoming quite disturbing and is significantly undermining the confidence of pension scheme members that their rights are going to be protected in the ways that have been suggested.
As I pointed out in Committee, the noble Lord, Lord Newby, further undermined the confidence of members when he said on 19 December that,
“although the Government have absolutely no intention to change the basis of the schemes, it makes sense for a piece of legislation, which we hope has a long life itself, to allow flexibility in the future if there are unforeseen changes”.—[Official Report, 19/12/12; col. 1585.]
Therefore, the Government are making a commitment: they continuously assure members that they will replace defined benefit schemes only with newly constructed defined benefit schemes—but, on the other hand, perhaps unforeseen circumstances mean that they will not.
I feel it is appropriate that the Government keep their side of the deal, which was that the defined benefit schemes would move from a final salary scheme to a salary-averaging scheme, which was a deterioration in the future pension benefits available to scheme members. They accepted that because the other side of the deal was that the Government said that they would commit not to move away from defined benefits. The Minister really has to tell us why the Government are so reluctant to keep their side of the deal. I beg to move.
Lord Newby
My Lords, this is indeed a reprise of a debate which we had in Committee. I believe that the Government have been extremely clear about their position on this issue throughout the legislative process, both here and in another place. Let me explain again why we remain unmoved. At the risk of stating the obvious, the Government have no desire or intention to replace the defined benefit schemes that have been negotiated. Officials, employers and member representatives have worked extremely hard to agree scheme designs that meet the needs of the different workforces and which are fair and affordable.
We believe that the new schemes are fit for purpose. Everyone is now working to implement these schemes from April 2015 for most workforces, but earlier than that in some cases. Draft regulations for the Civil Service scheme have been shared with the House, while the local government scheme in England and Wales has gone out to informal consultation on its own draft regulations.
While each set of regulations remains a work in progress, there can be no doubt that they would establish a defined benefit scheme of the agreed career average design. So when the Government say that we have no other intention than to create defined benefit schemes, those are not mere words—we are putting them into practice. The Government say that we have no intention of replacing defined benefit schemes with other designs, and that intention is underpinned clearly in the Bill by Clause 22.
The extent to which a scheme is a CARE scheme is explicitly one of the protected elements in the clause. That means that for a full 25 years—26 years in some schemes—the defined benefit design could not be easily changed. To do so, the responsible authority would have to consult on the proposed changes with all those affected,
“with a view to reaching agreement”.
That is a higher standard of consultation than in most other statutory consultations. The authority must do more than seek out and consider the views of interested parties; it must engage with them, with the aim of reaching agreement with them. In addition, the authorities must present a case to Parliament, or the devolved legislature, for changing the scheme design from career average, notwithstanding an explicit presumption written into the Bill that it would not be desirable to change the design before 2040.
There is no ambiguity here. Noble Lords and scheme managers can be fully reassured of our commitment to a defined benefit arrangement. It would be misleading and unnecessarily alarmist to imply anything to the contrary. So I say again: there is no prospect of the Government wanting to replace the defined benefit schemes that we are working so hard to develop, and I believe that that is the position of the party of the noble Lord, Lord Eatwell, also. The noble Lord may say, as he has in the past, that Governments come and go, but the status of the new defined benefit schemes will be protected by the Bill. I therefore urge the noble Lord to withdraw his amendment.
Lord Eatwell
That was an intriguing reply. The usual reply in circumstances where the Government feel that they have covered all bases is that an amendment is unnecessary, but the Minister did not feel that he could say that. It is striking that, despite his variety of assurances, a simple statement is unacceptable. However, under the circumstances, I will take this away and think about it further. For the moment, I beg leave to withdraw the amendment.
Lord Eatwell
My Lords, I fully support the arguments put forward by my noble friend Lord Whitty, particularly on the complications that would arise with respect to the Local Government Pension Scheme. The amendment in my name and that of my noble and learned friend Lord Davidson refers to the general proposition in Clause 9(3) that,
“the Treasury may determine the change in prices or earnings in any period by reference to the general level of prices or earnings estimated in such manner as the Treasury consider appropriate”.
The Treasury has a completely free hand to determine the change in prices or earnings to be applied to the structure of the pension scheme. It seems to us on this side that this is really a step too far, so we have proposed that it should be subject not to a negative Commons procedure but to the affirmative procedure so that there can be a truly substantive debate on any particular proposal that might be unreasonable.
In Committee the Minister said:
“Any attempt to exercise this discretion in such a way that did not produce accurate and appropriate estimates”—
I must say as an economist that there is no such thing; there are estimates, but “accurate and appropriate” is something different—
“with reference to a reasonable index of prices or earnings”—
there is no such thing as that either—
“could be challenged by scheme members. Any decision which is not reasonable”—
that is fine—
“even without this amendment … could be challenged by judicial review and struck down by the High Court”.—[Official Report, 15/1/13; col. 608.]
What a cumbersome procedure. The affirmative procedure may be seen as taking somewhat more time and requiring more effort than the negative procedure, but how much better than saying, “Well, if this goes wrong, you’ve got to take it to the High Court”? That really is truly unsatisfactory.
Introducing this very minor amendment will provide an environment for the discussion of changes in the chosen index that can be deemed to be reasonable and to have the confidence of members of the schemes. I feel that this approach, perhaps allied with that suggested by my noble friend, would provide the confidence in the process of revaluation that from time to time can be enormously important in maintaining standards of living, particularly of more elderly pensioners.
Lord Newby
My Lords, as we are debating a group that started with an amendment moved by the noble Lord, Lord Whitty, I shall take this opportunity to answer the question he asked me earlier about whether the administering authority or the employing authority would determine whether an effect is significant. I am extremely pleased that I did not try to reply at the time because the answer is neither. It will be the “responsible authority”, because that is the authority that will be making the scheme regulations. In the local authority scheme, it would be not the employer but the Secretary of State. I hope that answers that question.
We have debated the amendments in this group before, so I shall try to be relatively brief in explaining why I do not believe it would be fair to restrict the revaluation of accruals from directly tracking growth, including when it is negative. Even though negative changes in prices or earnings are exceptionally rare, the Government firmly believe that if there is no revaluation ceiling, it would be unfair to have a revaluation floor to the benefit of members.
This is the sort of unbalanced risk-sharing between members and the taxpayer that the measures in this Bill seek to remove. The report by the noble Lord, Lord Hutton, specifically criticised this “asymmetric sharing of risk”. In addition, such a revaluation floor could lead to the cost cap being breached, to the detriment of future members who simply end up paying for past members’ accruals growing faster than the scheme revaluation rate. For those reasons, I will not be able to support the amendment of the noble Lord, Lord Whitty.
I am also unable to support the amendment of the noble Lord, Lord Eatwell, which would make the annual Treasury revaluation order affirmative rather than negative. As we have said before, this would not be an efficient use of parliamentary time and would be counter to the long-standing convention with other public service pension indexation. The order will be a run of the mill piece of legislation, and it would be incongruous for it to be subject to the affirmative procedure in each and every year.
However, I hope that I can go some way to meeting noble Lords’ concerns. In the years when the values in the order are negative, there will be a strong expectation that the Government of the day should ensure that there is a full parliamentary debate on the changes, not least because they would be so rare. Perhaps we can go further than that general statement and look at whether to require the affirmative procedure when, as unlikely as these events will be, the order sets out a negative figure. It seems that this would strike the appropriate balance between parliamentary scrutiny and sensible regulation-making.
I would therefore be willing, if the noble Lords were able not to press their amendments, to take this away to consider it further, with a view to returning to the matter at Third Reading with an amendment that would require any annual order to come before the House for affirmative procedure if the CPI index slipped into negative territory. I therefore hope that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.
Lord Whitty
My Lords, I thank the Minister for at least part of that response. I also thank him for the clarification of “authority”, although it alarmed me somewhat more than I thought it would. The only more alarming thing would have been if he had said that it was the Treasury. It is clearly not within the bounds of the scheme to assess it, so my noble friend’s point in a previous debate is rather more valid than I was hoping it was. We will perhaps return to that at a later stage, at least informally.
On the amendments in this group, I read the Hutton report fairly thoroughly at the time. I do not recall the noble Lord, Lord Hutton, advocating that we should have negative adjustment. Clearly there is a balance of risk, which is reflected in the changes to the substance of the scheme that has been proposed by the Government and, in the case of the LGPS, has been accepted in the negotiations between the employers and unions. If the noble Lord seeks further rebalancing of the risk over and above what is already reflected in a scheme, which, I remind him, has been endorsed by the sponsoring department and, however grudgingly, by the Treasury, that reopens a can of worms.
Were I in the Minister’s shoes, which thank the Lord I am not, I would probably have said, “I will not accept the amendment of the noble Lord, Lord Whitty, but I will accept the amendment of the noble Lord, Lord Eatwell”. In that case, I would clearly have deferred to the amendment of the noble Lord, Lord Eatwell, and I and the rest of us could go home reasonably satisfied. As it is, the Minister on the one hand has said explicitly that he is going to reject that amendment, but on the other has described a process that did not seem a million miles from my noble friend’s advocacy of the affirmative procedure.
The Minister said that if there is a negative movement in the index, Parliament should have a full and thorough debate, having a couple of paragraphs earlier said that it was run of the mill legislation. It is clearly not run of the mill if it has not happened for 30 years. That full and thorough debate would normally be accompanied by an affirmative procedure, or something very like it. I am therefore not feeling quite so negative towards the Minister as I thought I would at the beginning of his remarks. He has said that he will go away and look at this. I think that if he looks at it carefully, he will come back and accept, or propose something equivalent to, my noble friend Lord Eatwell’s proposition. In that case, although I will not be completely satisfied, it gives a serious safeguard for the members of these schemes, and for the coherent administration of and trust in them, which are so important to tens of thousands of local authority workers and dozens of local authority employees.
I do not regard the Minister’s reply as satisfactory, but rather than press my amendment to the vote or encourage my noble friend so to do, we have to grab hold of the Minister’s offer of further consideration and see what he comes up with at this rather late stage of the Bill. Nevertheless, an important consideration now faces him. I am grateful for his commitment thus far, and therefore beg leave to withdraw the amendment on that understanding.
Baroness Hollins
My Lords, I support Amendments 19 and 20, which aim to ensure greater flexibility in the Bill with respect to pension age. Clause 9, as we have heard, links normal pension age for public sector pensions to the state pension age, with the notable exception of firefighters, police and the Armed Forces. There is a strong case for other sections of the workforce being kept under review, as proposed in these amendments. In the NHS, a review is already under way—the working longer review—of the planned increase in the normal pension age for staff in the NHS pension scheme to 68. It is being undertaken jointly by the Government, employers and health unions.
The BMA, of which I am president, strongly believes that this review should be able to make genuinely evidence-based recommendations, which should cover any—and, if so, which—front-line NHS staff who have roles that are particularly physically, mentally and/or emotionally demanding and, therefore, should have their normal pension age capped at a lower age. The review was a key component of the scheme’s specific discussions between the Government and trade unions. However, these discussions appear to have been sidelined by Clause 9.
The principle is now established that not everyone should be linked to the state pension age. The list of occupations exempted from the Bill could lead to the curious situation whereby someone within those exempted occupations could have a less physically demanding role and would be protected, whereas someone who works in front-line clinical care—perhaps in the intensive care unit—is not protected because the NHS pension scheme is not included.
In a hospital setting, for example, there is pressure to deliver 24/7 care and it does not seem fair to protect one group completely on the basis of their occupational status, yet ignore the potential needs of another group. Many front-line NHS staff are engaged in very demanding work. I hope that the Bill can be amended to allow some flexibility. Amendment 19 would allow for further categories of workers to be exempt from the state pension age link if a scheme capability review found it appropriate. I hope that the Government will support it.
In the final report of the Independent Public Service Pensions Commission, recommendation 11 states that,
“the link between the State Pension Age and Normal Pension Age should be regularly reviewed, to make sure it is still appropriate”.
As written, the Bill does not seem to allow for that. Therefore, I hope that Amendment 20 also will be supported to make this explicit in the Bill.
Lord Newby
My Lords, as regards Amendment 18, we are aware of, and greatly respect, the hard work done by the police, firefighters and the Armed Forces. But the noble Lord, Lord Hutton, was clear that the normal pension age for these schemes should be equal to 60, subject to regular review. As we know, this fixed age is already significantly different from the position for all other public service workers. A pension age of 60 for police and firefighters is in line with the reforms implemented by the previous Administration. We are not, and nor should we be, in the business of reducing pension ages given the longevity challenges we face. To do so would go against all that the Bill is designed to achieve.
We already have made a commitment to review these provisions as and when future changes to the state pension age are announced. Those reviews will be separate from the state pension age reviews to ensure that the specific impacts on public service schemes are taken into account. The noble Lord, Lord Eatwell, asked about where we would legislate for the DWP White Paper more generally. We will legislate separately for that. Obviously, it is not appropriate to do that in this Bill. It is a much wider issue and we will deal with the question of reviews in the context of the rest of the White Paper.
I firmly believe that the drafting of the Bill is correct on this issue and that the pension age provisions, including the link to state pension age for other schemes, are rightly the cornerstone of the legislation. It is also worth remembering that setting a normal pension age of 60 does not prevent people retiring before 60 if they wish. Early retirement factors can be taken within the scheme rules and added pension can be bought. Both of those allow for more flexibility over when people can access their pension. All three schemes captured by this amendment already allow people to take benefits from the age of 55 if they wish.
However, I will attempt to respond briefly to the points raised concerning the firefighters and the review by Dr Williams, about which the noble Lord spoke. I should start by making it clear that it is not the case that the review found evidence that a very large proportion of firefighters would not be fit enough to work to 60. The report finds that the average serving firefighter is already beyond the required fitness levels at the age of 35 to maintain operational fitness until the age of 60, if those individuals maintain their physical activity levels and BMI.
In our meeting, I discussed with the union that there is an argument for more structured and formal procedures to be in place to help people keep fit. People may spend time on physical activity but quite a lot of it might generously be called pretty informal. Getting a more formal and rigorous fitness regime in place, which would help individuals more generally as well as in their ability to work to the age of 60, falls outside the scope of the Bill and is something that the FBU no doubt will want to discuss further with its employers.
The report projects that in circumstances where people maintain their physical activity levels and BMI, individuals could maintain operational fitness in many cases until their mid-60s. We simply do not believe that it is necessary to make an amendment which enables a lower pension age than 60 for members of the firefighters’ scheme, or for the police and Armed Forces schemes.
The difference from Amendment 19 is that it would allow for exemptions to any of the normal pension age provisions currently set out, should a capability review make such a recommendation. We are not talking about just the police, firefighters and Armed Forces but all other public servants who will have their normal pension age linked to the state pension age.
I should briefly remind the House of the reason for the state pension age link in the first place. To get a grip on public finances, we were faced with a choice. We could either significantly reduce the value of scheme benefits or ask people to work slightly longer before they can receive their pension. We decided that the latter approach is best. Scheme benefits will be marginally less generous in the new schemes but only by a small amount. Instead, we are asking people to wait until their state pension age before becoming eligible for their pension. We think that this is preferable to significantly reducing benefits and increasing hard-working public servants’ reliance on means-tested benefits in their retirement.
We should remember what this state pension age link really means. For those retiring in the near future, it means waiting until the age of 66. When people talk about waiting until 67 or 68 and beyond, they are talking about several decades’ time from now. We are not talking about extending people’s working lives overnight. Instead, we have a lot of time to assess how best to adapt to extended longevity and how to ensure that employers provide the right working conditions to allow people to work up to the state pension age. That is why the NHS working longer review—to which the noble Baroness, Lady Hollins, referred—is so important.
I think everyone recognises—I made this point in Committee—that it is not just in the public sector that there are a range of occupations which people cannot do as well at the age of 67 as they can at 27. It is a challenge across society to find methods of working which reflect that so that people can carry on working to a later retirement age without being faced with undue stress during their latter years. The review is looking not at the link with retirement age but at how best to deliver NHS services with a workforce who is living longer. I am sure that other workforces in the public sector will need to follow the lead of the NHS in looking at how they can achieve that.
What we should not do is seek to make exceptions to the state pension age link. As I have outlined, the link has very little effect in the short to medium term, but it is a crucial part of the solution to the long-term problem. While we should not dig our heads in the sand, there comes a time when it is best to accept the reality of the situation: people are living longer and the public service workforce must and will adapt to that. The previous Administration recognised that when they asked all public servants—barring those whom we have identified—to work to the age of 65. We are simply future-proofing that approach by tracking the state pension age as it moves beyond 65. If we do not face up to the challenge of increases in longevity now, we would only have to do so in the near future when there will be less resource available. For those reasons, I cannot support this amendment. The universal state pension link is absolutely vital to putting public service pensions on a fair and sustainable footing. I have complete confidence that, with the appropriate foresight and common sense from employers, it will be deliverable across all the relevant public service workforces.
Finally, Amendment 20 seeks to provide for an independent review of the pension age mechanisms in this Bill. I reiterate that the Government are totally committed to reviewing the pension age, as and when future changes to the state pension age are announced. This was one of the recommendations of the noble Lord, Lord Hutton, and we are sticking to it. I add that the House should be reassured that, when coming to decisions on any changes to the state pension age, Ministers will bear in mind the consequences for public servants. We would also expect member representatives to feed into this separate process. None the less, there are good reasons why this Bill does not provide for the review to the normal pension age provisions, which would follow any state pension age reviews that result in a change to the state pension age. For a start, public service pensions link to the state pension age, not vice versa, so given that work on the state pension age reviews is still in its early stages, and we do not know exactly how it will consider public service schemes, it would be premature to lock down details of the normal pension age provisions at this stage.
More importantly, we have not yet even developed those details—and that is sensible. We should not be determining the parameters for such reviews so far in advance, nor should we be trying to do so. It would be for the Government of the day to consider what is appropriate, beyond of course taking into account any changes in longevity. If that were to involve an independent assessment, so be it. However, again, it would be for the Government of the day to decide if that were appropriate. The Government may already have had all the independent advice that they require on longevity from the wider state pension age review, depending on the final details of that process. If, during the course of that review, there was no representation from the public sector that it wished to be treated any differently from anyone else, the scope of a review would be rather less than if there was a lot of independent evidence and representations being made from the public sector that it was in a different situation from the rest of the workforce—and not just a different situation, but a worse situation. Of course, nobody is going to argue that the public sector should have a differentially higher retirement age. While we could put a bland commitment into the Bill just to review the provisions from time to time, that would not be worth while without being able to include any details. It would carry very little weight and give no more assurance on this matter than the public statements that we have made on our intentions on a number of occasions. I therefore urge the noble Lords to withdraw their amendments.
Lord Kennedy of Southwark
I thank the Minister for his response. I am happy to withdraw the amendment, but it is a bit odd and not really joined-up government to have the previous Fire Service Minister, Mr Bob Neill —I think I am right, but correct me if I am wrong—commissioning a report on firefighters’ pensions for 12 January, less than a month ago, when this Bill is going through. It is not very well organised and I think it should have been done better. However, I hear what the Minister says and, with that, am happy to withdraw the amendment.
Lord Whitty
My Lords, I speak now according to the convention, although it may be more logical for the Government to explain their amendments. My Amendment 49 is also in this group. It is another one of these whereby what appears to be the implication of this Bill, if nothing else is done, is that it would unravel what has been agreed between the LGA and the trade unions on the Local Government Pension Scheme.
Pensions payable by the LGPS are revalued using the Pensions (Increase) Act 1971. The amendment is required to enable the same methodology to be used for revaluation during service to continue once a scheme member is in receipt of their pensions. But there is a snag. The current situation, under Section 1 of the Local Government Act 2003, is that the Best Value Authorities Staff Transfers (Pensions) Direction 2007 requires this to be applied to those in the best value authorities. So under the existing scheme and direction the provisions relate only to those who are in best value authorities. It does not apply to those members of the LGPS who are employed by other local authorities and other members of the LGPS.
The agreement reached on the position beyond 2014 would provide for all LGPS members who are compulsorily transferred to be able to retain their membership of the scheme subject to the valuations provided in the scheme. I thought that the easiest thing to help the Government out of this one would be to tack on to the back end of the repeals process at the end of the Bill, when everybody is packing their bags to go home, something that simply says that we repeal the direction order. I am informed that it is not possible to do so in that form, but that one way or the other the Government intend to repeal the directions order. If the Minister could tell me how he proposes to do that, and preferably when, my particular concern about this group of amendments might be met.
The measure I am discussing is essentially part of the fair play aspects although the directions order covers slightly wider issues. However, the repeal is essential to achieve what I think most of us are agreed should apply beyond 2014 in the case of the local government scheme. I am really asking the Government to tell us how they are going to do the tidying up. If we cannot do it by repealing that order, how can we do it, and how can we do it so that there is no differentiation between LGPS members who happen to be employed by different member funds of the LGPS scheme? I would be grateful if the Minister could tell me that when he winds up. I hope that that will satisfy me.
Lord Newby
My Lords, I start with the amendment of the noble Lord, Lord Whitty. As he says, the LGPS differs from the unfunded schemes in several respects. While the current fair deal does not technically apply to that scheme, a similar principle is contained in the Local Government Act 2003. That Act requires the Secretary of State to make a direction to specify how pension issues are to be dealt with when staff are transferred out from a best value authority.
The noble Lord is understandably concerned to understand how the Government intend to implement the new fair deal policy for the LGPS, given this existing provision. The Department for Communities and Local Government is currently considering how best to do it. Should it prove necessary to amend the 2003 Act to implement the new fair deal policy, I can assure the noble Lord that the Government will do so at the earliest possible opportunity. I hope that I have given him the answers that he was seeking.
As regards the amendment of the noble and learned Lord, Lord Davidson, the Government have stated a number of times—both in this House and the other place—that we are committed to reforming the fair deal. There are provisions in the Bill to facilitate this. Indeed, the government amendments in this group are concerned with fair deal, which I shall come to in a minute, and work is under way to determine how this commitment will be implemented.
However, consultation closed only yesterday on some of the final policy details of fair deal. We are in the final stages of planning for its implementation. Therefore, in our view there is no need to refer to fair deal in the Bill in the way proposed and we believe that the amendment has serious flaws. As drafted, it would commit the Government to bringing forward proposals for ensuring that compulsorily transferred members of public service schemes can remain in those schemes. It would also seem to commit the Government to bring forward the proposals for the purpose of ensuring that compulsorily transferred staff can remain in their schemes, effectively committing government to implementing the proposals. However, it would not be appropriate to give any member of the scheme an unconditional right to remain an active member if their contract of employment was transferred to an independent contractor. While, of course, it is the Government’s aim that transferred employees would have a right to remain in the scheme when transferred out of the public sector, this right cannot be unconditional. While in the vast majority of circumstances it will be appropriate for fair deal to apply, there may be some cases when it would not.
There have been examples in the past, notably during the financial crisis, of highly paid specialist financial staff who have been brought into government for a time-limited period, and then transferred to independent employers. Although it may have been right to offer these staff access to the schemes while working in government, it would not be appropriate to allow them to retain access to the schemes when they leave, especially as the taxpayer is ultimately responsible for paying these pensions.
Similarly, on the wording of this amendment, a member of staff who was transferred out and then voluntarily moved off the public service contract to do purely private work could remain a member of the public service scheme. Again, this would not be right. The public service pension schemes are in place for those doing public service work, not for everyone who was once engaged in public service work at some point in their career.
These examples demonstrate that the implementation of the fair deal is complex. The Government are carefully considering these complexities to ensure there are no unintended consequences when the policy comes into force. Given this, it is the Government’s view that the fair deal commitment should not be on the face of the Bill. However, I can assure noble Lords that the fair deal will be implemented when we have done all the necessary work.
I hope that I can explain why government Amendment 42 is necessary. This amendment is concerned with people who are admitted to a public service pension scheme but who are not part of the main public service workforces listed in Clause 1. For example, it could apply to staff employed by a hospice who are offering services under a contract to the NHS and whose employer would like them to have the advantage of the NHS Pension Scheme. It is important to note that this amendment does not affect any of the main workforces in Clause 1. It can apply only to other people who are admitted into the scheme under the extension power in Clause 24.
Under the proposed new fair deal, a range of private and third sector bodies will be able to participate in these schemes in future. The amendment is concerned with ensuring that the schemes can be appropriately modified to reflect differences in the structure and nature of those diverse bodies. First, the amendment clarifies that scheme regulations may make special provisions in respect of people who are allowed to participate in the public schemes. The health and local government pension schemes already have a wealth of experience in providing for admitted bodies. The special provisions that are currently applied to those schemes include requirements for indemnities, guarantees, additional record-keeping, et cetera. These provisions are needed to ensure that the body meets the costs of participating in the scheme. The amendment would also allow for modifications that have already been made in respect of admitted bodies in the National Health scheme to be carried forward to the new schemes. Such modifications currently relate to about 60,000 scheme members and it is important that these can be maintained.
Secondly, the amendment allows for modifications to be made where bodies are admitted to the schemes in the future. Where scheme regulations provide for it, the responsible authority will be able to issue a direction to modify how the scheme applies to the staff of a body that is brought into the scheme. The NHS Pension Scheme currently makes between 100 and 150 such directions every year. Allowing for modifications to be made via an administrative direction will ensure that the scheme is applied appropriately in each case without the need to legislate for every single one or the delays that that would cause.
The Bill provides that a direction may be made only for permitted purposes. Those are that the modification is necessary to protect the public purse from costs arising from that body participating in the scheme, where additional information requirements are needed to allow the scheme and the risks to be managed properly by the scheme manager or to reflect the nature of the employment or the structure of the employer. This is not a new or novel power. The Secretary of State for Health has had broader powers to modify the health pension schemes since 1967. For those who wish to study the details, those powers are to be found in Section 7 of the Superannuation (Miscellaneous Provisions) Act 1967. The power explicitly set out by this amendment is more restrictive in scope than this existing power, which provides unfettered scope to modify the existing health schemes. The important safeguards set out in our amendment will ensure that any modifications are appropriate. Allowing bodies to participate in the schemes under Clause 24 will usually be as a result of fair deal. In such circumstances it would not be appropriate for modifications to alter members’ benefits in any way. Modifications that relate to fair deal transfers will, therefore, be limited to ensuring that employers meet their liabilities in full or provide the information necessary to run the schemes properly. I hope I have succeeded in explaining why we think that that amendment is necessary.
Amendment 43 relates to the locally administered public service pension schemes. Under Clause 24(3), scheme regulations may specify bodies or persons that may be permitted to participate in the scheme. It is anticipated that the regulations will prescribe the types of body that may be permitted: for example, a body that is providing services related to the main scheme workforce or a body that staff are transferred to under fair deal. Clause 24(5) then provides for an administrative determination to be made to extend the scheme to persons employed by such a body. Clause 24(8) requires an up-to-date list of persons to whom the scheme has been extended.
All these functions sit with the responsible authority. Our amendment allows for the functions in Clause 28(5) and (8) to be delegated to the scheme manager in a locally administered scheme. This is subject to any condition that the responsible authority considers appropriate. This reflects current practice in the local government scheme, in which it is the local authority that determines to admit a body to its pension fund. There are more than 5,000 admitted bodies in the local government scheme, and local authorities are best placed to determine their eligibility to participate in the scheme and to assist in administering the list of those who participate. They will do so within the limits of the scheme regulations set by the responsible authority. In turn, it is the local authorities that will be responsible for managing and administering the scheme for that body. They will collect data, contributions and provide benefit information and pensions to members.
I commend Amendments 42 and 43 to the House.
Lord Whitty
My Lords, I am sorry if this amendment appears to be another bit of LGPS exceptionalism but I hope that it can actually clarify the situation. There is a bit of confusion between Clauses 12 and 13. On my interpretation, Clause 12 applies to all schemes, whereas Clause 13, to which I have little objection, provides for funded schemes. However, if Clause 12 indeed applies to funded and unfunded schemes, it will cause some difficulty for the agreement that has been reached on the new cost-management system for the LGPS. As the clause stands, it does not reflect the dual process required by the LGPS and the separate cost management that was negotiated.
We have received some relatively friendly indications from the Treasury that it recognises this problem and we would like assurances from the Minister that the Government recognise the dual process. The other implication for the LGPS is that it is ahead of the other schemes in terms of the 2014 start date. I would therefore welcome reassurance from the Minister that the ability of the Treasury, at various points that are set out, to override a funded scheme—in this case, the LGPS—would not be applied to a scheme that had its own government-endorsed cost-management process in place. If I can have that confirmation, or something like it, I would not press the amendment. Clarification would also be useful on whether the whole of Clause 12 is indeed intended to apply to funded schemes. I beg to move.
Lord Newby
I hope that I can go at least some way in giving the noble Lord the reassurances that he seeks. The Government recognise the unique nature of the LGPS and that the cost-control mechanism for that scheme must reflect it. We have therefore developed a dual process to which the noble Lord referred, which will give scheme stakeholders additional flexibility to manage costs, while allowing the Government to retain final control over the costs and design of the scheme.
Clause 12 will provide for the Government to retain this overall control. They will use these provisions to put in place an automatic backstop which will apply if the scheme costs become unsustainable. The additional flexibilities that we will give to scheme stakeholders in their management of costs will operate alongside this backstop. As the noble Lord knows, this mechanism has been developed after extensive discussions with the LGA and the trade unions. We are confident that it will work and that the process envisaged is not inconsistent with the provisions in the Bill.
I know that this is not the noble Lord’s intention, but the effect of the amendment would be to remove the backstop that is part of the agreed mechanism. Given the importance of the cost-cap mechanism in ensuring the future sustainability of all the schemes, it is vital that the LGPS is covered by these statutory provisions in exactly the same way as the other schemes. All schemes need this mechanism to ensure that they are a sustainable way to provide good pensions that last. There is simply no reason to exempt the schemes. I hope that that will help to satisfy the noble Lord.
Lord Whitty
My Lords, I am grateful to the Minister, who clearly recognises the cost-management system that was agreed by the stakeholders of the LGPS. That is now on the record. I am not attempting to sabotage a backstop. However, Clause 12 looks to be a rather more interventionist clause than a backstop would imply. Nevertheless, if it is simply a backstop and the noble Lord recognises that the agreed system will work and will have government backing, then I will beg leave to withdraw the amendment.
Lord Davidson of Glen Clova
My Lords, the aim of the amendment is to push back to 2016 the relative closing date for the Scottish LGPS.
As observed in Committee, it was thought that a greater time would be required for the Scottish scheme to be renegotiated, for scheme regulations to be drafted, for consultation to take place and for implementation to be laid down. There is certainly a view in Scotland that more time will be required for this process. Indeed, in a letter from the Scottish Finance Secretary to the Chief Secretary dated 7 September last year, it is stated that the date was “exceptionally challenging” if it were to be in 2014 or 2015. If the Minister can assure the House that the Scottish Government are now confident that they can meet the current timescale, and that trade unions and employers in Scotland have been consulted, I would plainly be in a position to reconsider whether the amendment should be advanced. At this point, however, pending what the Minister has to say, I beg to move.
Lord Newby
My Lords, the purpose of the amendment is extremely straightforward, and the noble and learned Lord has asked me a question about the attitude of the Scottish Government. As I explained in Committee, the Scottish Government may think that the timetable is challenging but they have not asked for the extension of time that the amendment proposes. There has been a series of correspondence between Westminster and the Scottish Government in which there have been no calls for a delay. In fact, when the Chief Secretary wrote to the Scottish Government asking if there were any particular amendments that they would like us to consider tabling, a request for a delay was not specifically made. I should take this opportunity to reiterate that we do not believe that a delay is necessary. There is ample time—just over two years—for the Scottish Government to prepare before the existing schemes are closed. These important reforms do not come as a surprise either north or south of the border.
The noble Lord, Lord Hutton, recommended back in March 2011 that the key scheme design features should be part of a UK-wide policy framework. Everything that has been done since then, for almost two years now, has proceeded on that basis. Furthermore, the new Whitehall-administered schemes provide an excellent basis for the Scottish Government to consider when finalising their scheme designs. We are not suddenly asking the Scottish Government to start these reforms from scratch.
I should also reiterate the financial implications of introducing a delay. This would result in hundreds of millions of pounds of additional liabilities being accrued in the Scottish schemes. These additional costs would have to be met from the Scottish budget at the expense of Scottish jobs and services, something that I am sure all noble Lords would want to avoid. In addition to the cost implications, we should also consider the disadvantages that Scottish public service workers on lower and middle incomes would face if the reforms were delayed. They would continue to subsidise the pensions of high flyers for another year. Taking all of this into consideration, I hope that the noble Lord would feel that it would be inappropriate for us to accept this amendment.
Lord Davidson of Glen Clova
I have listened carefully to what the Minister has said. It may be that the Scottish Government are treating this with a degree of insouciance because they may recognise that, after a certain event in 2014, they may have quite a lot of free time on their hands. At this point I shall withdraw the amendment.
Lord Newby
“6A A scheme under paragraph 7A of Schedule 10 to the Rent Act 1977.
Exception: injury benefits and compensation benefits”
Lord Newby
“1A A scheme under paragraph 7A of Schedule 10 to the Rent Act 1977.
Specified benefits: injury benefits and compensation benefits”
Lord Newby
“(ii) such earnings as scheme regulations for the new scheme may specify, being earnings derived by the person from the new scheme service, are to be regarded as derived from the old scheme service (subject to sub-paragraph (3)).(3) The amount of the earnings that are to be regarded as derived from the old scheme service must not be materially less than the amount of the earnings that would have been the person’s pensionable earnings derived from that service had it ended when the new scheme service ended.”
Lord Newby
My Lords, these are minor amendments that have been urged on us by scheme members. They increase the level of flexibility given to schemes and protect the value of the final salary link for benefits that have been accrued in the current schemes. The amendments concern the definition of pensionable earnings to be used in the new schemes and for the purposes of the final salary link. The current drafting ties the definition of pensionable earnings for the use of the final salary link to the definition of pensionable earnings for the new schemes. We have recognised, however, that in some instances this might not be desirable; for example, the differences between the calculation of career average and final salary benefits might make a shared definition incongruous.
Furthermore, we have listened to concerns that imposing a shared definition means that the value of final salary benefits could conceivably be reduced. This would go against the spirit of the Government’s commitments on the protection of the final salary link. These amendments, therefore, mean that schemes may use the same or a different definition of pensionable earnings for the purposes of the final salary link as that used for the purposes of the new scheme. This does not preclude the option of applying the definition of pensionable earnings that is used in their existing schemes for the purposes of the final salary link, if desired.
However, to make sure that the value of the final salary link cannot be undermined by using a new definition, the amendments contain a backstop protection, which is that the definition of pensionable earnings for the purposes of the final salary link may not result in the amount of earnings being materially less than they would have been had the definition provided for in the old scheme been applied when the new scheme service ended. I hope that noble Lords will find these amendments to be a suitable resolution to this issue.
Paragraph 3 of Schedule 7 sets out which periods of time should be disregarded in determining whether someone has continuity of employment for the purposes of retaining their final salary link. First, any gap, or gaps, of five years or less where the person is not a member of a public service or public body pension scheme should be disregarded. This is directly in line with the recommendations of the noble Lord, Lord Hutton. It allows public servants, for example, to take carer’s leave or to gain experience in the private or voluntary sectors without seeing a detrimental impact on their final salary pensions by losing this link to their future public service salary.
Secondly, and most pertinently to Amendment 30, any gaps of any length of time should be disregarded if a person was in a different public service or public body pension scheme. Again, this is to allow members to gain experience in different areas and to move from one area of public service to another. Crucially, it is also part of the Government’s very clear commitment to public servants to honour their final salary benefits. The amendment in the name of the noble Lord, Lord Whitty, would cut across that commitment. It would be unfair to exclude current members of the local government scheme from final salary link protections, which are being given to other public service workers. Additionally, it would create a barrier to movement between local government and other public service and public body employment.
Under paragraph 2 of Schedule 7, members of existing public service and public body final salary schemes are able to maintain their final salary link when they move between schemes by transferring their rights to benefits out of their old final salary schemes into their new employer’s old final salary scheme. This amendment would not affect this. However, members of local government schemes should not have to proactively transfer their benefits out of the LGPS to ensure benefiting from the Government’s commitment on protecting their final salary benefits, especially where other public service workers do not have to do this. I hope that the noble Lord, Lord Whitty, will withdraw his amendment.
Lord Whitty
My Lords, this is complicated territory. The way in which the Minister described the implications of my amendment is not the way in which I understand it. The LGA and the unions are concerned that Schedule 7, as it stands, could reintroduce an additional complication —an additional cost—into the LGPS scheme, which was expressly removed by the agreement between the LGA and the unions. That relates not so much to movement between the LGPS employer and different public sector employers but to the situation with people who have been employed by one LGPS employer, who then leave and come back. I do not specifically stand by the wording in the amendment, so I shall withdraw it shortly. However, the Government need to make it clear where the responsibility lies. It seems to us that responsibility for those in pensionable public service could see the original employer being liable rather than the final employer. That would give rise to unknown liabilities lying with the original employer and not with the employer of the individual once they return to LGPS employment.
This could carry on over a substantial number of decades, so the administrative costs of an employer trying to find out where their ex-employees have moved would be quite substantial. It is difficult to estimate, but some actuaries are telling the LGA that it could cost an additional 1% to the scheme. If that were anywhere near an accurate estimate, it would seriously jeopardise the 19.5% cost-management figure that has been built into the LGPS and would increase the overall cost to the LGPS over and above the ceiling.
I understand some of what the Minister says but, having outlined the dilemma, perhaps he could suggest some other way of doing it. At the moment, there is potentially a quite unnecessary cost loaded on to the management of the LGPS. As I say, actuaries are telling us that that could amount to a full 1% of the total cost. Even if it were half that figure, it would be a serious issue. It needs to be solved. My amendment may not solve it, but I would be grateful for more guidance from the Minister. Perhaps he could have some discussions with the LGA on this issue before the passage of this Bill is completed.
Lord Newby
My Lords, we realise that there is concern about the potential costs involved in this policy, but we do not believe that it generates unreasonable costs. It is about offering fairness and consistency. The likelihood is that most people who leave local government service for prolonged periods of time to work in different public service employment would not expect to return. It is therefore most likely that they will transfer their final salary benefits to their new employer’s final salary scheme. However, if liabilities for certain local government funds are increased by the risk of a final salary link attaching to future employment with different local government employers, it would be a matter for individual funds to make appropriate financial arrangements, with the help of scheme regulations if required. Undoubtedly, further discussion will be required on exactly how this should be carried forward. However, we do not believe that it is an insuperable problem for a very good feature of the scheme. We hope very much that negotiations and discussions will take place and that some of the fears of local government actuaries will turn out to be unfounded.
Lord Newby
“(ii) such earnings as scheme regulations for the new scheme may specify, being earnings derived by the person from the new scheme service, are to be regarded as derived from the deemed transfer scheme service (subject to sub-paragraph (2A)).(2A) The amount of the earnings that are to be regarded as derived from the deemed transfer scheme service must not be materially less than the amount of the earnings that would have been the person’s pensionable earnings derived from that service had it ended when the new scheme service ended.”
Lord Newby
Lord Newby
“Procedure for retrospective provision
(1) Where the responsible authority proposes to make scheme regulations containing retrospective provision which appears to the authority to have significant adverse effects in relation to the pension payable to or in respect of members of the scheme, the authority must first obtain the consent of the persons referred to in subsection (3).
(2) Where the responsible authority proposes to make scheme regulations containing retrospective provision which appears to the authority—
(a) not to have significant adverse effects as specified in subsection (1), but (b) to have significant adverse effects in any other way in relation to members of the scheme (for example, in relation to injury or compensation benefits),the authority must first consult the persons specified in subsection (3) with a view to reaching agreement with them.(3) The persons referred to in subsections (1) and (2) are the persons (or representatives of the persons) who appear to the responsible authority to be likely to be affected by the provision if it were made.
(4) The responsible authority must, in a case falling within subsection (1) or (2), lay a report before the appropriate legislature (as defined in section 22).
(5) In a case falling within subsection (1) or (2) there is no requirement to consult under section 21(1).”
Lord Newby
“(b) section (Procedure for retrospective provision)(1) or (2) (procedure for retrospective provision having significant adverse effects) applies.”
Lord Newby
“(6) By virtue of a determination under subsection (5) the scheme regulations then apply to the persons to whom the determination relates as they apply to other persons to or in respect of whom pensions and other benefits are provided under the scheme (or such class of other persons as may be specified in the determination).
(7) Subsection (6) is subject to—
(a) any special provision made in the scheme regulations, and(b) a direction under subsection (7A). (7A) Scheme regulations made under subsection (2) or (3) in relation to any persons may include provision authorising the responsible authority by direction to modify provisions of the regulations in their application to those persons for the purpose of—
(a) securing appropriate protection against additional costs to the scheme that might result from the application of the scheme regulations to those persons, (b) obtaining information about those persons, their employers and other relevant persons, or(c) taking appropriate account of—(i) the arrangements under which those persons are employed, and(ii) the organisational structures of their employers.”
Lord Newby
(a) persons within the description of persons specified in section 1(2) for which the responsible authority may make the scheme, and(b) any other persons to whom the scheme relates by virtue of section 25.”
Lord Newby
My Lords, I turn to two government amendments to Clause 25. Amendment 44 is intended to remove any ambiguity as to the persons to whom Clause 25 applies. It has always been the Government’s intention that this clause should relate to any person who qualifies for a public service pension scheme under Clause 1(2) of the Bill, as well as any other persons to whom a scheme has been extended under Clause 24—that is, all those who are eligible for a public service scheme and not just those who are currently members of such a scheme. Doubts have been expressed about whether the clause has that effect. This amendment sets out the Government’s intentions unambiguously.
Noble Lords will remember that at Third Reading we debated a proposed amendment to Clause 25 moved by the noble Lord, Lord Whitty. Noble Lords were concerned that the clause was too general in its scope and could allow local authority employers to undermine the Local Government Pension Scheme by offering alternative pension arrangements as a matter of course. The noble Lord therefore sought to exempt the Local Government Pension Scheme from Clause 25. I gave assurances in that debate that these powers did not allow eligibility for the main schemes to be overridden, nor did they allow employers to make any alternative arrangements mandatory. I stand by those assurances. In short, Clause 25 does not allow scheme managers or employers to act in the unscrupulous manner that a number of noble Lords feared.
However, I am aware that some people, particularly in the local government sector, still have a lingering nervousness about the clause. The LGA and others have explained that, while they accept that the clause cannot lawfully be used in this way, they remain concerned that some employers will misrepresent it. To put the matter beyond doubt, the Government tabled this amendment, which makes the use of Clause 25 subject to any provisions contained in scheme regulations. It makes it clear that provisions in scheme regulations take priority. Furthermore, it will be open to scheme regulations to restrict how the Clause 25 power is used in the scheme, if that is thought appropriate. My officials discussed the amendment with the LGA and I understand that it is content with this approach. I trust that this provides a further level of reassurance. I beg to move.
Lord Whitty
My Lords, I simply thank the Minister for tabling these amendments. Amendment 45 in particular clarifies the position significantly.
Lord Newby
“( ) Subsection (1) is subject to any provision made in the scheme regulations for the scheme that restricts or otherwise affects the power to make payments under that subsection.”
Lord Newby
“15A In section 11 of that Act (provision against pensions under two or more judicial pension schemes), at the end there is inserted—
“(5) This section does not prevent a scheme under section 1 of the Public Service Pensions Act 2013 having effect in relation to a person”.”
Lord Newby
“Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10)In Schedule 4 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (transfer of employees etc of Legal Services Commission), in paragraph 4 (pension schemes), after sub-paragraph (2) there is inserted—
“(2A) Where an individual who is employed in the civil service of the State by virtue of paragraph 1(1)—
(a) was a member of a relevant LSC scheme immediately before the transfer day,(b) had been a member of that scheme immediately before 1 April 2012, and(c) becomes, on or after the transfer day, a member of a civil service scheme,the individual is to be regarded, for the purposes of section 18(5) of the Public Service Pensions Act 2013, as having been a member of the civil service scheme immediately before 1 April 2012.(2B) In sub-paragraph (2A)—
(a) “relevant LSC scheme” means a scheme made or treated as made under paragraph 10(1) of Schedule 1 to the Access to Justice Act 1999;(b) “civil service scheme” means a scheme under section 1 of the Superannuation Act 1972.””
Lord Newby
My Lords, this amendment rectifies a small oversight that occurred as a result of the large number of moving pieces in the machinery of government and it corrects a small injustice that might otherwise have affected staff in the Legal Services Commission. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, these members of staff will become civil servants from 1 April this year. The Government’s intention is, and always has been, that they will be treated in exactly the same way as other civil servants. This includes access to the transitional protection offered under the pension reforms.
Unfortunately, without this amendment the staff of the Legal Services Commission would fall between two stools. They would not be members of a public service scheme that could be included in Schedule 10 to the Bill, nor would they have been members of the Civil Service scheme on 1 April 2012. They would therefore not have been eligible for the transitional protection for those close to their current normal pension age.
I should add that this is an isolated issue. The staff of the Legal Services Commission are the only members of the Civil Service scheme who would have been left out in 2015. This is because they are the only ones to transfer in between 1 April 2012 and the enactment of the Bill. This amendment rectifies that very small problem. I beg to move.
Lord Dubs
My Lords, the amendment stems from the situation that arose on 31 March 2010 when Jarvis, a rail maintenance company, went into administration. The amendment is not intended to make any new demands but simply to close what I think was an unforeseen loophole in the Railways Act 1993. Schedule 11 to that Act was intended to provide railway workers employed by British Rail at the time of rail privatisation with the right to a protected pension. This amendment is intended to restore that right.
In other instances where rail companies collapsed or gave up contracts, the workforce had always been transferred to other companies, but this did not happen with Jarvis, due to complex reasons related to the application of the transfer of undertakings regulations. Nevertheless, many of the Jarvis workers who had been employed by British Rail at the time of privatisation rightly expected that at least their pensions would be protected by the 1993 Act. It was then discovered that the Act does not cover cases of companies going into administration, which meant that these workers simply lost out. It is estimated that some 650 former Jarvis workers have been affected, and that the cost of meeting the pensions shortfall that would arise from accepting this amendment would be in the region of £400,000. The amendment would also honour the spirit of the Railways Act 1993 and ensure that in the unlikely event that another successor company to British Rail went into administration and the work was not transferred to another company, any affected workers who were also employed by British Rail in 1993 would have their pensions fully protected.
I am seeking to put right something that was not foreseen and which clearly represents an unfairness and an injustice. Jarvis’s former BR employees are not receiving the protection that was promised at the time of privatisation. The major flaw in the protection order is that it is an obligation on the employer, but where the employer disappears it seems that there is no entity to take up that obligation. That is obviously a serious gap in the original privatisation process, and the former BR members employed by Jarvis were misled by the UK Government as a result. They expected to get the pensions to which they were entitled, instead of the much lower one they ultimately received.
I do not think that this amendment was debated in the House of Commons because it was not reached. If it was passed, it would mean that the British Government had honoured an obligation and a promise made at the time of privatisation that employees’ pension rights would be protected so that they were at least as favourable as the rights they enjoyed under the BR pension scheme. The new clause would provide the protection sought.
However, I understand that there is another option which the Minister may prefer. Under the terms of the Railways Act 1993, the Government could introduce an order to rectify the situation. The Minister therefore has two options. He can either accept the amendment or he can achieve the same end in another way. This is a matter of honour and integrity, and I think it is only right that several hundred workers should not be penalised due to something that was really only an administrative oversight. I beg to move.
Lord Newby
My Lords, as the noble Lord has explained, his concern relates to a situation that has arisen for people covered by the railways pension scheme, which is a very different kind of scheme from those covered by this Bill. That scheme was created as a railway industry-wide pension scheme for the multi-employer railway industry following privatisation. It is a unitised fund made up of a number of different sections, only one of which is underwritten by the taxpayer. Moreover, the scheme focuses predominantly on those working for private sector employers in the rail industry. Conversely, while some of the public service pension schemes in scope of the Bill may admit certain private or third sector organisations, they are predominantly focused on workers in the public sector. I will attempt to respond briefly to the points raised in the noble Lord’s amendment, but I am afraid that the primary focus of his attention should be my right honourable friend the Secretary of State for Transport.
The amendment would create a liability for the taxpayer to underwrite any shortfall in a railways pension scheme section. This underwriting would be required if the section develops a shortfall as a result of the insolvency of a participating employer or former employer who is the employer or former employer of a “protected person”. Protected persons are beneficiaries of the section who still retain certain rights deriving from British Rail days and enshrined in regulations made under the Railways Act 1993 in relation to their pension: for example, if their employer is obliged to provide pension scheme rights “no less favourable” than the relevant pension rights in their former designated pension scheme from British Rail days.
Let me set out the current position. As I have said, the railways pension scheme is a unitised fund that is divided up into sections. There tends to be one section for each employer. Most participating employers in relation to sections of the pension scheme are private sector railway operating companies. Only two sections of the scheme benefit from a solvency guarantee from government. The first of these is the “1994 Pensioners Section”, a closed section that deals primarily with the residual, deferred and pensioner members of the former British Rail pension schemes at the time of privatisation. The second is the “BR Section”, a section comprising a small category of contributing members and beneficiaries deriving from the former British Rail pension scheme. Even if the amendment were within the scope of the Bill, the Government do not believe that it is appropriate to amend the existing legislation in relation to railway pensions, as set out in the Railways Act 1993 and regulations made under it, and create a further liability for the taxpayer, as the amendment seems to propose.
The noble Lord has tabled the amendment specifically because of the Jarvis case. One employer, Jarvis, made use of the railways pension scheme, but has become insolvent. In a situation where the sponsoring employer of a section of the railways pension scheme no longer supports the pension’s scheme, there are complex legal requirements affecting how the scheme should operate in the future. The trustee of the RPS has been working with the Pension Protection Fund to understand whether the three sections of the RPS affected in this case are eligible for support from the Pension Protection Fund. The three sections are currently still in an assessment period. In the mean time, the trustee retains responsibility for paying benefits, although the Pension Protection Fund provides guidance on how the trustee should do this.
I hope that my explanation has provided some clarity for the noble Lord, although I appreciate that he might not have got the help he seeks. However, I hope that he will understand me when I say that the railways pension scheme is not a public service pension scheme in the same way as those being legislated for here, and that this is not the appropriate place to deal with the very important matters he has raised.
Lord Dubs
The Minister has given me a fairly complicated explanation and I think I would not be out of order if I said that I want to study it in Hansard rather than comment on it directly, particularly since I am not an expert on the intricacies of this issue. However, the outcome is disappointing. No one is challenging the principle that these Jarvis workers should have been better looked after than they were, given the commitments that were made at the time of railways nationalisation, so what has happened is rather unfortunate. This does not seem to be a fair outcome, whatever the technical process by which the Minister has reached his conclusion.
I should like to make two comments. The Minister has suggested that I should address my comments to the Secretary of State for Transport. I hope that he will be helpful to me if I redirect my arguments to the Secretary of State. I have no Bill under which to do that, although there may be other ways. I look forward to receiving the Minister’s help. Also, under the terms of the Railways Act 1993 maybe the Government could introduce an order to rectify the situation. The Minister did not comment on that suggestion, but I wonder whether he could take it away as an alternative to the other option he put forward. However, in the circumstances, I beg leave to withdraw the amendment.
Lord Newby