Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023

Baroness Drake Excerpts

Tuesday 14th November 2023 Grand Committee

[Lord Palmer of Childs Hill (LD)]

My Lords, I thank the noble Viscount for his complete exposé of all the problems that have existed and how the Government are trying to rectify them. Our Benches agree with these SIs. There is no problem with them. I see other noble Lords have lots of notes; I know from experience that I can be brief knowing that they will deal with the minutiae. This seems to be more rules bringing old EU law into domestic legislation. These SIs raise broader points about discrimination in pensions, which is roughly the scope of the legislation. However, as usual, in bringing old EU laws into place we are missing the opportunity to make pledges to follow the Parliamentary and Health Service Ombudsman’s recommendations. It reports conversations with WASPI—Women Against State Pension Inequality—women. I would appreciate it if the noble Viscount could comment on how that is going to be dealt with.

Will the noble Viscount give the committee an update on the LEAP—legal entitlement and administrative practices—exercise through which the Government are doing a corrections exercise for historic errors and underpayments to women? I understand that these processes are taking place, but I do not know quite how far they have gone or how quickly they are going or when the majority of cases will be dealt with. I hope that the noble Viscount can put a bit of meat on that and give us some timeframe for LEAP and WASPI women, which are two issues close to my heart.

[Baroness Drake (Lab)]

My Lords, I declare my interests set out in the register as a pension scheme trustee. I welcome these statutory instruments and thank the Minister for the clarity of his explanation of their history. The equal treatment by occupational pension scheme regulations before us maintain the protection of the right not to be discriminated against on the grounds of sexual orientation in relation to pension benefits, particularly survivor benefits, which would be lost on 31 December 2023 but for these regulations. That is a pretty compelling reason for welcoming them.

Those protections were originally secured through the EU framework directive for equal treatment and confirmed by our Supreme Court in the Walker case. They apply to occupational pension scheme benefits and to compensation to beneficiaries of pension schemes that enter the Pension Protection Fund.

My first thought was: gosh, the Government are taking things to the wire, time-wise, given that the House rises on 19 December. It does raise worrying concerns about what other pension protections for UK citizens, previously preserved by Section 4 of the European Union (Withdrawal) Act, will be lost because of a failure, whether by intent or neglect, to meet the 31 December 2023 deadline for changes to domestic legislation to be made for them to be retained. What level of confidence can the Minister give the House that all protections of pension benefits for members and beneficiaries preserved by Section 4 of the European Union (Withdrawal) Act are or will be captured in changes to domestic legislation prior to 31 December? Is it intended that some of those protections will not be preserved? If so, which are they?

These regulations also restate retained EU law on the right to equal pay between men and women where discrimination arises from the legislation on guaranteed minimum pensions by amendments to the Equality Act and the Pensions Act 2004, so the right continues to apply to occupational schemes and PPF payments. Very importantly—it is certainly close to my heart—the regulations retain the intent of the 2004 ECJ judgment of Allonby to nullify the requirement for a real-life opposite-sex comparator to demonstrate unequal treatment. Instead, a notional or statistical comparator can be used. That is such an important judgment and it demonstrates the value of the many ECJ judgments that contributed so importantly to progressing gender equality issues. As my noble friend was reflecting, so was I; I was actually a commissioner of the EOC, which supported the Allonby judgment at the time the ECJ pronounced its decision.

Unless the amendments to legislation are made by 31 December, this particular important protection is lost. Again, that is another compelling reason for welcoming these regulations. What level of confidence can the Minister give us that all rights to equal pay between men and women in the payment of pension benefits to members and beneficiaries, previously preserved by Section 4 of the European Union (Withdrawal) Act, are or will be retained in changes to domestic legislation prior to 31 December? While welcoming what we can see, we are nervous about what we cannot see, so we seek assurances on that.

The regulations before us on PPF compensation are also necessary because again, under the Retained EU Law (Revocation and Reform) Act 2023, without them the more generous PPF compensation payment calculations, which flow from the 2018 Hampshire judgment from the European court, would be lost. So too would the effects of the further clarifying 2020 Hughes judgment in the High Court, which was to disapply the then-existing cap on PPF compensation to those below their scheme’s normal retirement age, when the employer became insolvent. The High Court considered that it constituted unlawful age discrimination. For the intent of these judgments to remain, the regulations before us are required by the deadline of 31 December 2023, and of course there is an obvious and compelling reason why they are welcome.

It is very fortunate that the Government decided as policy to retain the effects of these judgments. It would have been a pretty poor show had they not, given the impact on individuals—and particularly so, given that the PPF is currently well funded, so much so that it is reducing its levy. We are very dependent on government to identify those elements of retained EU law to be retained in domestic law. What assurance can the Minister give that every element of retained EU law that impinges on the eligibility of pension scheme members for PPF compensation and the level and value of that compensation will be retained in domestic law after December 2023?

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I think I have covered almost all the questions, but I suspect that there may be some more. As ever, I will need to read Hansard carefully, not least to be sure that I pick up the questions from the noble Baronesses, Lady Drake and Lady Sherlock.

[Baroness Drake (Lab)]

I will need to read very carefully what the Minister said—hopefully it will cover all of the points, but, if not, I will drop him a note.

[Baroness Sherlock (Lab)]

On that last point, the Minister mentioned the Private Member’s Bill, but my question was actually about when the Government were planning to implement its provisions—perhaps he could give me a steer on that. I would be grateful if he would read Hansard because, if he thinks that he has answered the questions, I perhaps did not shape them as precisely as I had intended. Could he have a look at that and then come back to me?