Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) (Amendment and Revocation) Regulations 2020

Baroness Drake Excerpts

Wednesday 21st October 2020 Lords Chamber

[Baroness Drake (Lab) [V]]

My Lords, I welcome these regulations, because they give the PPF the ability to exercise creditor rights across the full range of employers in moratoriums and restructuring plans where there is a PPF-eligible DB pension scheme.

There have not yet been any cases where a moratorium has been implemented for a business with an eligible scheme, so we have no case studies to judge how these measures are working in practice, including the potential for gaming that the new system introduced under the Corporate Insolvency and Governance Act. The Government did amend the Act to give the Secretary of State powers to amend the regulations in response to the emergence of perverse behaviours, but I want to pursue an issue which I raised at the time and which was never really answered.

The Corporate Insolvency and Governance Act and these regulations sit alongside the Pension Schemes Bill, which is currently in the Commons. Clause 107 of that Bill introduces new criminal offences if the conduct of employers and other persons, and entities such as banks, trustees and advisers, has a detrimental effect on the schemes such as the avoidance of the recovery of the whole or any part of the employer’s debt. That opens up the possibility that what may be considered lawful actions under the Corporate Insolvency and Governance Act could subsequently be considered offences under the Pension Schemes Bill. If a moratorium takes place and a restructuring plan or insolvency follows, the pension scheme’s positions will be weakened relative to some other creditors because the scheme’s full Section 75 debt is not triggered, and unsecured finance debt has super-priority status, outranking the pension fund debt and outranking pension liabilities in subsequent insolvency. That finance debt includes shareholder loans, inter-company loans—including from a director or parent company—as well as arm’s-length regulated activities and bank debts. During a moratorium, those financial debts continue to be payable, but pension deficit contributions do not. Therefore there remains a real risk of novel forms of moral hazard including, as the noble Baroness, Lady Bowles of Berkhamsted, observed in this House on 23 June, when commenting on the poor behaviours that could occur,

“behaviour that is reprehensible but not, in the end, prohibited or even limited to reasonable amounts.”—[Official Report, 23/6/20; col. 138.]

A moratorium will become the point at which discussions about a restructuring deal begin, and will involve trade-offs. If the PPF or the Pensions Regulator considers either at the time or subsequently that an aim of an employer, parent company or other parties in seeking a moratorium and subsequent insolvency or restructuring plan was the avoidance of the employer’s debt, which legislation takes precedence, the Corporate Insolvency and Governance Act or the new Pension Schemes Bill? Would the regulator be able to use its enhanced powers to acquire information over and above that sent out to creditors during a moratorium? What would be the implications for any super-priority status granted or restructuring plan agreed or proposed where such a challenge by the regulator was made? Any clarity the Minister can provide will be helpful.

Pension Scams

Baroness Drake Excerpts

Wednesday 14th October 2020 Lords Chamber

[Baroness Drake (Lab) [V]]

My Lords, even where a key risk to their savings is identified and information and red-flag warnings are given to the individual, they can still transfer their pension, and too many do, regardless. Pension providers and trustees have few, if any, powers to stop this. Will the Government extend the powers of the regulator to allow an override of the individual’s statutory right to transfer in the event of a suspected scam, thereby safeguarding their savings and future well-being?

[Baroness Stedman-Scott (Con)]

I am happy to confirm to the noble Baroness that the Minister for Pensions has written to the chair of the Work and Pensions Select Committee about this—I will place a copy of his letter in the House of Lords Library—and I can confirm that the Government are already taking further legislative action through the Pension Schemes Bill. I say again that the Minister for Pensions is quite prepared to meet noble Lords to discuss this issue.

Social Security (Up-rating of Benefits) Bill

Baroness Drake Excerpts

2nd reading
Tuesday 13th October 2020 Grand Committee

[Baroness Drake (Lab) [V]]

My Lords, I congratulate the noble Lord, Lord Field, on his excellent maiden speech. He has made an outstanding contribution to the public debate on social security and pensions. His interrogation of the players on the funding of the BHS pension scheme is the stuff of legend. I am so glad that he is now such an asset to this House. I also look forward to hearing from the noble Baroness, Lady Stuart.

I support this Bill because it allows the Government to increase the rate of particular pension benefits from 2021-22, if average earnings do not increase. References to uprating benefits in the 1992 Act are to prices or earnings, depending on the benefit. The triple lock is a Government manifesto commitment and, therefore, subject wholly to their discretion. But that the Bill is needed is a stark reminder of what is happening to earnings, particularly in the private sector. The Office for Budget Responsibility predicts average earnings will fall by 7% this year, which is not surprising, and that earnings could see an 18% increase next year which, if correct, would put the triple lock under an intense spotlight.

Covid-19 has undoubtedly weakened the economy and Brexit will present further profound changes for business. Yet 10 years after the financial crisis in 2008, median real earnings were still 3% below their 2008 level and there was record low productivity growth. Either way, such outcomes will raise the heat of the debate on the uprating of benefits. Is it now the Government’s view that their commitment to the triple lock and uprating of state pensions in its current form may not hold, year on year, over the next few years?

Recent pension debates have focused on auto-enrolment. I warmly welcome the Chancellor’s commitment to maintaining workplace pension contributions throughout the different job support measures that he has introduced, including in Kickstart, which is targeted on the young unemployed. That shows real commitment. But the reality is that the state pension will remain the dominant source of retirement income for millions of pensioners now and long into the future. It is important that the uprating of the state pensions does not become a political football and that its very long-term strategic role is not lost: that of setting a firm foundation on which ordinary people can rely—I stress ordinary people—when saving from their wages into a workplace pension to build a better retirement income.

DWP statistics revealed that in 2018-19 benefit income, including state pension, was the largest component of the total gross income for pensioners, and that increases considerably as pensioners age. Average incomes of single pensioners were slightly lower in 2018-19 than in 2009-10. Pensions Policy Institute figures reveal that those with below median retirement income receive on average half their income from the state pension alone, excluding other benefits. The new state pension is currently worth 24% of national average earnings, 2% less than the basic state pension peak of 26% in 1979. Those eligible for state pension prior to the 2016 introduction of the new state pension do not benefit from the triple lock applied to their full state retirement.

I give that setting because a cohort of retired people are clearly better off, and that has to be addressed, but it should not affect the perceptions of the financial position of pensioners as a whole. For the top fifth of pensioners, the largest source of income was their occupational pension and they received a larger percentage of their income from earnings. Intergenerational concerns may in many cases be better addressed through the tax regime and the national insurance rules for those working over the state pension age, rather than weakening the state pension as a firm foundation for saving by millions of ordinary workers. That could be regressive, hurting those on lower and moderate incomes the most and having the least impact on those who rely so little on it because they have such a large alternative source of income.

The DWP Secretary of State said that the Bill would allow

“potential increases for the poorest pensioners who are in receipt of pension credit”.—[Official Report, Commons, 1/10/2020; col. 559.]

There are some 1.5 million claiming pension credit; many women do so but many poor pensioners, sadly, do not even claim. Many will be feeling isolated and vulnerable and the winter months are still to come. In my view, the Government should significantly uprate pension credit, which is wholly targeted on the poorest pensioners. There are precedents for applying higher cash increases to the guaranteed pension credit, and I hope that the Government will set another such positive precedent. What are the Government’s thoughts on the uprating of pension credit?

Can the Minister also give some indication of the Government’s timeline and intentions for the annual uprating of other social security benefits, given that people have economic anxieties and there is rising unemployment—we have just heard the figures today—along with falling earnings and hours of work? The Government temporarily boosted universal credit for families during the crisis, but they risk undoing this protection for the poorest families at the time when they need that boost the most. The benefit cap meant that 124,000 families on universal credit did not receive the full £20 per week benefits increase; now thousands will see a fall in their benefit as the grace period runs out. The Resolution Foundation’s forecast is that the poorest families will suffer a huge 7% fall in income if the £20 per week increase is removed in April. The Government simply cannot go on claiming that we are all in this together when retaining the benefit cap in these dire circumstances. A review of taxes for the wealthy was taken off the table but removing the £20 from April was nailed to the floor. That certainly is not “all in this together”, so it would be of value if the Minister could give some indication of the intentions on the uprating of other benefits.

Pension Protection Fund (Moratorium and Arrangements and Reconstructions for Companies in Financial Difficulty) Regulations 2020

Baroness Drake Excerpts

Monday 14th September 2020 Grand Committee

[Baroness Drake (Lab) [V]]

My Lords, I welcome these urgently needed regulations so that the PPF can exercise creditor rights as the trustee of a defined benefit pension scheme in the event of a moratorium or restructuring proposal. The regulations allow the PPF involvement in discussions, processes and court access with significant implications not only for the members of a particular scheme but for all existing and potential members of the PPF lifeboat and employer levy payers.

The exercising of creditor rights by the PPF in consultation with trustees reflects what happens now in other relevant insolvency and restructuring events. They evolved from the Pensions Act 2004, and the Government have rightly recognised the moral hazard in leaving powers to exercise creditor rights wholly with the trustees. The trustees may not have the resources and power that the PPF can bring to bear. The PPF considers the interests of a scheme and the wider interests of all DB scheme members. There will be anxious pension scheme members at this very moment who are taking comfort from the PPF’s very existence. The trustees could, for example, sign up for a high-risk deal on the basis that it failed the PPF would ensure a minimum level of protection for scheme members and leave the lifeboat to inherit a greater deficit. Giving these powers to the PPF allows it to balance all interests—a good outcome for scheme members, mitigating subsequent large claims on the PPF or perverse attempts to dump pension liabilities.

I refer again to the Arcadia case. The original CVA proposed to cut deficit reduction contributions by half. The PPF, exercising creditor rights, influenced a better outcome, including security over group assets, £100 million in cash and increases in deficit contributions after three years. While welcoming these regulations, they do not close off all concerns proposed by the new moratorium arrangements, such as the incidence of gaming by current or future lenders wanting access to super-priority status; avoidance of pension liabilities and incentivising insolvency over rescue for certain creditors; the non-triggering of a scheme Section 75 debt impacting its creditors’ standing and voting rights; and the imposition of a payment holiday on a scheme’s deficit contributions but exempting finance debt payments from that holiday.

The Government made amendments to the Corporate Insolvency and Governance Bill which, they argued, sought to address these risks. The noble Lord, Lord Callanan, said,

“the Government believe that these amendments remove the risk of gaming the system … but we appreciate that the financial services industry … changes over time. For this reason, my amendments include a power to make regulations … to change the definitions of moratorium debt and priority pre-moratorium debt … As these are the debts that receive super-priority or additional protection, the Government will be able to react quickly and decisively to any changes in market behaviour.”—[Official Report, 23/6/20; col. 154.]

Although real concerns remain, these were welcome concessions in so far as they allow the Government, if they so choose, to respond quickly to gaming and perverse behaviours. The Government also committed to monitor closely how the implications of the new moratorium and restructuring provisions unfold in practice. I appreciate that the Act has only recently come into effect so there has been only a limited period to see how these provisions pan out in practice, but what arrangements have the Government put in place to monitor the implications of the moratorium and restructuring provisions, including the emergence of gaming and perverse behaviours for DB pension liabilities? How will they consult and report on the emergence of such behaviours? What plans do the Government have to lay regulations to allow them to act immediately when such instances occur?

Pension Schemes Bill [HL]

Baroness Drake Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Tuesday 30th June 2020 Lords Chamber

Moved by

[Baroness Drake]

8: Clause 14, page 9, line 9, at end insert—
“(c) specifying requirements to be met by an employer using or intending to use a qualifying scheme under section 3(3) in respect of the costs under subsection (2) of this section.”Member’s explanatory statement
This amendment would give a power to the regulator to seek a contribution from an employer, using or intending to use a qualifying scheme, to the financial resources available to meet the costs of setting up and running the scheme or resolving a triggering event.

[Baroness Drake (Lab) [V]]

My Lords, I refer to my interests in the register. I move Amendment 8 in my name and that of my noble friend Lady Sherlock and the noble Baroness, Lady Bowles of Berkhamsted. Collective money purchase schemes—CMPs—seek to share risk collectively and more efficiently between their members. There is no employer promise under- pinning that risk. The Bill currently restricts CMP schemes to those set up by an employer or connected employers such as the Royal Mail. It would require the Secretary of State, exercising powers under Clause 47, to extend the qualifying definition to include CMP schemes that cover a lot of unconnected employers.

A function of the legislation is to understand the risks that members face in a CMP scheme, and to put in place appropriate measures to mitigate them. One of those risks is that a scheme becomes financially unsustainable and has insufficient resources to meet the costs of dealing with a triggering event where it occurs, and the cost of continuing to run on the scheme for a period while the problem is dealt with. These costs may include the cost of transferring members’ assets to another pension scheme and winding up.

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[Baroness Stedman-Scott]

My Lords, I begin by addressing the amendment to Clause 14 tabled by the noble Baronesses, Lady Sherlock, Lady Bowles and Lady Drake. In doing so, I want to stress that ensuring members are treated fairly has been a central part of our work on CDC schemes since we began. As I explained in Committee, and in more detail in the letter sent to your Lordships on 5 March, the financial sustainability requirement will mean that CDC schemes are established on a sound financial basis and members are adequately protected from unfair and excessive administration charges.

I understand the intention behind this amendment but I do not consider it to be a necessary addition. For the financial sustainability requirement at Clause 14 to be met, the trustees must provide evidence that they can access sufficient financial resources to cover the costs associated with setting up and running the scheme, as well as those associated with dealing with triggering events. If the regulator is not satisfied about the security of these resources and that they can be accessed as needed, the requirement will not be met and the scheme will not be authorised. It may well be that, in the early days of a CDC scheme, initial funding comes from the employer, but our approach does not just rely on employer-provided financial support; it enables trustees to draw on other options, including funds held in escrow, insurance policies or contingent assets. These should be available to cover any costs arising from a triggering event.

The noble Baroness, Lady Drake, asked who can be required to meet the cost of triggering event. The regulator will work with the trustees, employees and others connected to the scheme to ensure that the scheme always has secure access to sufficient assets so that members’ funds are not affected. My noble friend Lady Altmann made the point that transfer values should be adjusted for future risk. Our legislation will require benefits and transfer values to be calculated based on long-term factors such as longevity, inflation and investment returns. This has the effect of smoothing outcomes and will mean that transfer values will not suddenly rise and fall, making cashing-in not as attractive as my noble friend suggests.

Once authorised, the scheme will need to continue to have access to sufficient financial resources so that it continues to meet the financial sustainability requirement. The regulator will monitor this through ongoing dialogue between the trustees, intelligence work and the significant events framework in Clause 28. This will ensure that it can intervene if it is concerned about a scheme’s financial sustainability and that, where necessary, a scheme could be de-authorised and wound up using the financial reserves. Our approach means that a CDC scheme must remain financially sustainable and able to deal with situations such as an employer withdrawing from the scheme or becoming insolvent.

As we set out in the letter that we sent to noble Lords, we are also taking additional steps to protect members. The CDC charge cap will help to protect members from excessive administration charges if the usual running costs of a scheme increase significantly for any reason. In addition, the continuity strategy at Clause 17, the implementation clause at Clause 39, and the prohibition on increasing charges during a triggering event at Clause 45 are all designed to protect members’ interests when things go wrong.

I now move on to address Amendment 32, tabled by the noble Lords, Lord Sharkey and Lord Vaux, and the noble Baroness, Lady Bowles, which is about intergenerational fairness—a matter raised by many noble Lords and the subject of extensive discussions. We have been mindful of the problems that other countries have experienced, for example in their approach to adjusting benefits. We have learned from these. That is why envisaged regulations under Clause 18 will mean that the CDC’s scheme rules must require that there is no difference in treatment between different cohorts or age groups of scheme members when calculating benefits and applying benefits adjustments.

The noble Baroness, Lady Janke, raised a point about issues experienced by CDC schemes in the Netherlands. We have been mindful of the problems that other countries have experienced. UK CDC schemes will not be required to have a buffer to smooth out fluctuations in the value of the benefits. Members’ benefits will be adjusted each year in light of the most recent actuarial valuation. This protects members from the need to fund a surplus and means that adjustments to benefits are provided for each year rather than hidden and stored up.

I welcome the sentiment behind the proposed amendment; it is something to which we want to give further consideration. We need to give careful thought to how such reporting might work in practice and would want to work with trustees, administrators and the regulator to ensure that any such requirement is proportionate, appropriate and clear. We would also want to consult on any such approach to make sure that it is effective. I reassure all noble Lords that we will give this matter careful consideration. Should we need to bring forward such a requirement in regulations, we already have sufficient powers in existing legislation to require schemes to report on fairness in CDC schemes if warranted. This includes powers under Section 113 of the Pension Schemes Act 1993 and Clause 46 in Part 1 of the Bill. There are also equivalent Northern Ireland provisions. For the reasons that I have set out, I ask the noble Baroness to withdraw the amendment.

[Baroness Drake [V]]

My Lords, I support Amendment 32, but I shall direct my comments to the Minister’s response to Amendment 8. The Minister has been very courteous in the face of my persistence on this issue and I have listened carefully to what she has said. In listening, I noted four things: first, that the powers in the Bill mean that the regulator can require initial funding from employers in the setting up of a CMP scheme; secondly, that those funds can be used to buy an insurance policy or be put into an escrow account; thirdly, that they can be available to fund triggering-event costs; and fourthly, should a triggering event occur, the regulator will work with both the employer and the trustees to ensure that sufficient financial resources are available to meet the costs of a triggering event. That is my understanding of what the Minister has said; I would, of course, expect the final regulations presented to Parliament to reflect that. On that understanding, I shall not push Amendment 8 to a vote. I beg leave to withdraw it.

Amendment 8 withdrawn.

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Moved by

[Baroness Drake]

52: Clause 118, page 105, line 9, at end insert—
“( ) Requirements prescribed under subsection (2) must include a requirement that a pensions dashboard service may not include a facility for engaging in financial transaction activities.”Member’s explanatory statement
This amendment ensures that a pensions dashboard service does not include a provision for financial transaction activities.

[Baroness Drake [V]]

My Lords, Amendment 52 is in my name and those of my noble friend Lady Sherlock and the noble Baroness, Lady Janke. The Bill enables the introduction of an ecosystem of public and commercial pensions dashboards. When built, the dashboard service will find and display, for view by all individuals, all the information about their occupation, personal and state pensions in one place. The Secretary of State can mandate all pension providers and schemes, including the state, to release their data on an individual. That mandate will cover the financial data of many millions of people.

The intention is that the dashboard will contribute to better decision-making by individuals about their long-term savings. Unfortunately, the evidence shows that that will not automatically translate into engagement and good decision-making by everyone. Structures will need to exist around the dashboard which support people making choices and protect them from detriment. That is why Amendment 52 is important. The amendment ensures that a dashboard service should not go beyond the finding and displaying for view information on a consumer’s savings into allowing financial transactions to take place through the dashboard before Parliament has had the opportunity to consider the matter and approve this through primary legislation.

The long-term savings market is particularly vulnerable to consumer detriment, because of the asymmetry of knowledge and understanding between the consumer and the provider, consumer behavioural biases, the complexity of products, and the irreversible nature of many pension decisions. There is a plethora of reports from different regulators confirming this. Allowing transactions on commercial dashboards, such as the transfer of assets, could provide new opportunities for detriment. The impact of scams, mis-selling, provider nudging and poor decision-making could increase if an individual’s total savings are displayed in one place, the dashboard allows financial transactions, and the wrap of consumer protection is not fit for purpose. For some vulnerable customers, poor decisions could be more costly if the impact is across all their savings, and if people are scammed, they could be scammed out of everything.

Before transactions are authorised, Parliament needs to understand how the dashboard is driving behaviours, of both consumer and provider, and how consumers will be protected. In this market, the consumer demand side is weak, and, increasingly, regulatory focus is on provider supply-side controls to protect consumers’ interests. Commercial dashboards could make it much easier for firms that have attractive front-end offerings to capture consumer assets through, for example, encouraging early consolidation and the transfer of pension pots. It is to be remembered that pension transaction decisions are mostly irreversible, and poor decisions can be financially life-changing in their impact.

Dashboards are not a silver bullet for removing consumer risk. Most individuals do not proactively engage with their pensions until they have to. When they do, they can be price insensitive and vulnerable to nudging, inertia and judgments detrimental to their retirement income. We now see that vulnerability in the drawdown market following the introduction of pension freedoms, as the FCA has confirmed.

Consumers reveal powerful behavioural biases which have more impact on financial capability than lack of knowledge and information. They take what the FCA describes as the “path of least resistance”, even in the face of information available to them. If someone is looking to consolidate all their savings, rather like Alice and the Drink Me bottle, if there is a button on the provider’s commercial dashboard that is marked “Transfer All Savings”, they are more likely to press it.

The FCA rules have not prevented mis-selling. Regulated advice failed the Port Talbot steel workers. The FCA report on the financial advice market’s support to pensions does not make good reading. In a dashboard service which allows financial transactions, protecting individuals’ data, and who can hold, access and use it, are questions of major importance. This amendment does not argue against allowing financial transactions longer term over the dashboard, but it recognises that the consumer protection issues are of such importance and magnitude that the decision to allow transactions must be preceded by the approval of Parliament. Neither Government nor Parliament can be agnostic on the matter. The state supports the long-term saving system with more than £40 billion of tax relief and mandates employers to enrol millions of workers into a pension scheme.

The Government must ensure that the dashboard service makes a positive contribution to retirement income outcomes for the consumer and the public good of the UK. I am arguing that people should have the freedom to make good decisions and be protected from poor decisions that they cannot reverse. This is something that the FCA often tries to do, and I am sure that if one put the issue to some of those Port Talbot steel workers, they would agree. Some of those steel workers learned a cruel lesson: poor pension savings decisions are irreversible. In Committee on 2 March, the noble Earl, Lord Howe, commented:

“I do not believe that I expressed a categorical Government intention to include transactions on the dashboard. I said that we would make that incremental step only after the most careful consideration and public consultation, and assessment of all the risks. I freely acknowledge that risks exist in that quarter.”—[Official Report, 2/3/20; col. 209GC.]


My case, and the sheer weight of the evidence, is that such are the potential risks that Parliament itself should have its say and that scrutiny by secondary legislation in the affirmative is not sufficient. Furthermore, the very nature and extent of the protections required may, because of their nature, require primary legislation. This is not an area of settled policy and it is a matter of significance for many millions of citizens. I hope that the Minister will accept the amendment. If he does not, I intend to push it to a vote. I beg to move.

[Baroness Altmann [V]]

My Lords, I have little to add to the wise words of the noble Baroness, Lady Drake, on Amendment 52. There are significant dangers should there be an easy transaction button on a pensions dashboard right from day one. However, perhaps I may speak briefly to my own amendments, which have been kindly supported by the noble Baroness, Lady Bowles: Amendments 56 and 59.

Amendment 56 is probing in nature and seeks to amend Section 119 of the Pensions Act 2004 to provide that regulations may be imposed that would require information from occupational pension schemes to dashboards to be accurate and up to date. Further, the amendment would ask the regulator to impose requirements for regular data audits, accuracy checks and error correction reports.

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[Earl Howe]

My Lords, I begin by turning to Amendment 52, tabled by the noble Baronesses, Lady Drake and Lady Sherlock. We have been clear that the initial aim for dashboards is simply to present people with information about their existing pension provision, whether that be the state pension, occupational pensions or personal pensions. Giving people the opportunity to see that information in a single place will represent a significant achievement. The pensions dashboard programme published papers in April that identify the scope of this initial offer, and it announced recently that the call for input on these proposals will start in early July.

The concern raised by the noble Baronesses relates to transactions. It is worth reminding ourselves that people can already undertake all kinds of financial transactions online, such as transferring existing pension pots between providers or consolidating small pensions into a single account. However, any organisation offering such services must meet existing regulatory requirements. In relation to pension transfers, these include requirements designed to ensure that people understand the potential consequences of undertaking these transactions.

These legislative requirements arise from the Pension Schemes Act 1993 and a member’s statutory right to transfer their cash equivalent to a pension scheme of their choice. Clause 125 seeks to amend that statutory right by creating safeguards to give trustees and scheme managers assurance that such transfers are to safe destinations. I do not think that the noble Baronesses, or indeed anyone who spoke today, gave sufficient credit to those provisions. Any such functionality would also have to navigate other existing legislative requirements, including those set out by Section 48 of the Pension Schemes Act, which require members with a cash equivalent value in a defined benefit scheme greater than £30,000 to seek financial advice. Members with guaranteed annuity rates must be sent personalised, tailored risk warnings before they are informed that they must take such advice.

In addition, I ask the noble Baroness to take into account the Government’s amendments to Clause 125, which will add a further series of safeguards. By taking a regulatory power to notify members to take guidance and information where a transfer meets prescribed circumstances, selected “at-risk” members will have to pause their transfer and demonstrate they have taken action to consider the risks of proceeding. Therefore, it is not fair to portray the Government as ignoring consumer protection.

Alongside this, we have been totally clear that any organisation wishing to provide a pensions dashboard must first complete an authorisation process, overseen by the Financial Conduct Authority. Once it has been authorised, it will be subject to the existing regulatory requirements for that activity and for any other activity it has the regulatory permissions to carry out. Where applicable, this may include the new protections offered by Clause 125 of this Bill.

The decision on whether transactions will be allowed on dashboards is not one we will take lightly. First, we need to understand how users respond to initial dashboards offering a simple “find and view” service and, subsequently, what additional needs users may have where dashboards could add value. Any decision to enhance the functionality of dashboards would have to be supported by extensive user testing as well as a review of the existing consumer protections to ensure that all necessary safeguards are in place to protect the consumer. We would also need to consider the legislative implications of such actions. Any application to transfer made using dashboards would be subject to the transfer requirements set out in primary and secondary legislation that are in force at the time of the application.

I strongly believe that Amendment 52 is the wrong way to go. It would deny people the right to take control of their financial situation. It actively seeks to frustrate. It would mean that consumers, even when properly advised and informed, would have to follow a parallel track to execute their wishes. It may even go so far that it could stop dashboard providers developing useful modelling tools that could, for example, inform people of the potential benefits of increasing their contributions or the impact of increased earnings. This amendment risks stifling future innovations that could demonstrably benefit consumers. My noble friend Lady Neville-Rolfe made that point very effectively.

As I have indicated, this amendment completely fails to take into account the existing regulatory regime under which many types of financial transaction are already regulated. The Government have been clear that we want to enable consumer-focused innovation; as I have said, we will always ensure that safeguards are progressed in line with this innovation.

My noble friend Lady Neville-Rolfe asked whether our proposals risk contravening any GDPR rules. I remind her that only the Money and Pensions Service and qualifying pensions dashboard providers that meet the requirements set out in regulations and operate to agreed standards will be able to connect to the dashboard infrastructure, so the request will effectively be a subject access request from an individual to the data controller to view their data. The individual’s identity will have been verified to the agreed standard level so that the pension scheme can be confident about who is making the request. Any request to search for consumers’ pensions information that is not received from the pension finder service will not be provided via pensions dashboards.

Turning to Amendments 56 and 59, tabled by my noble friend Lady Altmann and the noble Baroness, Lady Bowles, we agree that the accurate recording and management of pensions data is important. That is why the Pensions Regulator set out its expectations on record-keeping in 2010. It provided additional guidance in 2017 and 2018 to support trustees and scheme managers in measuring and improving their data.

The regulator already expects schemes to conduct annual reviews of their data that cover presence and accuracy, that trustees engage with administrators to identify and prioritise data for improvement, and that they report their data scores so that the regulator can monitor improvements and target its engagement with schemes. The Pensions Regulator has increased its scrutiny of scheme records and has targeted regulatory intervention based on reported data scores. Previous interventions have seen positive results.

The Financial Conduct Authority also has relevant requirements in place. Under its general compliance requirements in the FCA handbook concerning senior management arrangements, systems and controls, firms are required to

“establish, implement and maintain adequate policies and procedures sufficient to ensure compliance of the firm including its managers, employees and appointed representatives (or where applicable, tied agents) with its obligations under the regulatory system”.

As a result, when the FCA makes rules to compel schemes to provide data via dashboards, these will have to comply with this provision; we expect the rules themselves also to set out that the data must be accurate. In addition, the Financial Conduct Authority has the power to make further rules relating to data accuracy so long as it advances one or more of its operational objectives and is consistent with data protection legislation.

Alongside those requirements, the Minister for Pensions and Financial Inclusion recently wrote to some of the largest pension schemes, providers and third-party administrators to galvanise the industry’s approach to data accuracy and readiness for dashboards. The Minister requested a status report on the quality of their scheme data and, accordingly, their plans to improve it. The Government will feed the findings into the pensions dashboards programme to support their efforts. Schemes will be required to meet a clear set of data standards to connect to the dashboard system; these will be finalised in the autumn.

In addition, the programme will work with the regulators to develop a comprehensive onboarding strategy to support schemes in preparing their data ahead of their connection to the dashboard infrastructure. These activities seek to ensure that dashboards are a success by achieving the necessary coverage and that the data supplied is accurate and clearly understood by the user.

With those assurances and explanations, I hope that my noble friend will feel able not to move her Amendments 56 and 59 when they are reached.

[Baroness Drake [V]]

My Lords, I thank all noble Lords who have supported Amendment 52. I say to the noble Earl that nothing in my amendment would deny any of the things that he listed. That is simply untrue. It seeks to say that Parliament should have the authority to clear taking transactions on to a dashboard system. The noble Baroness, Lady Bowles, captured it quite succinctly: transactions are a key risk danger point and require attention in that sense.

The noble Earl does not deny that there are risks. The difference between us is that I believe that the scale and implications of those risks, and the unknown evidence that is yet to come forward from our experience of the dashboard, are such that this should not be dealt with by regulations or secondary legislation. It should be dealt with by Parliament clearing enabling legislation to allow people to transact on dashboards. That is the thrust of my amendment; it is not to deny people freedoms. This is not without precedent. It was Parliament that intruded to insist that charge caps should be applied to pension savings pots. In spite of the arguments articulated against that, the industry has survived perfectly well and everybody has gone on to thrive under charge caps on pension schemes.

In moving my amendment, I did not put forward a single argument saying that the Government were neglecting consumer protection. Ironically, a lot of the protections that the Government are introducing are to deal retrospectively with the consequences of introducing pension freedoms without a protective consumer wrap. It would be sensible not to make the same mistake twice.

The issue here is that the scale of the potential risks—the unknowns of what behaviour will be like on the dashboard—are such that, in my view, it is perfectly reasonable to say that that issue should come back to Parliament for clearance through primary legislation rather than through regulations or secondary legislation. I wish to press my amendment to a vote.

[The Deputy Speaker (Baroness Henig) (Lab)]

I shall now put the Question. We have heard a Member taking part remotely say that they wish to divide the House in support of this amendment; I will take that into account. The Question is that Amendment 52 be agreed to.

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[Lord Young of Cookham (Con) [V]]

My Lords, Amendment 53 in my name presses the Government to clarify progress on identity verification. This is crucial because without a system for identity verification—proving you are who you say you are—no one can use a dashboard. The original proposal for verification was summarised on the ABI website:

“The process to confirm the identity of users is based on the gov.uk/verify system”.


Verify was a government-sponsored IT project that began in 2014 and has cost about £200 million. It should have provided the basis for accessing pensions dashboards. To put it mildly, however, it has not lived up to expectations, leaving a void in the dashboard programme.

Last year the NAO published a critical report on what in its words was

“intended to be a flagship digital programme”.

It said:

“Even in the context of GDS’s”—


the Government Digital Service’s—

“redefined objectives for the programme, it is difficult to conclude that successive decisions to continue with Verify have been sufficiently justified.”

A year earlier, the Infrastructure and Projects Authority recommended that Verify be closed as quickly as practicable. The Institute for Government’s Whitehall Monitor commented that the scheme continued to be “mired in issues”, had fallen “short of targets”, and had

“failed to build its intended user base and … is not delivering the efficiencies that the government sought.”

In March this year the Government stopped funding the scheme. Verify’s falling out of favour was heralded by my noble friend in his reply to my amendment in Committee. This is what he said:

“I understood what my noble friend said about Verify, and I assure him that the industry delivery group has this issue squarely on its radar.”


Putting on his black cap, he went on to say:

“The solution may not be Verify. … We hope to make announcements on that in due course.”—[Official Report, 2/3/20; col. GC 205.]


Responsibility for taking identification verification forward now rests with MaPS, the Money and Pensions Service. In its progress report in April on identity verification, there is no mention of Verify, which seems to have been airbrushed out.

Yesterday, I got an email from Mr McKenna of MaPS, for which I am grateful. I had asked him whether the current market engagement exercise on the dashboard included verification, and this is the reply:

“The current market engagement exercise does not include identity verification. This is a separate work strand within the programme that requires more work before we will be in a position to engage with the supplier market.”


So a prerequisite for the dashboard programme has been put to the back of the queue. Who is going to provide the identity verification service? Given the commitments that we have heard this evening that the service will be free, how on earth will it be funded? Will it be by MaPS, for example? Is my noble friend able to make the announcement that he trailed in his earlier reply to me, on the timing and funding of this crucial element in the programme?

Amendment 65, in my name, places an obligation on MaPS to provide a dashboard by replacing “may” with “must”. It is the identical twin of an amendment that I tabled in Committee, and I am grateful to my noble friend Lady Altmann and the noble Lord, Lord Sharkey, for their support. To the amateur, our one-word change seems a more economical way of achieving the desired objective than the five government amendments with thousands of words, but we bow before the expertise of professional drafters. I say straight away how grateful I am, as I am sure other noble Lords are, that the Government have listened to the strong case made on all sides in Committee, and recognised that we need the certainty of compulsion, rather than the uncertainty of discretion, when it comes to MaPS and the dashboard. That we have this concession is typical of the patient listening of Ministers and their officials in the last three months, on this and other issues, and I warmly welcome it.

But—and it is an important “but”—there is no date by which they have to do this. Without some idea of timescale, we could be left holding the menu without ever getting the dish—hence my Amendment 68, which obliges MaPS to complete this task by December 2022. I referred in Committee to the length of time it has already taken to get this project up and running. It was first promised by Government in 2002 as an online retirement planner, and we were told 12 years later by the then Financial Secretary to the Treasury that:

“A ‘RetirementSaverService’ (dashboard) will be essential to support pension freedoms.”


Five years after pension freedoms, there is still no dashboard, while eight national dashboards have been launched in Europe and we have been reassured by the ABI that there has been extensive testing of prototypes.

In response to my amendment in Committee, my noble friend Lord Howe said,

“but I can tell my noble friend that MaPS and the industry delivery group intend to set out their approach for the year ahead by Easter. By then, we should have at least the outline of a plan, with milestones I hope, so that we can be a little clearer on the answer to the question that he raised.”—[Official Report, 28/2/20; col. GC 184.]

Easter has come and gone, but no milestones. The latest from MaPS is:

“We plan to lay out a more detailed timeline by the end of the year.”


I looked at the ABI website over the weekend to see if it had updated it on the subject of the dashboard since Committee, and I found this under “FAQ”:

“If the prototype has worked, why do I have to wait until 2019 to use this myself?”


Perhaps that could be updated before Third Reading.

Since Committee, MaPS and the ABI have had to cope with the pandemic, and their top priority has to be the continued payment of pensions, the collection and investment of contributions, and the provision of advice. But the introduction of “must” instead of “may” risks being meaningless without some indication of a date by when the obligation must be discharged. I hope that my noble friend can provide some sort of road map and destination time by which we will do this.

Finally, Amendment 63, in the name of the noble Baroness, Lady Sherlock, would require the MaPS dashboard to be up and running for a year before other dashboards. My initial view was that we did not need to have more than one dashboard as the data displayed on each would be identical, so why duplicate? However, as a Conservative, I was persuaded to support competition and choice, but I have a lot of sympathy with this amendment; I believe it would be best if MaPS became the brand leader of dashboards and was well established as such in the minds of the public. It has a better chance of doing this if it is first out of the traps, rather like the BBC and commercial broadcasters. In practice, this should be the case as MaPS is in charge of the plumbing for all the dashboards.

Looking at the progress update report from MaPS in April, I see that Chris Curry of MaPS is in charge of the pension dashboards programme. His remit will be to develop the secure digital architecture to support and enable the development of pension dashboards. Therefore, MaPS is doing the specification, procurement and testing of the common systems that everyone will be using; with this inside track, it ought to be first in the field.

The Minister said in reply to the debate on this in Committee:

“It could be that the publicly funded dashboard will be launched first and be first in class, and that others will follow.”—[Official Report, 26/2/20; col. 185GC]


It would be helpful if the Minister could go a little further this evening and encourage MaPS to say publicly that it is indeed its intention to be up and running before anyone else. On this, as indeed with other amendments, I will listen very carefully to what my noble friend says in reply. I beg to move.

[Baroness Drake [V]]

My Lords, the introduction of a pension dashboard service raises major considerations of the public good and consumer interest, which is why I, my noble friend Lady Sherlock and many other noble Lords across the House have argued strongly for citizens to have the right to access their data through a public dashboard and not be restricted to commercial services.

I thank the Minister for his courteous consideration of our arguments and the decision of the Government to require the Money and Pensions Service—MaPS, a public body—to provide a pension dashboard service. Amendment 63 would ensure that the MaPS public dashboard must have been in operation for a year, and the Secretary of State must lay a report before Parliament on the operation of that service, before commercial dashboards are authorised by the FCA to enter the market. A MaPS dashboard would be part of their function to deliver guidance to the public that is free at the point of use—a safe space, unfettered by any commercial interests.

As the Government can mandate all pension providers and schemes to release personal financial data on the order of 22 or more million people, Parliament needs to be confident that the public good and consumer interest are well served. The points of the noble Lord, Lord Young of Cookham, are extremely valuable and important, and I thank him for making them. Financial technology should be harnessed for the public good and to improve financial markets, and the dashboard has that potential.

However, building a dashboard service has complexities and challenges. The architecture, the liability model, consumer redress on detriment, data standards and sharing risks, identity verification and security—that quite rightly preoccupied the noble Lord, Lord Young—delegated access and consumer behavioural responses, to name just a few, are all work in progress. As I observed in the previous debate:

“The long-term savings market is particularly vulnerable to consumer detriment”.—[Official Report, 26/2/20; col. 176GC]


There is a major governance challenge to be addressed: the consumer protection of millions in both the provision of the dashboard and the infrastructure that supports it.

The ABI, speaking for some commercial providers, has acknowledged the need for strong governance to make clear what obligations, liabilities and controls will be in place and are necessary. In requiring near-universal coverage, the dashboard service raises the bar on protecting customers from poor behaviour by regulated and unregulated providers, scammers and consumers’ own vulnerability, when all their savings can be viewed in one place.

--- Later in debate ---

Moved by

[Baroness Drake]

63: Clause 122, after inserted subsection (A2) insert—
“(A3) Before any other pension dashboard services can qualify under section 238A of the Pensions Act 2004 (qualifying pensions dashboard service)—(a) the pensions dashboard service under subsection (A1) must have been established for at least one year, and(b) the Secretary of State must lay before Parliament a report on the operation and effectiveness of the pensions dashboard service under subsection (A1) in its first year.”Member’s explanatory statement
This amendment ensures that the publicly owned pension dashboard service has been operating for one year and the Government has reported to parliament on its operation and effectiveness before commercial dashboard services can qualify.

[Baroness Drake]

I beg to move.

--- Later in debate ---

[Baroness Altmann [V]]

My Lords, I support Amendment 71, to which I have added my name. I have little to add to the excellent words of the noble Baroness, Lady Bowles, and my noble friend Lord Young of Cookham.

I stress to my noble friend the Minister that this is a really important amendment. The Government’s recent White Paper called for pension scheme funding which enables the best deal for members, supports the economy and does not place extra burdens on business. If those are the objectives—and I think they are the right ones—they will be at odds with the draft DB funding code that may emerge from this legislation, which seems to want to drive DB schemes on a path to so-called de-risking, aiming for a particular date of maturity. This concept is simply inappropriate for an open scheme.

The regulatory approach for schemes such as USS or the Railways Pension Scheme would see their ability to invest for the long term, which must be in the members’ best interest, become much more difficult. There does not seem to be sufficient recognition of the difference in liquidity profile and investment horizon of an open, relatively immature scheme compared to a closed scheme. Indeed, this would pose an existential threat to the survival of all remaining 1,000 or so open schemes. In the face of quantitative easing, increasing exposure to gilts and fixed income assets makes little sense while central bank policy is designed to force bond yields lower. Forcing schemes to compete with central banks to buy ever more expensive bonds is the most expensive way to fund these pension commitments.

The Bank of England’s pension scheme is an ideal example. It follows a lowest-risk approach, investing solely in gilts and other such supposedly safe assets. It does not match its liabilities, but it is open and entails a contribution rate of between 40% and 50% of pensionable salary. Should such pension contributions be required without any upside potential for a diversified investment strategy that can take advantage of the wide range of investment options available from infrastructure assets, building housing for rental and other areas where pension schemes with a long-term horizon are ideally placed to take advantage—for example, our own infrastructure, in which other countries’ pension schemes have significantly invested—schemes such as RPMI would require such significant contribution increases that members could not afford it and would opt out, and employers could probably not afford it either.

Therefore, I urge my noble friend to look carefully at this really important issue and to recognise explicitly that there are different needs for open DB schemes relative to those that are otherwise closed.

[Baroness Drake [V]]

My Lords, I speak in support of Amendment 71. Given the hour, the noble Baroness, Lady Bowles of Berkhamsted, with her usual skill, has captured the issues clearly and succinctly. It is clear that there is genuine concern among those running DB schemes which are materially open to new members with strong employers, such as the sections of the Railways Pension Scheme and the Universities Superannuation Scheme. They fear that they will be forced to de-risk unnecessarily, with all the implications that that carries and all the potential detriment for both employers and employees in the scheme.

The amendment seeks to address two issues: first, that it should not be government policy to require trustees of pension schemes materially open to new entrants with strong employer covenants to adopt a strategy that will result in them de-risking their investments unnecessarily and prematurely, for all the reasons that other noble Lords have clearly articulated; and, secondly, that the Secretary of State, in exercising powers under Schedule 10 to make provisions through regulation on the funding of defined benefit schemes, should make provisions that are consistent with the policy in the White Paper statement that running on with employer support could be an acceptable long-term strategy for a materially open scheme. The amendment is consistent with any reading of the government policy in the White Paper, but it seeks to ensure that it happens.

[Lord Vaux of Harrowden [V]]

My Lords, I had intended to add my name to this amendment, and I apologise that I failed to do so. The noble Baroness, Lady Bowles, has raised an extremely important issue in the amendment and has eloquently set out the reasons.

We are often guilty of looking at defined benefit schemes as a concept that is on the way out—that we are only really talking about the run-out of closed schemes —but that ignores the fact that many DB schemes remain active and open to new joiners. I am very grateful to the Railways Pension Scheme for explaining the potential implications for such schemes of the regulator’s consultation on the defined benefit funding code of practice.

For schemes that are mature or closed and in the run-down phase, it makes complete sense to minimise the risk of the investment strategy so that there is a high degree of certainty that the fund will be able to meet its obligations. The flipside of that, of course, is that a low-risk investment strategy means a low return. That is fine for mature schemes, but schemes that are not mature and still live would suffer from being restricted to a low-risk, low-return investment strategy. As the noble Baroness, Lady Bowles, said, the largest part of benefits paid from a fund typically come from the investment returns earned over its life. If forced to take such a low-risk, low-return approach in order to meet a certain level of benefit, they would have to massively increase contributions from either the employer or the employee or a combination of both. Indeed, I confess that I had not understood that there are DB schemes that specifically share such risk between employers and employees.

A higher-risk investment strategy with the ability to earn better returns is entirely appropriate for schemes that are not mature. I think that it was the noble Lord, Lord McKenzie of Luton, who, in Committee, raised a concern about hastening the demise of defined benefit schemes. If the regulator, in taking an overly risk-averse approach, insists on too low a risk and a low-return approach for open or immature schemes, they will inevitably become less attractive to employers and possibly to employees. All we will achieve is the hastening of the end of defined benefit schemes, which are the gold standard for pension saving, especially for those on lower earnings.

The amendment is therefore critical to ensure that the regulator takes into account the state of maturity of a fund when looking at scheme funding and to ensure that trustees have sufficient discretion to be able to act in the best interests of their beneficiaries.

Automatic Enrolment (Offshore Employment) (Amendment) Order 2020

Baroness Drake Excerpts

Tuesday 19th May 2020 Lords Chamber

[Baroness Drake (Lab)]

My Lords, I welcome the order and regulations, which will ensure that eligible seafarers and offshore workers continue to benefit from employer duties to auto-enrol workers into a workplace pension.

Importantly, they confirm a set of three underpinning government decisions. First, the consideration of complexities in a sector or net burden on business, which led to the original sunset clauses, has not been allowed to exclude these workers from auto-enrolment. Secondly, the Government have resisted amending the eligibility test for auto-enrolling these workers, therefore ensuring that the coverage is not diminished. Thirdly, the DWP has held to its 2017 Maintaining the Momentum report, in which it concluded that employer auto-enrolment duties should continue regardless of industry sector and size of employer.

The necessity of emergency and extraordinary financial measures in response to this pandemic can sometimes mask the risk that fundamentals around long-term sustainability get lost, which is why I welcome that the Government have maintained employer auto-enrolment duties and that the job retention scheme allows grants to cover employer statutory minimum pension contributions for millions of furloughed workers. These grants particularly benefit women and young workers, who are much more likely to be working in sectors with the highest incidence of furloughed workers.

It took 16 years to build consensus and fully implement auto-enrolment. Auto-enrolment was born in the last financial crisis with the 2008 Act. If siren voices had prevailed then and the policy had been kicked into the long grass, we would not have secured 10 million more saving and 1.6 million employers participating. It is important that auto-enrolment is maintained during this pandemic crisis, avoiding irrecoverable long-term negative consequences, particularly for younger generations who are already likely to be hit particularly hard by this pandemic.

In conclusion, I ask the Minister for reassurance that the Government are committed to maintaining auto-enrolment duties in the rebuilding of the economy, regardless of the industry sector and size of the employer.

Covid-19: People Living in Poverty

Baroness Drake Excerpts

Thursday 30th April 2020 Lords Chamber

[Baroness Drake (Lab)]

My Lords, as millions experience their employers’ struggle to keep businesses afloat and workers employed, the state has deployed radical measures on a scale unimaginable a few weeks ago. But Governments will continue to face difficult decisions, even when the virus is under control—trade-offs and ethical choices of lasting importance. As Paul Johnson of the IFS observed:

“We are not all in this together when it comes to the social and economic consequences of the virus and our response to it.”


This QSD poses the ethical choices in addressing poverty going forward. This crisis provides compelling evidence for mutual insurance, an effective welfare system and collective economic security. As a country, we will have to reappraise our values and reflect on what we expect from private and public institutions as we rebuild our economy. We need a clear framework for decision-making, not only opinions about the right decision. I ask the Minister: do the Government accept the need for such reflection and will they publish a framework for such decision-making?

Pension Schemes Bill [HL]

Baroness Drake Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 4th March 2020 Grand Committee

[Baroness Drake (Lab)]

My Lords, I shall speak to Amendments 90 and 91, which carry further the spirit of Amendment 96, which was tabled by the noble Baroness, Lady Janke. My amendments call on the Secretary of State, within six months of the passage of the Bill, to conduct two reviews: on how legislation could provide for people to receive a contribution towards auto-enrolment pension savings when they are relevant carers—what is now popularly called the carers’ top up—and on the sex equality impacts of auto-enrolment in workplace schemes and how legislation and policy could correct any inequalities identified.

I start by giving recognition to the DWP and the Pensions Regulator for the successful rollout of auto-enrolment. It is true that many more people, including women, are now saving, but various sources of data evidence show a persisting gender pensions gap. The message, whatever the source of the data, is the same. The gap arises from design features in the pension system and as a consequence of the systemic problems that too many women and carers face. In summary, carers are subject to a financial penalty in their income and pension because they are undertaking caring responsibilities, which is reinforced by stereotyping, cultural norms and employer behaviour.

Some newly published research on pensions by the Pensions Policy Institute, which was sponsored by the master trust Now: Pensions, puts the case for further reforms and reveals that on average, women have 55% lower pension income than men. The average annual private pension income for men aged 55 plus is £8,620; for women, it is £3,920—a considerable gap. Despite the record number of women in employment—now 72.4%—many will reach retirement age with significantly less. The figures vary, but they are in the same ballpark of £100,000 less saved than men. Women are more likely to work part-time or take time out of work while caring for children or, further down the line, to care for elderly or ill relatives, leaving them with interrupted pension contributions and limited earnings opportunities. Inequalities experienced during working-age life deliver lower incomes in retirement. Even when women work full-time, they still, on average, earn almost £6,000 less than men.

There are compelling figures here: 36% of women in the labour force work part-time. Of the 13.4 million employed women in the UK, around 3 million—23%—fall below the qualifying earnings threshold of £10,000 in any given job to get access to the benefits of auto-enrolment. Only about 37% of the population eligible for auto-enrolment are women.

The noble Baroness, Lady Altmann, is campaigning on how the tax system disadvantages a significant number of low-paid women and men, consequently reducing their pension pots. Millions of people at some point in their lives will have given up work or worked part-time to care, most of them being women. Carers’ savings pots are not only smaller, but evidence shows they are often used to cover the cost of the caring they are undertaking. The economic contribution of carers is still insufficiently recognised in UK public policy.

We need women to have children. If they did not, the economic consequences would soon become apparent. We need carers to take responsibility for kinship children, saving the taxpayer considerable cost. If carers did not look after their elderly or disabled relatives, the health and social care cost borne by the state would rise exponentially. In fact, Carers UK estimates that the economic value of the contribution made by carers in the UK is £132 billion a year.

Caring responsibilities impact carers’ participation in the labour market, but they also damage their long-term earnings potential—it just carries on through. It is estimated that for each year out of employment, the hourly wages of women decrease by approximately 2% for women with A-levels or above, and 4% for women with fewer qualifications. Amendment 90 is directed at a reform whereby a carer’s financial credit is paid through the social security system towards their private pension. I will take a little time on this because there is quite a big community out there which believes that this is an important issue and really wants Parliament to hear its strength of feeling on it.

Prior to the introduction of the flat-rate new state pension in 2016, carers were credited with entitlements in both the first-tier basic state pension and the second-tier state earnings-related pension. However, now that the earnings-related system has transferred out of the state to the workplace pension provision through auto-enrolment, that second-tier carer’s pension has been lost, It has just gone; it sort of fell through the crack in the totality of reforms. We had a hard-fought victory for women to secure the public policy principle that caring was an economic contribution for which pension credits were given in both tiers of the pension system—the basic tier and the earnings-related tier. Until that principle was restored, carers had been relatively disadvantaged, adding to the pensions gap. I am a bit reluctant to start in 1902, but if we start with the fight to get women these carer’s credits in both the pension systems, when the earnings-related system was introduced in 1975, something called the home responsibilities protection was introduced, It was not as good as a full carer’s credit but it was a start, although it applied only to the basic state pension. Then in the Conservatives’ Social Security Act 1986 they planned to extend that home responsibilities protection to the second-tier earnings-related pension but they never laid the regulation, so it never happened.

Rowing forward, we had the Child Support, Pensions and Social Security Act 2000, which introduced the second state pension to replace the existing SERPS earning-related element. It provided for carer’s credit for the second earnings-related pension in addition to the state pension. That was a victory. A lot of hard work went into winning that principle, and it applied to carers who looked after a disabled person for more than 35 hours a week or a child under six, but still people argued that it should be improved again beyond that. In the Pensions Act 2007, which, importantly, brought in a major part of the state and auto-enrolment reforms, carer’s credits and how they operated for the basic state pension and the earnings-related element were improved considerably for carers of children up to the age of 12 and the qualifying threshold for carer’s credits for caring for disabled people was lowered to 20 hours.

Those principles, that you credit carers because it is an economic activity—it is a real contribution to the economy—and that you do it in both the basic state pension and the earnings-related pension, were a victory that people thought they had banked, but suddenly, as a consequence of the reforms, that crediting is only in the basic state pension—it no longer exists through auto-enrolment and workplace pensions. The Fawcett Society, along with an increasing number of other organisations—there is quite a build-up of consensus around this—supports the introduction of a carers’ top-up, re-establishing the principle that people thought had been achieved and consolidated in 2007.

A seminal report from Insuring Women’s Futures, the product of a voluntary market-led programme under the Chartered Insurance Institute, looked at improving women’s financial resilience. It has brought in a range of people—business leaders, policy experts, regulation experts, academics and so on—and looks at the root causes of women’s lack of financial resilience.

I am probably using a lot of words to say it, but the report basically says that more needs to be done to allow all women access to pensions, to support women in attaining an adequate pension—reflecting their whole contribution to society and the economy—and to allow them to enjoy pensions parity in the workplace. It also says that the complexity of pensions, together with the wider financial risks in life that have an impact on women’s pensions journey, means that women need differentiated support and guidance at moments that matter, such as when they step out from or step down in their engagement with the labour market because they are doing the economically important job of caring.

Much was achieved by auto-enrolment—it is tempting to say that I would say that—and the Government were right to focus their energies on its successful implementation. I never argued with a Conservative Minister who said, “That is the priority and that is what we must do”; that was right. However, this gap in the pension position of many women relative to men persists, and there is a growing consensus—it is not just a few arbitrary voices—saying that the issue needs fresh attention.

A principle embedded in the reform of state and private pensions is that women should accrue retirement income in their own right. That is reflected in the fact that, since 2016, women no longer accrue state pension rights through their spouse’s entitlement and that, in a DC world and with pension freedoms, women’s hopes of depending on their partner’s accrued long-term savings are much weaker. The environmental factors shout out that the Government have been successful in consolidating auto-enrolment. However, this is an area of outstanding weakness and needs a new look because, in summary, women make a huge economic contribution by caring, for which they face financial penalties. There is an expectation that they will accrue pensions in their own right, but the support given to them to achieve that still has significant weaknesses.

My amendment and that of the noble Baroness, Lady Janke, ask the Government to review and report on the nature of the pensions gap and on further measures to address it, because the demographics clearly show that the one thing that the state depends on is that women will be carers—even more so going forward. However, as a consequence, they end up with reduced financial resilience when they come to retirement.

I am conscious of there being competing issues on Report; there are some very important issues in this Bill that noble Lords wish to return to. I am trying to take that into account. There is, however, a growing consensus. It is not aggressive; it is just saying—as I saw when I ran through the history of how we built up the carer’s credit—that the Government need to give this attention. There is consolidated auto-enrolment and a range of areas where the Government are reviewing what they can do, but they have not put centre stage how efficiently this is working for carers; they need to look at that.

Again, conscious of the competing demands on Report, I urge the Government to respond to the noble Baroness, Lady Janke, and myself as positively as they can to show those communities that are building up together—the gender alliance can be quite formidable when it gets truly organised—that there is a responsiveness that says, “Yes, we will review these issues.” I have loads of emails that say, “I am so glad you are raising this”, and, “Say this and say that.” I have probably overindulged and not covered half the list of things that people want to say. They will, however, be listening to the Government’s response because they want the Government at least to accept that they should give some attention to this issue again.

--- Later in debate ---

It would be very valuable to us if the noble Baronesses, Lady Drake and Lady Janke, continued to work with the Government in helping us to deliver on our strategy to tackle the important issue of the gender pensions gap; I am sorry, I do not mean to miss out the noble Baroness, Lady Sherlock, in that. With that in mind, I hope that the noble Baroness, Lady Janke, will feel able to withdraw her amendment at this stage.

[Baroness Drake]

I want to take the first opportunity to come back on this because I am conscious that a lot of people are interested in this debate.

I am a little disappointed that the major part of the Minister’s contribution was a bit of a push-back, saying that the Government are all over this and that this is fine when evidence for that is not there. He did become more conciliatory at the end; I hope that the department find a way to bring together an eclectic group of people.

I simply disagree with some of the things that the Minister said. In reference to the small pots, the DWP did a great deal of work on the earnings threshold. It was set at a much lower level based on the DWP’s work, though perhaps not under the current Administration. In the review that led to that threshold going up—originally, it would have gone up to as high as £12,500 if a stroppy group of Peers had not turned up every time automatic enrolment earnings threshold regulations came before the House; in the end, somebody waved the white flag and said, “Oh, freeze it, we can’t face that lot every year”—the reason given, which is on the record, is that if you take it lower than £10,000, it produces small pots, which are inefficient to the industry. Well, that is irrelevant. This is a piece of public policy for mass coverage. That is what made me so angry. It was not based on a gender analysis; it was based on inefficiency in the industry. I invite noble Lords to go back to the report that gave the reason for raising that earnings trigger. There is evidence there. It may be that more modelling or more debate about the behavioural impact of coming significantly below the trigger is needed, but that work was done by the DWP. It may have a different view now but its view a few years—perhaps 10 years—back presented the evidence in a different way.

I do not disagree with the Minister that automatic enrolment has had a real benefit for women—if they are in the eligible population. If they are not, they cannot be among the people gaining from the upside of auto-enrolment. Many carers are precisely the people who are not in the eligible population.

I entirely accept that for a lot of women, an absolute improvement arose as a result of the new state pension, but the pension gap—the pay gap—is about relativity. If you give a man a pay rise of £10 and you give a woman a rise of £5, you can stand up and assert, “The woman is £5 better off: let us celebrate!”. What you have missed is that the pay gap has increased, because the man got £10. The benefits of the single state pension improve the relative position of a lot of people, not just the low-paid but huge numbers of people right across the public sector in DB schemes and generous DC schemes who, for a most modest increase in their national insurance, got that improvement in the state second pension together with the benefits of auto-enrolment or their defined benefit pension system as well. Therefore the relative position of carers was disadvantaged. Yes, their absolute position over a certain period—or after a certain period, although that is not the case—has improved, but the relative relationship did not, because everybody had that benefit from the reform to the state second pension.

I do not want to dwell on that, but there is a community out there who, if I did not do them justice and push back, would say, “Jeannie, why did you just accept those arguments?” I take the Minister’s final remarks about working for the Government. There are groups out there in industry, employers, academics and gender groups who want to work this out with the Government. I hope that the Government can find a way fairly soon to bring together a working group, or whatever. There is a feeling, “How does one communicate to the Government the growing feeling on the gender pension gap?” I felt that I had to push back, because there was a slightly dismissive approach that there was no gender pension gap problem, and there is.

[Earl Howe]

I hope that the noble Baroness will not go away with that impression. We are aware that there is a gap to be bridged. The key point I would ask her to reflect on is that, despite the desire to go faster in this area, there is a risk in doing so. We have learned lessons from the phased approach that we have already adopted. It was the right approach. The gradual approach brought everybody on side. We gathered evidence in the process; we are still gathering that evidence, and the evidence-based approach is the other watchword to bear in mind.

Pension Schemes Bill [HL]

Baroness Drake Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 26th February 2020 Grand Committee

[Baroness Neville-Rolfe (Con)]

My Lords, I look forward to hearing what my noble friend the Minister says about this and whether the sort of concerns that have been expressed are already dealt with somewhere else. A very good point has been made.

I want to ask a question on Amendment 27, in the name of the noble Lord, Lord Vaux. He talks about the value of the assets of the scheme, and my noble friend Lady Altmann made this point; there is a big difference between an actuarial valuation and an insurance valuation in a scheme. If you were to base this on an insurance valuation, you would catch quite a lot of pension schemes, including those which probably could pay some dividends. I was a little concerned about that, and I would like some clarification when we come to wind up on what is intended.

[Baroness Drake (Lab)]

My Lords, I support the principle behind Amendment 27, in the name of the noble Lord, Lord Vaux, but equally I have sympathy with the comments of the noble Lord, Lord Flight. When it comes to dividends, the mischief may be done regarding money leaving the sponsoring employer’s company before the regulator can mobilise its full armoury of powers. This is particularly true where the dividends are paid to parent companies overseas, where pursuing a legal route by the regulator may be difficult, even more so if we leave the EU, because jurisdictions will change—except possibly foreign-owned UK banks, where in fact the PRA has the power to intrude pre-emptively on dividends going over to the parent company. To that extent, there is an element of precedent, and the PRA would take into account the debt in the pension fund in considering the sustainability issue when it strikes a view on dividends paid to the parent company.

I give credit to the proactive approach that the regulator is now taking to red flag where there is a kind of big ratio between dividends and deficit payment. However, that must be retrospective. The issue is capturing that mischief at the point when the money leaves the company; I am particularly concerned about where it is a foreign-owned company. Therefore, if some way could be found—perhaps by the regulator working with the department—to embrace dividends in some way in the notifiable events regime, that would be helpful. It is a problem, and once the money is gone, it is difficult to chase it, particularly when you have to go to jurisdictions where the power of TPR may not be strong.

[Baroness Sherlock (Lab)]

My Lords, the Committee should thank the noble Lords, Lord Vaux and Lord Balfe, for having enabled this debate. One gets a high quality of debate on pension Bills; it is very well informed indeed.

We have been left with three questions. Is there a problem? Is it getting worse? And what are we going to do about it? I think there is a pretty much unanimous view around the Committee that we have a problem and that it is not going to disappear. As more DB schemes close, they will pay out more in pensioner payments, leaving them less to invest and reap returns, so they will start de-risking their remaining investments. This is the moment we have to address that.

We know that there is a problem. As my noble friend Lady Drake said at Second Reading, the Work and Pensions Select Committee report highlighted that half of FTSE 350 companies paid out 10 times more to shareholders than to their DB pension schemes. However, in some ways the key issue is the ratio, which was touched on by a couple of noble Lords. TPR certainly mentioned it in its annual funding statement, and it drilled down in its Tranche 14 Analysis for DB pension schemes, published last May. It looked at the FTSE 350 companies that sponsor DB schemes as the main or primary sponsoring employer and said that it found that

“The median ratio of dividends to DRCs”—


deficit repair contributions—

“has increased from 9.2:1 in 2012 to 14.2:1”,

in the latest figures available, so it has gone from nine to 14 between 2012 and last year. Clearly, this is going in the wrong direction. It noted:

“This is mainly driven by the significant increase in aggregate dividends over the period, without a similar increase in contributions.”


Therefore we have a problem. The regulator itself said in its last funding statement that it remains

“concerned about the disparity between dividend growth and stable DRCs”,

and it highlighted recent corporate failures. If the regulator is concerned, then the Minister should be concerned.

The Minister’s argument may be that the regulator already runs an internal control system, where it flags high dividend payments. A number of noble Lords, however, made the point that it is retrospective and that, depending on the valuation, it may not pick up all the areas where there is a problem. Noble Lords also cited TPR’s funding statement, which set out the key principles behind its expectations about what should happen when an employer is weak, the ratio is high, or the employer cannot support the scheme.

Can the Minister assure us that there are not more cases coming in with high ratios and long recovery plans? The TPR says it is going to stop that. Is it not a problem anymore, or is there a target for when it will not be? TPR could refuse to agree a funding strategy for a scheme in various ways but, as my noble friend Lady Drake pointed out so clearly, that is, first, retrospective; secondly, what happens if the money goes overseas? I would be grateful if the Minister could pick that up.

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[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

I thank the noble Lords for tabling these amendments and all noble Lords for their contributions to this debate. It would be helpful to consider these amendments together, as they seek to address the payment of dividends when a defined benefit pension scheme is in deficit. One amendment seeks to prevent the payment of a dividend unless signed off by the trustees and the regulator; the other would require the sponsoring employers of pension schemes to submit a notice and accompanying statement to the regulator and to trustees when the employer declares a dividend in certain circumstances.

I do not think that the amendment to the Companies Act would have the effect that I believe is intended, as there are various technical problems with it. I will not go into these now, as it is more important to address the principles. The Government agree that defined benefit pension schemes in deficit should get a fair proportion of the resources available to employers.

The Government believe that they are taking a proportionate approach. The problem is not the payment of dividends; it is that some companies do not pay enough into their defined benefit pension schemes as part of the recovery plan when the scheme is in deficit. We believe we can address this problem proportionately without inhibiting reasonable dividend payments, which are a legitimate and essential part of normal business activity. We inhibit investment in UK business at our peril. A strong, profitable employer is the best possible protection for pension scheme members.

In addition, I should point out that pension schemes are also major investors. They receive significant dividends, and inhibiting or blocking these payments would impact their income and funding position.

The Pensions Regulator can, and does, take action to ensure that sponsors treat their schemes fairly. For example, in one case, a defined benefit scheme is now better funded after an upfront payment of £10 million, a reduction in the recovery plan length from 13 to seven years, annual deficit recovery payments of £3.7 million and a commitment to stop dividend payments for six years.

Information about dividends paid by these companies may be needed, but this is already available for public companies and can be obtained for private ones. The regulator takes this into consideration when it is looking at risks to a pension scheme. It would be disproportionate and unnecessary to require the sponsoring employers of pension schemes to submit a notice and accompanying statement to the regulator when the employer declares a dividend. Provided that a suitable recovery plan is in place, and the employer has the resources to pay the additional deficit repair contributions agreed, the company should be able to choose what it does with the remainder of the distributable reserves—it is rightly subject to business priorities.

But we do need to do more to ensure that the regulator can take a tough line where needed. That is why we are taking a power in this Bill to set out more clearly in secondary legislation what is required for an appropriate recovery plan. The secondary legislation will be informed by the regulator’s consultation on its revised funding code, and will work in tandem with it. The code will set clear expectations on what is an acceptable recovery plan, include guidelines on recovery plan length and structure, and support the regulator in enforcing these standards.

I turn now to some of the specific questions raised. The noble Lord, Lord Vaux, asked why the requirement under new Section 69A for a notice and accompanying statement cannot be included the Bill. New Section 69A is intended to give the Pensions Regulator information about events that pose greatest risk to pension schemes. The range of events for which a notice and accompanying statement must be given will be varied and will likely change in time. As such, the Government consider this to be a matter that is appropriate for secondary legislation. By setting out the range of events that are subject to the notification requirement in regulations, this enables new events to be added, or existing events to be removed, in order to keep pace with changing business practices.

The noble Lord, Lord Vaux, asked: why do we not propose to require a notice and accompanying statement when a dividend is paid? Dividends paid by companies with a pension scheme surplus, or those where an appropriate recovery plan is in place and deficit repair contributions are being paid, are unlikely to have adverse impact on the scheme or require any mitigations. A notice and accompanying statement about dividend payments by these companies would be unnecessary, and handling this information would be an ineffective use of the Pensions Regulator’s resources. Instead, the regulator will focus on companies where schemes are in deficit and where an appropriate recovery plan is not in place. Information about dividends paid by these companies may be needed, but this is already available for public companies and can be obtained by private ones.

The noble Lord, Lord Vaux, asked: if dividends are not limited, is there not a risk that all the money will be gone before the needs of the scheme are considered? The trustee and sponsoring employer agree an appropriate funding target and deficit repair contributions to eliminate any deficit over an appropriate period. If an appropriate recovery plan is not in place, the regulator has powers to impose a schedule of contributions. Provided that an appropriate recovery plan is in place and the agreed deficit repair contributions are being paid, it is right that how other resources are used is a matter of business priorities. It would not be helpful or proportionate for the payment of dividends to be notified to the regulator.

Of course, there is a risk that excessive dividend payments could be made, which could result in the sponsor being unable to meet its obligations to make payments as part of the recovery plan, but this is very much the exception rather than the rule. We think that intervention to prevent dividend payments in some circumstances poses a greater risk of inhibiting investment in UK business and that our approach can deter inappropriate dividend payments and put things right if that happens.

The noble Lord, Lord Sharkey, requested information about the regulator’s success in engaging with employers, and we will write to the noble Lord with that information.

[Baroness Drake]

Does the Minister accept that a regime for notifying dividends is not necessarily the same as stopping the payment of dividends?

[Baroness Stedman-Scott]

I will carry on and answer the question from the noble Lord, Lord Flight, and then I will answer the question asked by the noble Baroness, Lady Drake.

The noble Lord, Lord Flight, asked what the Government are doing to reform the UK’s dividend regime. The Department for Business, Energy and Industrial Strategy is considering the case for requiring companies to disclose information about their distributable reserves from which dividends are paid. The Institute of Chartered Accountants in England and Wales has been asked to provide technical advice and options for doing so. It is expected to report shortly. Sir Donald Brydon’s recent independent review into the quality and effectiveness of audit recommended that directors make a statement that the proposed dividends would not threaten the existence of the company and are within known distributable reserves, and, in some circumstances, that the distributable reserves should be subject to audit. Further consultation on this is expected later this year. The department has welcomed the Investment Association’s recommendation to companies that they should publish a dividend policy setting out the board’s long-term approach to making decisions on the amount and timing of return to shareholders.

In answer to the question asked by the noble Baroness, Lady Drake, yes, notifying is different from stopping. We do not want to stop them; we want to focus on ensuring that an appropriate recovery plan is in place. Things can be put right.

The noble Baroness, Lady Bowles, asked how the Pensions Regulator knows what resources the employer has and whether a recovery plan is appropriate. In assessing the appropriateness of a recovery plan, the Pensions Regulator looks at the strength of the employer covenant, which is a measure of the ability of a scheme’s employer to support the scheme now and in future. The regulator takes account of a range of employer-specific information, including underlying trading strength and trajectory, profits, cash flows, debt structure, market risks and opportunities, asset strength, and insolvency risk. This can come from a range of sources including statutory accounts, publicly available information such as credit ratings, market analysts’ views, sectoral analysis and analysis performed by the trustees, the employer or its adviser. The regulator will also focus on how a company uses the cash flow it generates to assess whether a scheme is receiving an appropriate and fair share of these amounts. Greater clarity will be provided through the provisions we are proposing in the Bill, and the regulator intends to set clearer guidelines on recovery plan length and structures for schemes in different circumstances. This will help to improve regulatory grip and make enforcement easier.

The noble Baroness, Lady Bowles, also asked how we will ensure that companies with significant available resources address defined benefit pension scheme funding shortfalls more quickly. Most employers do the right thing and treat their schemes fairly, but we know that this best practice is not universal and that some employers are not devoting a fair proportion of available resources to paying down deficits. We are determined to do something about this.

--- Later in debate ---

[Baroness Stedman-Scott]

The last word I would use to describe the noble Baroness is simple; that is not the case. She and other noble Lords have raised some interesting, valid and appropriate points on this issue. I believe that the best way that we can delve down into this and, I hope, give the comfort that they are looking for, is to meet to discuss it outside the Committee, which we are happy to do.

[Baroness Drake]

I would just say that my argument is not with the noble Baroness personally; she will be provided with the arguments to answer the points we are asking. The argument she put was that the recovery plan would be the route through which one would deal with an excessive payout of dividend, but the recovery plan is also based on an assumption about the strength of the sponsoring employer covenant. If, after that recovery plan is settled, there is a huge dividend payout—particularly to an overseas parent—which impacts the strength of that covenant, I cannot believe that the regulator would sit there and say, “We will wait until the next actuarial valuation and the new recovery plan before we act”. It would act: it has a range of powers to act straightaway. If there is a material change in the constituent elements that went into the recovery plan, the regulator has to act. A major excess of dividend payment from the sponsoring employer could materially impact the covenant strength. That is already in legislation. We just want to capture the impact of the high levels of dividend payment.

[Baroness Stedman-Scott]

I thank the noble Baroness for the points she has made. I think we should put this into the conversation that we will have to try to give answers which give noble Lords the comfort they need. My officials will call a meeting, and we will look at Hansard and try our very best to answer all the specific questions and allow further debate to resolve these issues.

--- Later in debate ---

Moved by

[Baroness Drake]

37: Clause 118, page 105, line 4, after “service” insert “(which may be publicly or privately owned)”

[Baroness Drake]

My Lords, I shall speak to Amendments 37, 47, 48, 60 and 61. Amendments 37, 47 and 60 place in the Bill that there can and will be a publicly owned pensions dashboard. The Minister may give ministerial assurances that it is intended that there will be a public dashboard; unfortunately, ministerial Statements have currency only until the next occupant. There is no requirement in this Bill as drafted that would require a future Secretary of State to make such a provision.

The amendments require that the dashboard ecosystem will include a publicly owned dashboard. The Government’s current policy,

“supports the coordination of an industry-led dashboard”—

leading—

“to the creation of a dashboard service designed, developed and owned by industry”.

The whole of the UK’s second-tier pension system will be mandated to participate in dashboards owned in the industry, giving rise to major public good considerations, yet nowhere in that wording is there a requirement to set up a publicly owned dashboard, nor is there one in the Bill.

The DWP feasibility study launched at the end of 2018 set out a clear direction of travel towards a single non-commercial dashboard before moving towards multiple dashboards. By April 2019, in responding to the consultation on their study, the Government had shifted their view to commencing with the simultaneous testing of commercial dashboards. Of the 125 replies to the consultation, 15 were from individual citizens and according to my calculation, nearly 60% were from financial service providers and associated trade bodies and six were from consumer bodies. By late 2019, in a previous version of this Bill, and in this Bill and its impact assessment for this version, commitment to a publicly owned dashboard has faded further.

Amendments 48 and 61 do not prevent commercial dashboards being authorised. They seek to ensure that the Government secure a level of confidence in operational delivery, security, consumer protection and insights into customer behaviour by commencing with a publicly owned pension dashboard for at least a year, and that the Secretary of State should lay before each House of Parliament a review of that service before commercial dashboards enter the market. A year is not a long time, given the scale of the consumer interest. If the Secretary of State believes that there is good reason for taking longer than a year, then my noble friend Lady Sherlock and I will be guilty only of prescience.

--- Later in debate ---

[Baroness Drake]

My Lords, this is the first chance Parliament has had to scrutinise this major project. I am not asking for the project to be rushed. I am the last person who would want to set up MaPS or the DWP to fail. I wish them well and to succeed. I do not have a negative view, but I want this project to work.

The Minister gave assurances that there will be a public dashboard, but it is not in the Bill. I could cite various previous occasions when Ministers made assurances about things but they did not materialise. If we accept, which I do, the sincerity with which the Minister has committed to there being a publicly owned dashboard, I see no reason why a little amendment to the Bill could not capture that assurance, so that the next Secretary of State does not change their mind.

On the ownership of the dashboard, I was actually rather worried—not reassured—by one comment the Minister made. He said that ownership in the long term, with a whole series of unknowns about how things will develop, is something that will need to be considered. That may be true; however, given those unknowns and that we do not know how policy will develop, the delegated powers in this Bill should not take to themselves the ability to make fundamental changes to the ownership of the dashboard. Because it is of such significance, that issue should come back to Parliament. Does the Minister accept that point?

--- Later in debate ---

[Earl Howe]

I believe I am right in saying that while your Lordships’ Delegated Powers Committee had some trenchant things to say about the delegated powers in the rest of the Bill, it felt pretty relaxed about the powers in Part 4, because it recognised that it was absolutely necessary to have the kind of flexibility I referred to. We must take it that the committee looked at these matters in some depth. Clearly, it did not feel constrained in criticising the nature of the powers in other parts of the Bill. I think the delegated powers here are necessary. I do not think we should be frightened of them, but I can see that the accumulation of them might appear off-putting to noble Lords.

[Baroness Drake]

I am conscious that I was a member of the Constitution Committee. The issue is not that simply the Government do or do not want flexibility. The issue is that such extensive delegated powers are being taken in the absence of significant areas of policy being settled. That is not the correct way to approach legislation.

[Earl Howe]

I hear what the noble Baroness says. It is not that the policy is not settled but that the implementation of the policy is not settled. We know broadly what we want to achieve but the detail has yet to be worked through; including the functionality and the way that the liability model will form. We do not know all the answers; we know some of the answers, but not all of them. I do not accept that the policy as such is a blank sheet of paper.

[Baroness Drake]

I beg leave to withdraw my amendment.

Amendment 37 withdrawn.

Pension Schemes Bill [HL]

Baroness Drake Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 28th January 2020 Lords Chamber

[Baroness Drake (Lab)]

My Lords, I draw attention to my interests in the register. I too welcome this Bill, but I believe that parts need strengthening.

The Pensions Regulator protects pensions from the moral hazard of employers avoiding their responsibilities, but the BHS and Carillion cases raise two questions of public interest to tackle today: is the regulator deploying its existing powers in an effective and timely manner, and are the powers in the regulator’s armoury sufficient to prevent employers avoiding their responsibilities?

The regulator’s recent activities have focused on using and testing the full range of existing powers. This Bill strengthens them—which is welcome—extending when an employer can be required to contribute money into a scheme, and enhancing powers to collect information and sanctioning those that mislead on corporate activities.

During the Work and Pensions Select Committee inquiry into BHS, documents from the regulator revealed that on 9 March 2015 the chair of trustees advised the regulator that they were still awaiting from the company information needed to make the moral hazard assessment. Two days later the company was sold.

Clause 107 introduces new civil and criminal sanctions. I welcome the Government’s intention to address what they describe as plundering by “reckless bosses”. But concerns have been expressed, including by the Association of Pension Lawyers, that a power designed to prevent future BHS and Carillion-type situations has been drawn incredibly widely, such that it could criminalise minor actions or ordinary business activities and expose third parties such as banks and even trade unions to sanctions, giving rise to consequences not properly considered. I certainly support stiffer sanctions, but these concerns should be probed, given the range and credibility of the people expressing them. Will the Government give consideration to the concerns expressed?

Part 5 provides for more enforceable scheme funding standards. One important supporting amendment—referenced by the noble Lord, Lord Vaux—was also captured well by the Government Actuary in evidence to the Work and Pensions Select Committee. The committee’s report said that

“the average ratio of deficit recovery contributions to dividends has declined”

over the last five years for FTSE 350 companies, meaning that more than half of these companies paid out

“Ten times more … to shareholders”


than to their DB pension scheme—largely due to the significant increase in dividends over the period, without a similar increase in contributions.

Financial technology can deliver a pensions dashboard and make a real difference to savers, finding their lost pots and allowing them to see in one place their total pensions savings, state and private, to assist them in making important decisions. A finder service could search the records of all schemes to identify data matched to an individual, which could be presented to the individual to view, transforming accessibility for more than 22 million people. But public good cannot be traded off against commercial interests. Notwithstanding future government decisions on commercial dashboards, there must be a public good dashboard, the governance, control and ownership of which must be with a public body.

The CEO of the Pensions Regulator appeared to be with me in that view, and he emphasised to the Work and Pensions Select Committee on 25 June 2019 that

“there must be a public dashboard.”

It would be extraordinary if the Government compelled all private, public and state schemes to release the data of over 22 million individuals and £7.6 trillion of pensions assets, when individuals can access their own data only in the commercial marketplace because the Government have denied them access to a safe space in a public good dashboard.

The public are with me on this. Surveys of public attitudes conducted by the Money Advice Service, the DWP, the ABI, ComRes and others all found that the public wanted an accessible public good dashboard, publicly owned, which they would trust more than a commercial dashboard. The DWP feasibility study on dashboards in December 2018 stated that

“evidence would suggest that starting with a single, non-commercial dashboard … is likely to reduce the potential for confusion and help to establish consumer trust.”

In April 2019, in response to the consultation, the Government altered their view and referred to simultaneous testing of commercial dashboards and an openness to further functionality, taking multiple dashboards beyond their initial find and view purpose. The impact assessment states:

“Option 2: Government to legislate: (the preferred option). Government supports the coordination of an industry-led dashboard … This will lead to the creation of dashboard service designed, developed and owned by industry, facilitated by Government”.


This is a remarkable statement. There is no public dashboard mentioned, only a commercially owned pensions “dashboard ecosystem”, with no limit on its functionality. There is a reference tucked away in paragraph 50 to the industry being expected to create a non-commercial dashboard—a loose expectation, undefined.

Equal in importance to ownership is consumer protection. The provisions in Part 4 are far too weak. As Which? argued in its briefing,

“it is absolutely crucial that there are strong regulations in place to prevent potential harm against consumers from the misuse of commercial dashboards by providers. The bill does not go far enough to mitigate against this harm, and should be amended.”

The Bill must establish a high bar for consumer protection at the heart of the dashboard which hardwires the best interests of the savers and the resolution of conflicts of interest in the sole interests of members and beneficiaries. Transactional dashboards should not be allowed without further legislation; they open up a new market, with very significant potential for consumer detriment. We need to understand market and consumer behaviour, with legislation being brought forward before dashboards become transactional.

As has been mentioned, there is also public interest in data standards, the information to be provided, how it is presented, who can hold it and how, and so on. A priority is getting schemes’ basic data fit for release—for many it is not—but demands for further information will come, such as where investments are held and whether they align with the Paris Agreement on climate change.

If the Government compel the release of the data of 20 million to 30 million individuals to commercially owned dashboards, while simultaneously denying the public the right to access their own data through a public good dashboard not owned by the industry, and failing to implement a tough consumer protection regime, then they will fail in their obligation to millions of people. The technology is great and it should be available to people, but in a way that protects their interests.

Efficient ways for workers to share risk are to be welcomed. The Bill allows these collective money purchase schemes to be set up by a single employer or group of connected employers. However, like master trusts, these CMPSs will have to meet a financial sustainability requirement and demonstrate that they have sufficient financial resources to run the scheme for a period of time in the event of a scheme failure, such as employer insolvency and a loss of contributing members, administrative failure or removal of authorisation. As the noble Baroness, Lady Altmann, referenced, it is important to probe how this protection will work and the extent to which the employer who set up the CMP scheme has to financially contribute to the sustainability requirement. This is the issue not of funding the benefits, but of resources to manage a potential failure in a CMP scheme.

I am conscious of the time, so I will be brief. I completely support the noble Baroness, Lady Altmann, in her campaigning on the way the tax system can really disadvantage not only consultants but a large number of low-paid women. I was disappointed that the Bill does not address the gender pension gap. I compliment her on the work she has done, but I want to raise an issue that I keep raising: I will take advantage of my last minute to do so again.

There should be a carer’s credit paid through the social security system towards a private pension, complementing the carer’s credit in the state pension system. Prior to the flat rate state pension introduced in 2016, carers were credited with entitlements in both the first-tier basic state pension and the second-tier state second pension. Now that the second-tier has been totally transferred to the private pension, carer’s credit should not be lost. Prior to 2016, public policy accepted that caring was an economic contribution credited for the first and second-tier pension. Until that crediting is rightly restored, our reforms will have disadvantaged carers.

--- Later in debate ---

[Baroness Stedman-Scott]

My Lords, this has been an excellent debate with excellent contributions. I thank noble Lords for the time they have spent preparing and delivering those contributions. I thank everybody who has taken part. It has been encouraging to hear the positive responses to the measures this Bill proposes. Noble Lords have certainly laid down the challenges we need to address.

The noble Baroness, Lady Sherlock, asked me about our confidence in the Bill. We will have confidence in it if we all work together and turn every stone to make it fit for purpose. I pledge that the Government will do that, and I see no dissention from us working together to achieve that.

I shall deal first with delegated powers and the commitment I made to your Lordships that we will bring forward some examples in relation to Part 1. I do not use the word “trepidation” in conjunction with my noble friend Lady Fookes—it is quite the other way round—but I have her point about Part 3 and the point made by the noble Baroness, Lady Sherlock, about Part 4. We have a wonderful Bill team who are working incredibly hard, and if they tell me they will have them, they will have them.

I understand the concerns raised by some noble Lords in this debate that there are important legal principles at stake before the proposed delegated powers can be exercised properly. In many instances the Government have promised to consult further on the technical substance, particularly in relation in Part 1. There are also instances where there may be a statutory requirement to consult because of a connection to existing legislation. Where there is an intention, promise or legal requirement to consult on the substance of secondary legislation, the legal position is clear: the Government cannot prejudge the outcome. In opening this debate, I said that I have listened to what noble Lords have been telling me, and we are preparing illustrative regulations relating to Part 1 which will be available before Committee. I also pledge to meet noble Lords before Committee to discuss them and all the questions that I will not have time to answer. Noble Lords can see that I have them, so I am not trying to get out of doing the job.

I want to put to bed very quickly the question asked by the noble Baroness, Lady Bryan, about whether we have any plans to increase the state pension age to 75. This is not government policy. The recent independent report recommending raising the state pension age to 75 is not a government report. I hope that gives her comfort.

The multiple dashboard point was raised by numerous noble Lords. The noble Lord, Lord McKenzie, made the point that there should be a single, government-run, non-commercial dashboard to protect consumer interests. We agree that there should be a dashboard that has no commercial aspect. The Money and Pensions Service has made a commitment to deliver such a dashboard.

The noble Lord, Lord McKenzie, asked whether the CDC is just a backdoor to allow employers to close defined pension schemes and impose collective pensions. CDC schemes are unlikely to work well unless the employer and employees are comfortable with the approach. I am sure that employers with open defined benefit schemes are well aware of that. The CBI’s response to our consultation on CDC makes interesting reading. It said that CDC has advantages for both employers and employees and welcomes the opportunity that CDC presents to help fill the gap between defined benefit and current defined contribution schemes.

The noble Lord, Lord McKenzie, was very busy in this debate. He asked why we have not implemented the 2015 Act. Our approach to CDC schemes has developed since, and after much scrutiny we concluded that new primary legislation is necessary to ensure that we get the CDC exactly right for the United Kingdom.

The noble Lord, Lord McKenzie, and the noble Baroness, Lady Warwick, asked why our superfund is not in the Bill. Developing the new regulatory framework for superfunds is a complex task and we are working hard across government and with relevant stakeholders to build consensus on the right approach. We aim to publish shortly our response to the consultation which will set out in more detail our proposals for a future legislative framework. Once this work is completed, we will legislate as soon as we can.

The noble Lords, Lord Sharkey, Lord McKenzie and Lord Vaux, and the noble Baronesses, Lady Donaghy and Lady Janke, raised intergenerational fairness. Fairness between age cohorts has been one of our key considerations from the beginning of our work on CDC schemes. That is why we intend to bring forward scheme rule requirements using regulations under Clause 18. This will ensure that all members, whether active, deferred or pensioner, will share the effects of investment outperformance and underperformance in the same way every year. Should a scheme’s rules not be compliant, it will not be authorised to operate by the regulator.

The noble Lord, Lord McKenzie, and my noble friend Lady Noakes asked how many employers are considering CDCs. It is true that only one company is, namely Royal Mail. However, others are interested. We want to make sure that CDCs work before any future increase.

The noble Lord, Lord McKenzie, asked about automatic enrolment and what the Government are going about the gender pensions gap. Automatic enrolment has been a great success and is already having an impact on the gender pensions gap. Participation in pension saving among eligible women in the private sector has risen from 40% in 2012 to 85% in 2018, which is equal to the figure for men. We have made great progress on that.

[Baroness Drake]

The Minister is accurate. I do not disagree with her description of what is happening with women in the eligible population for auto-enrolment, but it is the millions not in the eligible population for auto-enrolment whom we are particularly concerned about and whom those figures do not address.

[Baroness Stedman-Scott]

The noble Baroness, Lady Drake, is absolutely correct and I am glad that she pointed out the difference to me. I would like to meet her before Committee to address that issue, if she is happy to do so.

The noble Lord, Lord McKenzie, asked why the Government have not legislated for the measures in the 2017 automatic enrolment review in this Bill. The Government have set out their ambition to lower the age at which people are automatically enrolled from 22 to 18 and to abolish the AE lower earnings limit in the mid-2020s. Our approach will be to expand the coverage and increase the amounts put into retirement savings by millions of working people, focusing on younger people and lower earners.

The noble Baroness, Lady Donaghy, and the noble Lord, Lord McKenzie, raised the subject of the self-employed. The 2017 automatic enrolment review concluded that the current automatic enrolment framework is not suitable for the self-employed. They are a highly diverse group and one solution will not necessarily fit all. The Government have committed to carrying out research trials to form the evidence base and future policy.

The noble Lord, Lord Sharkey, asked what the Government are doing to tackle investment scams—an issue raised by other noble Lords. These scams are outrageous. The Government are committed to raising awareness about pensions scams to help protect consumers. As part of this, the Financial Conduct Authority launched its ScamSmart campaign to raise awareness of the steps that people can take to avoid investment scams. During the campaign, 173,000 users visited the ScamSmart site, and 376 users were warned about an unauthorised firm.

The noble Lord, Lord Sharkey, raised the need for a stronger nudge towards guidance, as provided for in Sections 18 and 19 of the Financial Guidance and Claims Act 2018. In that Act, we committed to test different approaches to providing a stronger nudge towards Pension Wise guidance. Pension Wise began this work on Royal Assent of the Act and it was picked up at the launch of the Money and Pensions Service. Trials commenced in October 2019. We are on course for those trials to finish and for qualitative work to be undertaken ready for the publication of the evaluation report in the summer.

Many noble Lords raised the question of whether there should be one dashboard or multiple dashboards, and the views on that were mixed. My noble friend Lady Fookes asked why there should not be just one, but I was interested to hear the noble Lord, Lord Sharkey, say that multiple dashboards will give consumers more choice in where they access pension information. Multiple dashboards will help to meet the varied needs of the 24.5 million people with pensions and wealth. I am sure that this is a topic on which we will have extensive discussions prior to and during Committee.

The noble Lord, Lord Vaux, made the point that the payment of dividends will not be a notifiable event. It would be disproportionate to require every dividend payment to be notified to the regulator. Hindering dividend payments could affect pension schemes, as many are shareholders in companies with DB schemes.

The noble Lord also raised the Dutch scheme. Despite communication issues in Holland, for generations the Dutch scheme worked as though it were a DB scheme. Where adjustments needed to be made, these came as a surprise. We will ensure that in communications to members, particularly at key points throughout a member’s pension scheme journey—on joining and annually, and before and during retirement—CDC schemes are clear and transparent that benefit values may go down as well as up.

The noble Lord, Lord Vaux, asked what safeguards there are to ensure that transfer values are fair. The cash equivalent transfer value represents the actual calculated cash value of providing members’ benefits within the scheme. Legislation provides a framework for the calculation of transfer values that trustees must follow.

The noble Lord also asked why companies should not be stopped from paying dividends if their pension schemes are in deficit. We do not believe that it is sensible to stop companies paying dividends to shareholders, even when a scheme is in funding deficit. Government intervention to block dividend payments could discourage investors and weaken the business, further reducing the security of the defined benefit scheme.

The noble Lords, Lord Vaux and Lord Sharkey, and others raised a lot of questions on that subject. It is not that I am not trying to give an answer; it is just that I am unable to do so at the moment, but I will get back to them.

My noble friend Lady Altmann asked what the sanctions will be for pension scheme providers who do not comply with compulsion. If a pension scheme provider fails to comply, it might be subject to penalties, including fines. The regulator will have a range of powers, including issuing compliance notices, penalty notices and fines.

My noble friend also raised the question of simpler annual benefit statements. The industry delivery group will consider the outcome of the consultation on simpler statements when making recommendations on the information to be included on dashboards.

I pay tribute to my noble friend Lady Altmann, whose tenacity on net pay allowance and tax relief is legendary. She has taught me everything that I know about it. That was a matter raised also by the noble Lord, Lord McKenzie. I am not trying to get out of anything here but it is a matter for the Treasury. However, the Government recognise the different impacts of the two systems. To date, it has not been possible to identify any straightforward or proportionate means to align the effects of net pay and relief at source. However, as announced in our manifesto, the Government will conduct a comprehensive review of how to fix this. We say that we will do it.

My noble friend Lady Altmann asked whether the new scheme’s funding requirements support the plumbing pension scheme. I am afraid that I am not able to give a response to that at the moment but I would love to meet her and give her the information that she requires, as well as making it available to other noble Lords.

I am taking a moment to look through my responses in an attempt to be fair to all noble Lords, although I do not think that I am doing a great job.

The noble Baroness, Lady Drake, raised the important point of carer’s credit and the family carer top-up. The Government recognise the valuable role of carers and the fact that they are disproportionately women. The Government Equalities Office gender equality road map, published in July 2019, set out plans to support carers. They included helping people to return to work after taking time out for caring. We are working closely with colleagues in the Money and Pensions Service to empower people to take informed decisions about saving throughout their lives. I am sure that we will revisit this very soon.

We have talked about the gender pay gap—a matter raised by the noble Baronesses, Lady Drake and Lady Bryan. As I said, automatic enrolment has helped lots of women—I have given the statistics. We want to empower them to take informed decisions about saving throughout their life, but we have made progress in bridging the gap.

The noble Baroness, Lady Drake, talked about the consumer protection regime. The Government recognise that the regulation of dashboard providers is critical to maintaining public confidence. My department has been working with HM Treasury and the FCA to decide how best to ensure that the regulatory regime is appropriate and robust.

The noble Baroness, Lady Drake, also raised the important issue of the security of data on pension dashboards. Ensuring the security of data is key to establishing consumer confidence in the dashboards. The Government are committed to ensuring that the infrastructure includes a level of identity assurance that satisfies the good practice established for national cybersecurity.

The noble Baroness, Lady Drake, and my noble friend Lady Noakes raised the subject of the Pensions Regulator. They questioned the impact of the new criminal offences and wondered whether their scope was too wide. We do not want to stop legitimate business activity, such as lenders taking security for normal financing activities. The Government are clear that businesses must be allowed to make the right decisions to allow them to develop and grow.

The majority of employers want to do right by their scheme. However, we must ensure that sufficient safeguards are in place to protect members’ pensions from the minority who are willing to put them at risk—I mention no names. The Government are committed to the Money and Pensions Service providing a dashboard, and MaPS committed to providing a dashboard in its 2019-20 business plan.

I turn to the contribution of my noble friend Lord Young. His powers of foresight are legendary; I am envious, and I am sure that many in both Houses would like to have them. The same is true of his oratory powers; he is very eloquent and his Front-Bench contributions are much missed in this House. We will meet before Committee. Time is really getting on now. I will respond directly to my noble friend Lord Young on the points he raised, and will have an answer to the point raised by my noble friend Lord Flight on equity release.

My noble friend Lady Noakes asked whether there are adequate appeal processes. The answer is yes and I would be very happy to talk her through those at a later time. Her description of a “half-baked dashboard” is interesting. We undertook a significant consultation and got more than 120 responses. These were published in April 2019 and were taken into account during the development of the legislation. We will continue to seek all views as we develop regulations.

The noble Baroness, Lady Donaghy, raised a point about holders of multiple part-time jobs. Currently, where an individual does not earn more than £10,000 per annum in a single job but earns more than the lower limit of the automatic enrolment qualifying earnings band, they can opt in to a scheme in one job and receive the mandatory pension contribution from their employer on earnings over that level.

The noble Baronesses, Lady Hayman and Lady Jones of Whitchurch, talked about climate change. This is a subject close to our hearts and I will meet with them both to talk in more detail. The Government are absolutely committed to tackling climate change and recognise the concerns that have been raised. We have already introduced legislation to require pension schemes to state their policy. In building on this, the DWP continues to work with the industry.

On dashboards, we expect that initially there will be no more information than is already available; to start with, simple information will become available. The delivery group may make recommendations for adding more detailed information as the needs and interactions of users develop.