Pension Schemes Bill [HL]

Baroness Stedman-Scott Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd March 2020 Grand Committee

Moved by

[Baroness Stedman-Scott]

73: After Clause 123, insert the following new Clause—
“Climate change risk
(1) The Pensions Act 1995 is amended as follows.(2) After section 41 insert—“41A Climate change risk(1) Regulations may impose requirements on the trustees or managers of an occupational pension scheme of a prescribed description with a view to securing that there is effective governance of the scheme with respect to the effects of climate change.(2) The effects of climate change in relation to which provision may be made under subsection (1) include, in particular—(a) risks arising from steps taken because of climate change (whether by governments or otherwise), and(b) opportunities relating to climate change.(3) The requirements which may be imposed by the regulations include, in particular, requirements about—(a) reviewing the exposure of the scheme to risks of a prescribed description;(b) assessing the assets of the scheme in a prescribed manner;(c) determining, reviewing and (if necessary) revising a strategy for managing the scheme’s exposure to risks of a prescribed description; (d) determining, reviewing and (if necessary) revising targets relating to the scheme’s exposure to risks of a prescribed description;(e) measuring performance against such targets;(f) preparing documents containing information of a prescribed description.(4) Regulations under subsection (3)(b) may, in particular, require assets to be assessed by reference to their exposure to risks of a prescribed description and may, for the purposes of such an assessment, require the contribution of such assets to climate change to be determined.(5) In complying with requirements imposed by the regulations, a trustee or manager must have regard to guidance prepared from time to time by the Secretary of State.41B Climate change risk: publication of information(1) Regulations may require the trustees or managers of an occupational pension scheme of a prescribed description to publish information of a prescribed description relating to the effects of climate change on the scheme. (2) Regulations under subsection (1) may, among other things—(a) require the trustees or managers to publish a document of a prescribed description;(b) require information or a document to be made available free of charge;(c) require information or a document to be provided in a form that is or by means that are prescribed or of a prescribed description.(3) In complying with requirements imposed by the regulations, a trustee or manager must have regard to guidance prepared from time to time by the Secretary of State.41C Sections 41A and 41B: compliance(1) Regulations may make provision with a view to ensuring compliance with a provision of regulations under section 41A or 41B.(2) The regulations may in particular—(a) provide for the Authority to issue a notice (a “compliance notice”) to a person with a view to ensuring the person’s compliance with a provision of regulations under section 41A or 41B;(b) provide for the Authority to issue a notice (a “third party compliance notice”) to a person with a view to ensuring another person’s compliance with a provision of regulations under section 41A or 41B;(c) provide for the Authority to issue a notice (a “penalty notice”) imposing a penalty on a person where the Authority are of the opinion that the person—(i) has failed to comply with a compliance notice or third party compliance notice, or(ii) has contravened a provision of regulations under section 41A or 41B;(d) provide for the making of a reference to the First-tier Tribunal or Upper Tribunal in respect of the issue of a penalty notice or the amount of a penalty;(e) confer other functions on the Authority.(3) The regulations may make provision for determining the amount, or the maximum amount, of a penalty in respect of a failure or contravention.(4) But the amount of a penalty imposed under the regulations in respect of a failure or contravention must not exceed— (a) £5,000, in the case of an individual, and(b) £50,000, in any other case.”(3) In section 116 (breach of regulations), in subsection (3)(b), after “10” insert “or under provision contained in regulations made by virtue of section 41C ”.(4) In section 175 (Parliamentary control of orders and regulations)—(a) in subsection (1), after “(2)” insert “, (2A)”;(b) after subsection (2) insert—“(2A) A statutory instrument which contains the first regulations made by virtue of section 41A or 41C must not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””Member’s explanatory statement
This amendment imposes requirements on trustees and managers of certain occupational pension schemes as regards taking into account the effects of climate change and publishing information relating to those effects.

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Moved by

[Baroness Stedman-Scott]

77: Clause 124, page 118, line 11, after “(d)” insert “, (2A)(a), (b) or (d)”
Member’s explanatory statement
This amendment extends to unfunded public service defined benefits schemes the requirement that prescribed conditions are satisfied before trustees or managers may use a cash equivalent to buy into other pension arrangements.

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

My Lords, Amendment 77 seeks to extend the scope of Clause 124 to include transfers from unfunded public sector schemes: those where the pension promised is underwritten by the Exchequer. This amendment ensures parity of protection for those members of unfunded public service schemes.

Clause 124 relates to cash equivalent transfer rights and amends Section 95 of the Pension Schemes Act 1993. It provides the Secretary of State with a power to make regulations that can place new conditions on a member’s statutory right to transfer their pension rights to another scheme. This amendment seeks to ensure that members of unfunded public sector schemes can exercise their statutory right to transfer only once the conditions to be specified in the regulations made under this clause are satisfied. The intention is to apply the same conditions to transfers from unfunded pension schemes as will be applied to transfers from other pension schemes. These conditions can include the member providing evidence or information about their employment link with a pension scheme or their residency overseas.

Pension transfers from unfunded public sector schemes are rare. No concerns in relation to scams were raised during the 2016 government consultation, so transfers from unfunded pension schemes were not included in the original draft clause. The Department for Work and Pensions has since been made aware of criminals trying to set up a scheme that can receive unfunded pension transfers, so we believe this amendment is necessary to safeguard members of unfunded schemes from fraud. Amendment 99 mirrors the provision for Northern Ireland in paragraph 12 of Schedule 11. It is essential to provide the same protection when transferring savings to members of unfunded public sector schemes as those saving in other pension arrangements. For these reasons, I beg to move Amendment 77 standing in my name.

[Baroness Altmann]

My Lords, I support my noble friend’s amendment and will speak to my Amendment 78, which is grouped here. I fully agree with her that it is important to protect members’ pensions on transfer, whether they come from one type of scheme or another. I am delighted to see the government amendment and its intent.

My amendment would do something that I have sought for a time, and I wondered whether we might be able to get it into the Bill. It relates to partners of pension scheme members who transfer their pension from one scheme to another. One hears so often of a divorced couple where the wife has no pension of her own and has sometimes even had a pension-sharing order. However, when the member’s pension is transferred as a cash-equivalent transfer value, there is currently no mechanism to ensure that the spouse, who clearly has an interest in potentially half that amount, is made aware that that is happening. Of course, once the money has been transferred, should the previous partner have ill intent, it is possible that the spouse—usually the wife—will be left pensionless when in fact she had expected to share the partner’s pension.

This is a probing amendment. I support my noble friend’s amendments and would be grateful to hear whether any other Members of the Committee are interested in this type of protection, which we might be able to request be inserted in the Bill, so that if somebody calls up to transfer their pension, some procedure is in place before that is done to ensure that anyone else with an interest in the pension has given their consent or has at least been informed, which does not always happen.

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[Lord McKenzie of Luton]

My Lords, there are three amendments in this group. Amendment 78, in the name of the noble Baroness, Lady Altmann, focuses on the evidence of a member’s spouse’s consent when a transfer is to be made. We believe that this amendment has considerable merit and are supportive of it. Quite what the technicalities that come to confront us might be remain to be seen, but certainly we should seek to make progress on it.

Regarding the other two amendments in this group, Amendment 99 is simply the Northern Ireland equivalent of Amendment 77, which, as we have heard, deals with unfunded public service DB schemes. I am alarmed to hear that without this amendment they would be attacked by some source. That is rather worrying. Regarding the prescribed conditions that must be satisfied for the purposes of the provision, can the Minister outline what those might contain?

[Baroness Stedman-Scott]

I thank my noble friend Lady Altmann for tabling her Amendment 78, which introduces further conditions to the right to transfer. It would require the consent of a current or ex-spouse or civil partner of the member before a trustee or scheme manager could transfer a member’s savings. This condition would apply where the member was getting divorced or dissolving their civil partnership or might do so in the future. It would therefore apply to all members who might seek to transfer and are married or in a civil partnership.

The amendment would introduce unnecessary and onerous conditions into new legislation. Options already exist for those who seek a financial settlement on divorce or the dissolution of a civil partnership. The law identifies when pensions should be taken into account as part of a financial settlement on divorce or dissolution of a civil partnership, and the courts will make the final decision if there is no agreed settlement.

Where a couple are negotiating a financial settlement on divorce or dissolution of a civil partnership, they are obliged to disclose all assets, including pensions. The process includes provisions to compel disclosure where the court is concerned that the financial disclosure might not be honest or complete. The amendment introduces a radical precedent where someone other than the member will determine the final use of their financial asset without a court order or notice being in place. It is not a requirement for individuals to seek their spouse or civil partner’s consent in respect of other financial assets, such as sole name bank accounts. Why then would we include such a requirement in pension legislation?

In addition, the amendment would place additional burdens on trustees to verify that the spouse or civil partner consents to the transfer. In doing so, it risks causing a conflict with the trustee or manager’s fiduciary duty to act in the best interests of members.

The noble Lord, Lord McKenzie, asked about types of pension and the name of the scheme, and said that people might lose out in a divorce settlement. Both persons in a couple are obliged to declare assets when coming to a financial settlement in the context of the dissolution of their relationship.

[Lord McKenzie of Luton]

My question related to Amendment 77 and unfunded public service DB schemes where there is a requirement for prescribed conditions to be satisfied before trustees or managers can use the cash equivalent. I sought to determine what those prescribed conditions might be.

[Baroness Stedman-Scott]

In the circumstances, I will write to the noble Lord if he will allow me.

In conclusion, for the reasons I have outlined, I ask the noble Baroness, Lady Altmann, to withdraw her amendment.

[Baroness Drake]

This has become more problematic because of pension freedom. Before that, you could not quickly rush to play Gauguin in Tahiti and disappear, taking all your money with you, because you could not get it out in that way. At the age of 55, you can now do that if the taxman can chase you for the marginal rate of tax. There were partners, particularly women, who had certain protections in DB. In DC, at least the requirement to annuitise left some mechanism to temper this problem, although it did not deal exclusively with it. Pension freedom has transformed that.

I know that we will come later to the issue of gender and pensions—where I suspect that we will come back to this issue, among others—but there is a real issue here for partners, particularly women. If the person with the pension chooses simply to take the cash and go, once that has happened, it is very difficult for the partner to protect themselves or do anything about it. That is the underlying tension.

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[Baroness Sherlock]

My Lords, I want to ask a question before the Minister comes back on this. In her reply, she gave a rather forceful defence of the current situation and directed the Committee’s attention to the courts as a means of settling this. However, she made the point that an agreement on pension sharing may already be in place. The problem is that this allows an agreement that had previously been reached to be frustrated by someone taking advantage of the pension freedoms. If the Minister does not like the way that this is being is sold, will she go back to the department and ask for some advice on whether there is a problem here? Then, when we come back on Wednesday, we can at least have a conversation about whether we agree that there is a problem here, and then we can think about the best way to address it.

[Baroness Stedman-Scott]

The suggestion made by the noble Baroness, Lady Sherlock, is very helpful. I would be happy to do that before we come back to this on Wednesday.

[Baroness Altmann]

I thank my noble friend for her reply, which does not come as a surprise to me. I also thank noble Lords for their useful contributions.

I believe that there may be an issue here. I hope that the department will consider it. As the noble Baroness, Lady Drake, specifically said, things are different now with pension freedoms, whether for DB or DC. If there is a pension-sharing order and a member transfers out of their DB scheme and takes a cash equivalent transfer value when their spouse had relied on a guaranteed pension income from half of that defined benefit pension, now that we have the freedoms, that pension could be dissipated. Certainly, a cash-equivalent transfer value, in terms of buying an annuity with an inflation protection to replace the income that could be lost, is not likely to be financially feasible. I accept that this would be an extra burden and that it would need careful consideration. I echo the request from the noble Baroness, Lady Sherlock, that the department considers this and sees whether there is a way of protecting these women. I beg leave to withdraw my amendment.