Pension Schemes Bill [HL]

Earl Howe Excerpts

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

[Earl Howe (Con)]

My Lords, I am grateful to my noble friend Lady Noakes for tabling these amendments to Clause 107 and for the helpful conversations that we have had about them in recent days.

I start by saying that the Government understand the genuine concerns that have been raised during Committee and by my noble friend through these amendments. The first point that I would like to make —I think that it is necessary for me to make it—is that, in introducing the new criminal offences, the aim is to target individuals who intentionally or knowingly mishandle pension schemes or endanger workers’ pensions by behaviours such as chronic mismanagement of a business or avoiding pension liabilities. It is not the aim to frustrate legitimate business activities where they are conducted in good faith.

The key point is the one that I made in Committee: that it is an offence only if the person intended to harm the scheme or should have known that the conduct would have that effect and they have no reasonable excuse for their actions. The decision on whether a person does or does not have a reasonable excuse and ultimately did or did not commit an offence in a particular case is a matter for the courts. However, in coming to such a verdict, the courts will have paid due regard to all the circumstances in the individual case in question. That, of course, includes coming to a view on whether the person’s excuse for acting in that way was a reasonable one. The burden of proof on that question falls on the Pensions Regulator. In other words, the Pensions Regulator would need to prove that the actions of the individual were unreasonable.

The other dimension of the issue is that it is important that, where the elements of an offence are met, no matter who has committed it, the regulator should be able to respond appropriately. Any restriction of the persons potentially in scope would create a loophole for those people to act in such a way.

Having said all that, we are aware of the concerns raised by industry and by noble Lords. To address those concerns, I draw the House’s attention to the general prosecution policy which the regulator already publishes and which sets out the matters that it considers when using its prosecution powers.

My noble friend mentioned the regulator’s guidance. The regulator has stated that it will also issue further specific guidance explaining its approach to prosecuting the new offences under Part 3. Before it does so, the regulator will consult the industry on the contents of the guidance for the new offences, and it expects to publish this guidance prior to the commencement of these provisions.

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[Baroness Sherlock [V]]

My Lords, I am grateful to the noble Lord, Lord Vaux, for returning to this issue. We all know that there are some DB schemes with significant deficits and employers who could be doing more to clear them more quickly. Let us not forget the work done by LCP, which showed many firms paying out dividends 10 to 20 times their pension deficit payments, or the regulator’s annual DB funding statement last year, which raised concern about the disparity between dividend growth and stable deficit repair contributions.

The problem will not disappear. As more DB schemes have closed, they will soon be paying out more in pensioner payments, leaving them less to invest and with a need to de-risk their remaining investments.

The Covid pandemic is going to make things worse. The Pensions Regulator reports that, so far, only around 10% of schemes have agreed a temporary suspension or a reduction in DRCs post Covid, but more trustees and employers are in the process of discussing possible requests to suspend or reduce contributions. We all know that the full force of the economic storm has yet to hit us.

The noble Lord, Lord Vaux, mentioned the no-dividend rules for Covid business loans. The regulator’s Covid-19 guidance on defined benefit scheme funding and investment says that, if trustees face requests to suspend or reduce contributions, then they should seek mitigations. It gives an example, saying:

“All dividends and other forms of shareholder distribution to stop throughout the period of suspension and not to start again until the deferred or suspended contributions have been paid.”


TPR will still require trustees to report agreements to suspend or reduce contributions and provide information on the mitigations.

Ministers say that the regulator can chase employers if resources are taken out that should not be taken, but we know what the danger is if action is taken only after a dividend has been paid out. If the dividends are paid out by a UK employer to an overseas parent, it can be very difficult to get them back. It is entirely possible, in these difficult times, that if a company is in trouble and its parent company is based overseas, there may well be a move to repatriate assets to the home state. These amendments seek to tackle that problem not by stopping dividends or even buybacks where there is a deficit but by making them a notifiable event in certain circumstances.

The noble Lord, Lord Vaux, has softened his amendments, but he has still made a compelling case. Therefore, if the Minister does not want to accept these amendments, can he tell the House how he will ensure that the next BHS or Carillion scandal will not be a company with a foreign parent seeking to repatriate assets before abandoning its obligations to the pension scheme? I look forward to his reply.

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Vaux, for tabling these amendments to Clause 109, which brings us back to an issue that we debated at some length in Grand Committee. It would be helpful to consider these amendments together, as they seek to make the declaration of a dividend or share buyback the subject of a notice and accompanying statement to the Pensions Regulator and trustees of the pension scheme. In the case of a share buyback, this notification would be required where the value of the assets of the scheme was less than the amount of the liabilities. In the case of a dividend, notification would be required if the amount of the dividend exceeded the annual deficit repair contribution and the amount of the annual deficit repair contribution was less than a percentage of the scheme’s deficit. That percentage would be specified by the Pensions Regulator.

I understand where the noble Lord is coming from, but I will address his concern with an explanation of Clause 109. The purpose of the clause is to make sure that the Pensions Regulator and trustees of a defined benefit pension scheme have prior knowledge about corporate transactions or events of which they would otherwise have been unaware and that pose a risk to the scheme and ultimately the Pension Protection Fund. The clause would also ensure that the trustees work with employers to mitigate the effect of such risks.

The Pensions Regulator and the trustees of the pension scheme are able to access information about dividends and share buybacks already. There are well-established processes whereby the regulator is able to get the information that it needs on dividends and similar payments as it assesses covenant strength and the ability of the employer to make contributions to deal with any deficit. Adding additional notifications of the kind that the noble Lord is suggesting is unlikely to be of any help. What it would certainly do is put an unnecessary burden on both employers and the regulator.

The regulator simply would not have the resources to deal with these additional notifications. That is not a trivial point: let us remember that it is a risk-based regulator and must focus its resources where it can do most good. We think that this focus is best directed at ensuring that recovery plans are robust. That is the best way to ensure that schemes are treated fairly. It is the strength of the recovery plan that is key here. Of course there will be occasions when dividends are paid without the regulator’s knowledge, but even if the regulator had been able to prevent that from happening, that would not help the scheme. That is because there is no requirement for the sponsoring employer to pay anything into any scheme deficit other than what is set out in the recovery plan.

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If we end up with a major dashboards mis-selling scandal, this will not be just another PPI. It will be a scandal in a market which the Government actually created by mandating the release of the pensions data of some 22 million people. I am very grateful to so many noble Lords for their support for this amendment, and I beg the Minister to accept it.

[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.

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This amendment does not prevent commercial dashboards. It simply means that they would not start engaging with consumers until the public dashboard has been running for long enough to give Parliament some necessary assurance before enacting the authorisation of commercial dashboards which the Bill permits. All we are asking for is a year’s grace before commercial firms with, in many cases, an unavoidable conflict of interest are authorised to engage consumers on a new product built on consumer data that the Government have mandated be released. I do not think that that is too much to ask.

[Earl Howe]

My Lords, there was general agreement in Committee that pension scheme members should have access to a dashboard service that is publicly owned and free of potential commercial imperatives. As we set out in Committee, the Government wholeheartedly agree that such a dashboard should be available to all users from day one, alongside dashboards offered by other organisations. We explained that the single financial guidance body, now known as the Money and Pensions Service, can provide a dashboard under its existing statutory functions, but I accept that the Government could provide further reassurance in legislation.

The government amendments reflect this commitment by placing a duty on the Money and Pensions Service to provide a pensions dashboard. The dashboard must display information from private and occupational pension schemes. These amendments also enable the inclusion of state pension information.

In addition, these amendments repurpose the provisions that were in new Section 4A(1)(b), as inserted by this clause, as new Section 4A(1A). The original purpose of these provisions, however, is unchanged. They make it clear that the Money and Pensions Service can carry out functions relating to the provision of qualifying pensions dashboard services by others as part of its pensions guidance function, including providing state pension information. This could, for example, include publishing data standards with which providers must comply.

The amendments also make minor consequential changes to Clauses 119 and 121, as well as to Schedule 9, which relates to Northern Ireland. The duty to provide a pensions dashboard will apply only once the necessary supporting technical architecture is in place and pension schemes are required to provide information to their members via dashboards. I therefore very much hope that the government amendments will be accepted when they are moved.

I will now respond to the amendments tabled by the noble Baronesses, Lady Sherlock and Lady Drake, on the Money and Pensions Service dashboard being the sole dashboard for at least 12 months. The Government have been clear throughout that offering consumers a choice of dashboards is the best way to increase engagement. Our position on this has not changed. Allowing consumers to access their pensions information in the way that they want to is key to putting people in control of their savings.

Having a period of exclusivity for the Money and Pensions Service dashboard, as is being suggested, would seem to achieve relatively little, other than to restrict people’s access to their own information through a route of their choosing. However, what we will not allow to happen is for any commercial dashboard to be launched before that of the Money and Pensions Service. I would like to be clear that the Money and Pensions Service dashboard will be available from day one, alongside dashboards offered by other organisations.

I invite the noble Baroness to note that the Money and Pensions Service has an existing legislative requirement, in the Financial Guidance and Claims Act 2018, to report to the Secretary of State annually on the achievement of its objectives and functions. This report is also laid before Parliament and will provide detailed information about the development, delivery and operation of dashboards.

The noble Baroness, Lady Drake, asked me about the liability model and whether we can guarantee that it will be ready before commercial dashboards can be used. The pensions dashboard programme will develop a robust liability model to ensure that there are clear roles and responsibilities in the event of a breach. This will be in place before the public launch of dashboards.

I hope I have given reassurance that there will be a publicly owned dashboard and that there is a range of reporting requirements that allows sufficient oversight of progress, not least in making sure that the functionality which will underpin all dashboards can be relied upon. I have to say that some noble Lords rather over-egged the argument of functionality risk.

The long and the short of it is that we remain strongly of the belief that multiple dashboards are the best way to ensure that everyone can access their pensions information in the way that they desire. Therefore, I respectfully ask the noble Baroness, Lady Sherlock, not to move her amendment when we come to it.

My noble friend Lord Young has tabled three amendments, covering the Money and Pensions Service dashboard, a date for the introduction of that dashboard, and the verification of identity. I am glad he agrees that the government amendment fully meets his desire for the Money and Pensions Service to provide a dashboard. On providing a timetable for delivery, we are all keen to see dashboards available as soon as possible. However, it is essential to get the design of the service right, to ensure that it provides accurate information and is secure and consumer focused.

On that point, I can assure my noble friend that the pensions dashboard programme put in place by the Money and Pensions Service is taking the necessary steps to deliver the dashboard architecture. In April, it published two papers relating to data. Having deferred consultation on these papers because of the impact of Covid-19, the programme will now run a call for input throughout July and August. It is also bringing together a data working group to finalise a set of data standards and requirements by the end of the year.

The programme is also making progress on the supporting dashboard infrastructure. On 22 June, it started a six-week market engagement exercise with potential suppliers of the supporting dashboard architecture for the pensions finder service and the governance register. This will help the programme to determine the most appropriate route to market in preparation for a formal procurement process, anticipated to start in autumn this year.

Finalising the data standards and the procurement route is key to informing the timetable for delivery. However, it is essential that we do not force upon the Money and Pensions Service an arbitrary timetable set by legislation. I hope that, on reflection, my noble friend will come round to that view.

I understand that my noble friend wants to maintain momentum, and I agree with that. Alongside the annual report by the Money and Pensions Service, which I mentioned, the pensions dashboard programme has committed to publishing a progress update every six months, for the length of the programme. It will also set out a detailed timetable for delivery by the end of the year.

My noble friend also brought us back to the issue of digital identity and how a user of a dashboard is verified. In the March 2020 Budget, the Government reiterated their commitment to the creation of a ubiquitous digital identity market. To achieve this, they created the digital identity unit, which is a collaboration between the Department for Digital, Culture, Media and Sport and the Cabinet Office.

As my noble friend rightly said, an identity verification service is an essential component of the dashboards infrastructure. It will provide the verification required to assure pension schemes—the data providers—that they are returning data to the correct user and to nobody else. The verification service must also meet the needs of users, enabling them to verify their identity without undue difficulty.

On a point raised by my noble friend about funding, I say that the pensions dashboard service, including ID verification, will be free at the point of use for individuals. The identify verification service for dashboards will be managed centrally as part of the supporting infrastructure, as I indicated. Funding options will be carefully considered as part of any proposed solution on identity.

As outlined in the progress update report published in April, the pensions dashboard programme will need to source a functioning, workable identity verification service. It is working with the digital identity unit and the supplier market to explore potential solutions for dashboards. These solutions will be based on managing and mitigating the type of risks associated with dashboards. Developing their requirements will enable the pensions dashboard programme to assess the suitability of available products against robust success criteria.

I say to my noble friend that we understand the need for progress on the delivery of dashboards; we recognise the need for a safe and secure method for verifying someone’s identity, and we understand how important this will be for the success of the dashboard concept. While I can go no further than that, I hope that I have said enough to convince him that his concerns are squarely on the radar, and that he will accordingly feel able to withdraw his Amendment 53.

[The Deputy Speaker]

I have received no requests for noble Lords to speak, so I call the noble Lord, Lord Young.

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Moved by

[Earl Howe]

54: Clause 119, page 108, line 32, leave out “any” and insert “the”
Member’s explanatory statement
This amendment is consequential upon the Minister’s amendment at page 117, line 6.

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Moved by

[Earl Howe]

57: Schedule 9, page 177, line 33, leave out “any” and insert “the”
Member’s explanatory statement
This amendment corresponds to the Minister’s amendment at page 108, line 32.

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Moved by

[Earl Howe]

60: Clause 121, page 113, line 16, leave out “any” and insert “the”
Member’s explanatory statement
This amendment is consequential upon the Minister’s amendment at page 117, line 6.

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Moved by

[Earl Howe]

62: Clause 122, page 117, line 6, at end insert—
“(A1) The single financial guidance body must provide a pensions dashboard service by means of which—(a) information that the trustees or managers of a relevant occupational pension scheme are required to provide by—(i) regulations under section 238D(1)(a)(ii) of the Pensions Act 2004, or(ii) regulations under Article 215D(1)(a)(ii) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)), and(b) information that specified authorised persons are required to provide by general rules under section 137FAA(1)(a)(ii) of the Financial Services and Markets Act 2000,may be requested by, and provided to, an individual or a person authorised by the individual.(A2) The single financial guidance body may, by means of its pensions dashboard service, provide information about—(a) state pensions,(b) basic and additional retirement pensions, and(c) state pension information relating to an individual.”Member’s explanatory statement
This amendment requires the single financial guidance body (the Money and Pensions Service) to provide a pensions dashboard service to deal with information from occupational and personal pensions schemes. It also enables the body to include state pension information in its pensions dashboard service.

[Earl Howe]

I beg to move.

Amendment 63 (to Amendment 62)

Moved by

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[Baroness Sherlock [V]]

My Lords, we all believe that trustees of DB schemes should have a clearly defined funding and investment strategy for insuring pensions in the long term. However, if that is pursued in a way driven by the need to protect members in closed maturing DB schemes, then schemes with strong covenants open to new entrants risk being swept up in an approach that is wrong for them. As closed DB schemes increasingly mature, the regulator will expect them to de-risk and reduce their deficits. However, if that approach is applied in a blanket form it will force some open schemes to de-risk prematurely, putting pressure on employers and, in the railway scheme with its shared-cost basis, on employees too. Given all the concerns expressed, will the Minister accept this amendment?

[Earl Howe]

My Lords, I am grateful to the noble Baroness, Lady Bowles, for her amendment, which touches on a number of important factors to be considered in the development of secondary legislation, including the factors that it lists. I say immediately that I agree that these are all important factors to take into account when developing secondary legislation for defined benefit scheme funding. However, we do not need an amendment to do that. The amendment includes factors that are all taken into consideration during the whole process of framing policy, legislation and guidance.

One of the greatest strengths of our scheme-funding regime is that it operates on a scheme-by-scheme basis because every scheme is different, and it would be unhelpful and inflexible to treat them all the same. The measures in the Bill build on that approach, as will the secondary legislation. The existing scheme-funding legislation has been drafted to ensure that it is flexible enough to apply to all types of defined benefit scheme—for example, whether open or closed. Equally, the scheme-funding measures in the Bill are flexible enough to apply to all types of defined benefit scheme.

In the protecting defined benefits White Paper we were clear that there are a number of examples for suitable long-term objectives and that running on with employer support would be a reasonable course of action for an open scheme. Whether or not the strategy for ensuring that benefits can be provided in the long term is suitable will depend on the specific context of a particular scheme. Additionally, we entirely accept that schemes with different liquidity profiles and maturity will be able to take different trajectories. This is, and will remain, fundamental to the scheme-specific approach. So I assure the noble Baroness and the House that any regulations will also be formulated with considerations such as those outlined in the amendment in mind, where appropriate.

The big danger with an amendment of this kind is that it creates inflexibility. It remains our aim that the scheme-funding measures in the Bill do not change existing flexibilities but, rather, seek to make best practice universal and ensure that all schemes are planning for the long term. It is good practice for all schemes, including open schemes, to set a funding and investment strategy.

My noble friend Lord Young asked whether I could commit to a meeting along with officials to discuss these issues. Yes, I am happy to do that, and if schemes have concerns with what TPR is proposing they can engage with the current consultation. The Pension Regulator’s current consultation on the defined benefits funding code includes a twin-track compliance process that takes account of scheme and employer circumstances. Indeed, the current consultation has a full chapter on open schemes, and I encourage anyone interested to contribute their views.

Regulation-making powers exist precisely to allow the system to be calibrated effectively to ensure that this balance is struck. While the noble Baroness’s amendment reflects a number of factors that are considered while developing policy, we do not need to specify those in primary legislation and indeed, as I hope I have indicated, it would be unhelpful to do so. We need to leave room for the flexibility that I have emphasised; we must leave enough flexibility in the system to allow it to react effectively to future changes. Indeed, in the light of the current social and economic climate, it is very clear that the economic shape of the future is unknowable.

I hope that the noble Baroness will recognise from what I have said that the Government’s approach is fair and proportionate and that she will accept my assurance that appropriate flexibilities are, and will continue to be put, in place. On that basis I respectfully urge her, and urge her with some emphasis, to withdraw the amendment.

[Baroness Bowles of Berkhamsted [V]]

My Lords, I thank all those who have spoken in this debate. I particularly thank the noble Lord, Lord Young, and the noble Baroness, Lady Altmann, for signing the amendment, for making their contributions and for speaking to the Government. It is clear to see that there is support for the amendment from across the House, and I hope that it is also clearer to everyone why preservation of open DB schemes is in the public interest. We are, in fact, in a rather strange situation where the Minister is in agreement with the policy; it is in government policy, but yet there is a significant danger from what the Pensions Regulator has actually said. That is the sole reason why there needs to be something on the face of the Bill that confirms what is government policy.

The Government have a further opportunity to amend this Bill in a way that they consider is better than my amendment and give guidance in a different way. I would be happy to help, but we have run out of time and I have not heard a suggestion that something will actually be presented at Third Reading. This House does not have any more opportunities with this Bill, and I cannot see anything coming down the track to give us another opportunity that would be in time to make a difference with regard to the Pensions Regulator’s obvious position.

This is not a new argument: I have spent 10 years in Brussels arguing the toss on these things, on the difference between IORPs and Solvency II, and I know where the pressure comes from the former FSA—now the FCA. Part of this Bill, on CMP schemes, is fixing a problem for one newly privatised employer. Why dump others who have found good ways to make their DB schemes flourish and last? If the Government do not make it clear, that is what will happen: they may well end up being dumped.

In the first group of amendments, the noble Baroness, Lady Sherlock, said that she did not want CMP schemes to undermine DB schemes. Without this amendment or something like it, they may well have nowhere else to go. This is not a nice-to-have amendment; it is vital. The issue should not be swept into the corner for these pension schemes to die quietly, and I wish to test the view of the House.