Pension Schemes Bill [HL]

Lord Kirkhope of Harrogate Excerpts

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

[Lord Kirkhope of Harrogate (Con)]

My Lords, I want to make just a short contribution to this debate, looking mostly at the provisions and powers relating to the functions of the Pensions Regulator. I declare my interest in doing so as a pension trustee for a UK company scheme.

I support the proposals generally and the emphasis on the need for faster responses to deal particularly with reckless or irresponsible behaviour by employers and, as my noble friend the Minister said in her introduction, certainly to look at “serious wrongdoing” and tackle it. I agree with her on that. We have all seen examples of bad behaviour which have resulted in pension schemes being put at serious risk by deliberate acts or omissions.

In the 2018 consultation paper Protecting Defined Benefit Pension Schemes–A Stronger Pensions Regulator, the Government invited responses to proposals to widen the scope of “notifiable events” to include more corporate transactions and board decisions. The responses were very mixed, partially in the area of possible penalties for failure to comply. As my noble friend Lady Noakes mentioned in her remarks, criminality was, rightly, to be in areas of wilful and reckless behaviour where a mental intent was involved, as is the case in other areas of criminal law. As a lawyer, I worry slightly about giving a regulator—indeed, any institution outside the direct courts—rights in relation to the imposition of criminal penalties. Mere failure to comply with notifiable events was suggested to be subject only to civil penalties. Clause 107 therefore produces a quandary for me. Bad employers should always be criminalised in appropriate circumstances, but applying criminal sanctions to anyone associated with a scheme, including especially trustees, for some areas where simple judgment has been exercised by them could result in some quite minor actions and even normal business activity becoming a criminal matter. The Government should look carefully at this to avoid injustice. That is not to say that there have been many demonstrable situations which need much tougher penalties attached to them. I fully support remarks made earlier by noble Lords on that theme.

I am also concerned at Clause 110(4), where the criminal offence is extended to cover a situation where an individual summoned for interview by the regulator fails to answer a question or provide an acceptable explanation on any matter specified in a notice under new Section 72A(1) of the Pensions Act 2004. I am concerned because an “explanation” is defined as a statement or account that makes something clear. This is of course a highly subjective matter and provides the regulator with a criminal sanction that cuts across the basic rights of individuals, including, so far as the country generally is concerned, the right to avoid self-incrimination.

I fully support the need to tackle serious “offenders”, but the powers of the regulator must be seen as equitable and enforceable. It is not the duty of the regulator, I would submit, to run businesses or make major corporate decisions. Indeed, my remarks are partly to protect the regulator, because it should not be put in a compromising position and provided with powers where it is required to make decisions which are strictly beyond its proper remit or abilities. That is an unfair burden on our regulator.

My final point relates to the relationship between trustees and employers. That relationship needs to be close, as we all know, especially in regard to the funding plans in a scheme and the investment strategy. In the end, it is important not to require employer agreement to long-term investment plans. Under Section 35(5) of the Pensions Act 1995, the employer’s consent is not required, so, to avoid confusion, paragraph 6 of Schedule 10 to the Bill must make it clear that the trustees at the end of the day may make investments without the employer’s consent if they regard that as necessary. That is not to say that good practice does not always suggest full consultation—I think anyone running a scheme worth looking at is conscious of the need for that consideration and consultation.

A close and positive relationship between employer, trustees and the regulator is absolutely necessary for the success and viability of any pension scheme. To flourish, however, the provisions in place, including those set out in this Bill, must be workable, understandable, flexible and pragmatic.