Pension Schemes Bill [HL] — House of Lords, 2020-06-30
Topic: Labor
Deborah Stedman-Scott (Conservative, Centre-right): I start by responding to some of the points that noble Lords have made, for which I thank them. On the point raised by my noble friend Lady Altmann, who questioned whether it should be for Ministers to decide who is running a scheme under negative procedures, let me clarify that the power in Clause 11(2)(e) does not determine who is running a scheme. It simply means that such people as prescribed are subject to regulatory scrutiny My noble friend Lady Fookes is obviously highly regarded on the issue of delegated powers. The "made affirmative" procedure is for use where there is a need to legislate in an emergency; here, we are talking about acting urgently, so the negative procedure is appropriate. I also thank her for the bouquet I agree with the noble Lord, Lord Hain, about getting regulations right, especially on authorisation. On the points made about the recent market changes and the impact on pension schemes, we will have to keep that under constant review but his support for CDC schemes is much appreciated. He also raised how pension members’ benefits would be impacted by the recent downturn—I have already referred to this—in asset values during the coronavirus pandemic under Royal Mail’s proposed CDC scheme. Like the noble Lord, I welcome the fact that the latest modelling conducted by Royal Mail’s actuaries, based on market performance during the first quarter of 2020, indicates that the downturn in the value of its anticipated asset portfolio would not have resulted in cuts to pension benefits and had only a small impact on next year’s inflation increase My noble friend Lord Naseby is not in favour of the negative procedure. This point was made by many noble Lords across the House and I can say only that we have listened. This brings me to the contribution of my noble friend Lord Holmes. The Bill team has been outstanding—they have been very patient with me—and I liked his reference to two ears and one mouth. We have definitely used our ears on this. On the comments of my noble friend Lady McIntosh of Pickering, we would of course urge everybody to take advice before committing to a pension scheme I am really pleased that my noble friend Lord Blencathra is pleased, and I am grateful for the increased mark of nine out of 10. I am sorry that I have not pleased the noble Lord, Lord Foulkes, this week but I promise to try harder My noble friend Lord Blencathra and other noble Lords raised the point about Clause 47 still being a Henry VIII power and asked why we have not changed it. A Henry VIII power to amend the CDC framework through regulations is necessary if we wish to see CDC provision opened up to master trusts and other non-connected multiple employer schemes sooner rather than later. I can confirm to the House that all regulations made under this power will be subject to the affirmative procedure. We would not want to make any regulations under this clause without proper debate My noble friend Lord Blencathra referred to Clause 124. As the supplementary delegated powers memorandum explains, the Government need to be able to respond to the constant development of industry best practice. It is expected that the Government will periodically amend requirements to ensure that they reflect those developments. These updates will focus not on a fundamental redesign of the policy, but evolution in light of emerging methodologies. We therefore believe that the negative procedure is appropriate The noble Baroness, Lady Bowles, mentioned Clause 11(2)(e) and queried the power for people to be excluded from regulatory scrutiny. No—the power can be used to include people but not to exclude them from scrutiny The noble Baroness, Lady Sherlock, asked whether there is enough urgency about increasing the diversity of boards. I will talk in my concluding remarks about the work that we want to do on diversity. We must inject as much energy as we can The amendment tabled by the noble Lord, Lord Sharkey, to Clause 11 is intended to enable discussion of the Government’s retention of the negative procedure in relation to regulations made under its subsection (2)(e). I have already demonstrated our willingness to listen to and address the concerns expressed about delegated powers in Part 1 of the Bill. We are confident that the list of persons, as set out in Clause 11(2), will capture necessary persons who should be subject to this test. However, should it become evident during live running that a person who has a significant role in the scheme is not captured, we would want to address this omission promptly so that members and their pensions are not put at risk. The power in subsection (2)(e) allows regulations to extend the reach of the "fit and proper persons" requirement to other people acting in a specified capacity in relation to a CDC scheme. It is in the interests of members for the regulator to have the power to assess the fitness and propriety of such persons without unnecessary delay. Time may be critical, and it is right that the fit and proper requirements apply effectively. We therefore consider that the negative procedure is appropriate in this instance My noble friend Lord Balfe raised the issue of the quality of trustees. The Government’s primary focus is on ensuring that trustees in all occupational pension schemes meet the standards of honesty, integrity and knowledge appropriate to their role. However, the Government are aware that the regulator plans to establish a working group aimed at developing additional guidance and supporting material to help the diversity of trustees. We welcome this development and look forward to seeing the outcome of this work Amendment 33, tabled by the noble Baroness, Lady Bennett, and supported by the noble Lord, Lord Foulkes, and my noble friend Lord Balfe, is intended to promote diversity in trustee recruitment. As I mentioned in Committee, the Pensions Regulator will look at trustee board diversity across all schemes and, as I have said, is planning to set up an industry working group to help pension schemes and employers improve the diversity of scheme boards. Unfortunately, the launch of this working group has been interrupted by Covid-19, as the regulator’s resource has had to be diverted quickly to deal with emerging issues from the pandemic I believe it was my noble friend Lord Balfe who talked about a study to see how trustees were performing and how they were doing. I will certainly take that back to the department and I endorse the point raised by the noble Baroness, Lady Bowles, about independent and objective trustees. I hope noble Lords will understand this delay to the working group, given the unprecedented situation we find ourselves in. However, I have been assured by the regulator that it intends to move forward with the working group as soon as is practical. I recognise the importance of diversity; however, it would be premature to pre-empt the outcome of the regulator’s work in this area. We will of course consider any outcomes from the working group as the CDC regulations are developed Finally, I turn to Amendment 45, tabled by the noble Baronesses, Lady Bowles and Lady Janke. This amendment seeks to ensure that regulations in Part 1 of the Bill cannot be used to set up a new regulator. I recall that the noble Baroness, Lady Bowles, was concerned that the powers in Clauses 47 and 41 in particular could be used for this purpose. I hope that the amendment to Clause 47 that I have just discussed has reassured both the noble Baronesses, Lady Bowles and Lady Janke, on this point. Clause 47 cannot be used to establish a new regulator. Clause 51 cannot be used to create a new regulator. The power it gives to confer a discretion on a person cannot be used for the purposes of setting up a regulator. The powers in Clause 51 are intrinsically linked to the specific powers in the Bill under which the regulations are made, and they do not permit an unrestricted power of delegation. This power is commonly found across pensions and other legislation; it is not wider than normal. More widely, I repeat the assurance I gave the noble Baroness in Committee: there is no need to rule out the creation of a regulator through regulations, as there are no powers in this Bill to create a regulator I apologise for the length of my response and hope that the explanations I have provided will help noble Lords not to press their amendments.