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British Airways (Pensions Uprating)

Volume 599: debated on Monday 14 September 2015

Motion made, and Question proposed, That this House do now adjourn.—(Guy Opperman.)

Order. Will those Members leaving the Chamber who, unaccountably, do not wish to hear the hon. Member for Stretford and Urmston (Kate Green), please do so quickly and quietly? That would be appreciated.

Thank you, Mr Speaker. I am grateful for the opportunity to raise this issue, which affects a substantial number of British Airways pensioners. There are two matters. One, regarding discretionary payments, is sub judice. The other arises in relation to British Airways pensions. Obviously, I shall not be discussing the matter that is before the courts. The focus of this debate is the decision by the trustees of BA’s pension schemes to increase pensions by the consumer prices index rather than the retail prices index, as had been the case previously, following the emergency Budget in summer of 2010 which switched the increase in state benefits from RPI to CPI.

The change affects approximately 95,000 pensioners across two schemes: the airways pension scheme and the new airways pension scheme. I am grateful to Association of British Airways Pensioners and its representative, Captain Mike Post, to my constituent, Mr Len Jones, and to Nikki Jones of Unite—in which connection I draw the House’s attention to my entry in the Register of Members’ Financial Interests—for the briefing for this debate. I am sorry not to have had the benefit of any contact from British Airways.

I congratulate the hon. Lady on obtaining this Adjournment debate. She may be interested to know that several of my constituents are affected by these developments, and I hope that she will address the issue I have been contacted about: the inequity of the position in which they find themselves because of BA’s behaviour. Once again, I hope she will reflect that and that we will hear from the Minister in a positive way.

I am grateful to the right hon. Lady for her intervention and I hope to do justice to the concerns of her constituents, my constituents and indeed, as is very evident from the turnout for this debate, those of right hon. and hon. Members from right across the House. I had intended to mention a number of the hon. Members who have approached me about this evening’s debate, but I can see that so many are interested and so I will curtail that part of my speech.

As I have indicated, on 31 March 2014 there were 95,486 pensioners in two separate BA pension schemes—28,144 in APS and 67,342 in NAPS. The matter before us tonight therefore affects a substantial number of people, some on very modest pensions—the average pension in APS is about £14,000 per annum and in NAPS it is about £12,000 per annum—and has what Captain Post has described as a “complex history”, going back to 1948, when APS was established. That scheme contained several unique features, including a unilateral trustee power of amendment and a no-worsening clause. Six trustees were appointed by the employer and six were elected by the members. Amendments required two thirds of trustees to ratify them; employer approval was not required.

In 1973, in return for substantial increases in contributions, members were invited to transfer to APS part 6 to enjoy unlimited inflation protection. In 1984, APS closed to new entrants, pending privatisation of BA, and NAPS was established.

The interest here in the House gives an indication of the interest among our constituents, too. Does the hon. Lady agree that given BA’s financial position with its pension scheme, with liabilities of £29.2 billion and assets of £29.3 billion, a move to de-risking would have made more sense and may have provided a greater surplus for the company and for the pension?

The hon. Gentleman is absolutely right, and I shall be developing that point further in my speech.

As I say, in 1984, pending privatisation, APS was closed and NAPS was established. BA went to considerable trouble at that time to inform existing APS pensioners of their options. I have here a copy of a staff newsletter from January 1984, which my constituent Mr Jones, an APS pensioner, has given to me. The newsletter, which includes a personal statement from Colin Marshall, then chief executive of BA, describes the details of the new scheme compared with the existing APS. It explains that APS pensioners can either choose to join NAPS, and receive a cash payment or extra pensionable years if they choose to do so, or to remain in the existing scheme. It states that the two schemes will be independent of one another, will not subsidise one another and will each be governed by their own scheme rules. It then describes the differences between the two schemes in relation to contribution rates, pension age, pensionable pay and, crucially for this debate, index linking.

I congratulate the hon. Lady on securing this debate and on being appointed to the shadow Cabinet today. Many of my constituents are affected by this issue. Will she join me in calling on BA to play fair with those pensioners, be it in respect of those from 1984 or those from 2015?

I thank the hon. Gentleman and I very much hope that, seeing the strength of feeling around the House tonight, BA most certainly will realise that it must play fair.

I, too, congratulate my hon. Friend on securing this debate and on her new appointment today. Does she agree that as BA was controlled by the Conservative Government in 1984, when the undertaking was given, it is reasonable for BA pensioners, of whom I have a lot in my constituency, to expect some support from the current Conservative Government in order to ensure that undertakings given should be honoured? As she said, many of these people are on low incomes.

It is for Government—I am talking about any Government as this is not a party political matter—to honour commitments to these pensioners, and I will outline their obligations in this regard.

In relation to index linking, let me quote from the newsletter of January 1984. It says that the new scheme NAPS

“will be index linked in line with the cost of living index, up to a maximum of 5% in any one year. But it will not offer unlimited ‘inflation proofing’ like the present scheme”—

which is APS.

“If the rise in the cost of living index is below 5%, the pension will be raised by the actual amount, as it is under the existing scheme.”

Clearly, there is no specific reference there to which cost of living index was meant. But ABAP argues that it must have meant the retail prices index because the consumer prices index was not then in existence. Up to that point, it had indeed been the practice of the trustees to increase pensions in line with the annual review orders, which had adopted the RPI.

In any event, NAPS was set up, with approximately half of existing APS pensioners electing to move to the new scheme and the rest remaining in the APS. This must have disappointed BA, because Marshall openly acknowledged the existing scheme was an expensive one for the employer, though he also stated quite categorically that there would be no pressure on existing pensioners to move to the new scheme.

In 1996, a new attempt was made by BA to persuade APS members to transfer to NAPS. Interestingly, pensioners were told that their pension increase would be “broadly in line with RPI.” Then, in 1999 and 2000, attempts were made to merge the schemes, but that was overwhelmingly opposed by members, and the initial decision to do so was reversed by the trustees.

Meanwhile, a number of other changes to the trust deed governing the APS did take place, the most important being to replace so-called rule 13A with rule 34 in February 1986. This change, which was taken by an inquorate meeting of the trustees, dealt with the ability of trustees under rule 13A to pay augmented pensions, provided that BA gave the trustees the necessary funding to do so within four weeks.

Rule 34, which later became clause 24, did away with the requirement for BA to fund such increases if in effect the actuary agreed the fund was in surplus. Apparently, the reason was to bring APS in line with NAPS. Despite the fact that this decision was taken at a meeting of the trustees that was not quorate, the company used the power obtained at that meeting to order a further £330 million to be paid from the emerging surplus without being required to provide the funding. As a result, BA enjoyed a substantial contribution holiday from 1999 to 2003.

The pattern of poor governance—between 1986 and 1990 at least 11 trust deed and rule amendments were made without a quorum of trustees being present according to ABAP, and the chair of trustees was frequently absent—is the backdrop to the situation in summer 2010 when we come to the emergency Budget. Following the Chancellor’s decision to increase state benefits in line with CPI rather than RPI, the trustees announced that they too would abandon RPI as the index by which pensions were uprated and switch to the CPI. In its results statement on 25 Feb 2011, BA acknowledged that there would be a long-term gap of 0.5% between the two indices, amounting to £770 million. The benefit of this saving would accrue to BA’s Spanish shareholders.

I thank the hon. Lady for securing this debate. I speak on behalf of British Airways APS pensioners in my constituency. What action can we take as individual Members of Parliament to urge British Airways to honour its clearly stated and express promise to pay RPI on these pensions every year? It is clear that CPI was not even invented when the original promise was made.

It is rare for so many Members to stay so late at night for an Adjournment debate on such a specialist subject. I very much hope that our presence here will be one of those steps that we can take collectively to put that pressure on British Airways.

Throughout the life of the pension schemes there had been regular revaluations of the pension fund, which consistently showed the APS to be in surplus, in contrast to the NAPS. In the triennial valuation that took place in 2012, one of the assumptions—it must in law have been agreed by British Airways—was stated to be that to allow for discretionary increases, pension increases were assumed to increase linearly from CPI in 2013 to RPI from 2023 onwards. ABAP argues that this demonstrates that British Airways has effectively recognised all along the force of its claim for RPI increases—it is the discretionary increases that are subject to the separate legal action.

In 2013 approximately 300 APS pensioners complained to the pensions ombudsman about the switch to CPI, while 25 pensioners launched action in the county courts claiming lost pension increases since CPI had been used to uprate their pensions in 2011. BA retaliated by elevating those cases to a test case in the High Court, the costs of which forced the claimants to withdraw their cases.

The result of all this is that British Airways pensioners today feel extremely and understandably aggrieved. They point to inquorate decisions, broken promises and, most recently, the removal of the independent chair of trustees by the company. Moreover, the willingness to consider the interests of shareholders ahead of pensioners creates a deep worry that British Airways’ long-term agenda might be to close its final salary schemes, to the benefit of shareholders. While they recognise, of course, that British Airways is now an independent company and no longer state-owned, they feel strongly, as my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury) has suggested, that the Government have a responsibility to ensure that undertakings given before privatisation of the company and in connection with it are honoured.

If hon. Members will forgive me, I will not give way, because time is tight and I have several questions to put to the Minister.

What discussions have Ministers had with British Airways since the emergency Budget? What is the Minister’s view of British Airways’ high-handed—some might say bullying—behaviour? What steps are the Government taking to ensure satisfactory governance of pension schemes, including the British Airways schemes, in the light of this history of inquorate decisions, the recent firing by the company of the chair of trustees, repeated non-attendance at trustee meetings by a previous chair and the interests of the company apparently being put before those of the pensioners?

Can the Minister explain the inconsistency in approach to uprating pensions in line with RPI or CPI in state and ex-nationalised bodies? The BBC, the National Coal Board, the Lloyds Bank part of Lloyds TSB and the Bank of England all continue to uprate pensions by RPI, but British Airways does not, and neither apparently does the TSB side of the former Lloyds TSB.

Does the Minister recognise that the Government have a moral responsibility to ensure that promises made at the time of the privatisation of former state bodies are honoured? Does he agree that it would be right to infer that the commitment to uprating given to pensioners in 1984 referred to RPI, since that was the index in existence at the time, the index that trustees had in effect been applying to increases previously, and the index used to arrive at the fund valuation in 2012?

Most importantly, what assessment has the Minister made of the impact of the broken promises, the governance failures and the betrayal of British Airways pensioners on public confidence in pensions regulation and pensions policy? In 2007 the noble Baroness Altmann gave a talk to ABAP called, “How safe is your pension?” She talked about the integrity of pension promises and expressed her concern that people had been lied to about the security of their pensions by Government.

The noble Baroness is now the Pensions Minister. She has been writing to APS pensioners recently stating that it is inappropriate for Ministers to comment on the running of a private pension scheme. Surely that is not correct, when it is the scheme of a former state-owned company, and when the Minister herself has pointed in the past to pensions security being Government business. Does the Minister here this evening now agree that it is the Government’s business to ensure that undertakings given by what was at the time a Government-controlled company as part of a Government privatisation programme are properly honoured? Will he assure the House tonight that he will take steps to put pressure on British Airways to ensure that this is done in the case of the APS pensioners?

May I start by congratulating the hon. Member for Stretford and Urmston (Kate Green) on her promotion to the shadow Cabinet, which I am sure will bring her much excitement, as well as much busyness? I also congratulate her on securing this debate. It is clear from this evening’s turnout, on both sides of the political divide, that this is certainly a popular issue, and one that affects many people, and therefore many Members of Parliament, in a wide variety of constituencies.

I trust that the hon. Lady, and colleagues throughout the Chamber, will appreciate that it is not appropriate for a Minister to comment on the running of individual schemes or individual trustee decisions. Moreover, I hope she will appreciate that it is not appropriate for me to comment on matters that are subject to ongoing legal proceedings, as is the case here. She will be aware, as will other Members, that the case brought by British Airways against the trustees is scheduled for a hearing for 25 days in February next year.

As I explained, there are two separate matters. I am not discussing the matter that is before the courts—it would be wholly inappropriate to do so in this House tonight—but raising a separate matter that is not the subject of litigation.

The trust and British Airways—the whole organisation—have been the hon. Lady’s subject in this debate. Both are taking part in a debate concerning the trust that was originally set up in 1948. I think it is inappropriate to comment, because there is a huge overlap. She has been in the House for long enough to know, as have other Members, that in such a situation where there is pending litigation it is inappropriate and wrong for Ministers to comment. However, I can speak in a general way and, I hope, address some of the issues she has raised.

I understand that the Minister is unable to comment directly, but does he accept that the High Court has described BA’s behaviour as entirely unrealistic and unreasonable?

My hon. Friend will be aware that the judiciary are completely independent of the Executive and, indeed, Parliament. It is not appropriate for me to comment on what the judiciary say because they are completely independent and entitled to say what they want in relation to court decisions.

I understand the comments that the Minister has made, but will he none the less accept the frustration felt by many people, including my constituents, at obtaining less than they had anticipated when saving for their retirement?

I fully appreciate the frustration—indeed, anger—of people who were expecting something on their retirement but who will no longer receive it. I hope, however, that colleagues will recognise that the pension scheme was set up in 1948, at a time of nationalised industries when nationalisation was the norm, and we now live in a totally different climate with a totally different economy where the industry is not nationalised any more. We have to abide by the rules of the set-up of that pension scheme. As a trust, it is at arm’s-length from anything that the Government can do. People here who know trust law will appreciate that.

Legislation provides for a minimum level of indexation that applies to certain pensions. Currently, schemes must increase defined-benefit pensions that are in payment and were accrued between April 1997 and March 2006 by inflation capped at 5%. Pensions accrued from April 2006 onwards must be increased by inflation capped at 2.5%. The exact measure of inflation is not defined in legislation. It is for the Secretary of State to make a judgment each year on the measure to be used from those available.

The rules of an occupational pension scheme may make more generous provision than is required in legislation, either regarding pre-1997 accruals or providing for increases above the level of the statutory minimum. However, these are matters for schemes and the trustees; the scheme will have met its obligations under pension law by paying the statutory minimum.

I understand that the APS rules provide for the rate of increase to be the same as those specified in orders issued under section 59 of the Social Security Pensions Act 1975, which provides for public sector pension increases. Every year, public service pension increases are set out in an order issued by Treasury Ministers under section 59, which requires the Treasury to provide the same level of increase as the additional state pension that is set out in the social security benefits uprating order made by the Secretary of State under the Social Security Administration Act 1992.

The legislation, however, does not specify a particular index as the appropriate measure of price increases. The increase in the general level of prices has always been a matter for the Secretary of State to decide every year, and to help him make that decision he will look at the various indices of price increases. However, he only has to choose a suitable index—he does not have to choose the index that gives the highest possible increase.

In the past, the Government used the retail prices index as the measure of inflation. However, as the hon. Member for Stretford and Urmston has said, in 2010 the Government decided that the consumer prices index is a more appropriate measure of changes in the cost of living than the RPI for public service pensions, certain state pensions and benefits, and the statutory minimum increases for occupational pensions. Therefore, if the Secretary of State decides to use CPI as the measure of the general increase in prices, as is currently the case and has been since 2010, any scheme whose rules required increases under section 59 would find itself making increases on the same basis. I must emphasise that any payments in addition to that level will depend on scheme rules and the powers available to the trustees.

Does the Minister agree that, while there is little the Government can do in a private trust matter that is currently before the High Court, there is much that British Airways could do for its 28,000 pensioners on the APS scheme, including my constituents, by facing up to either the letter or the spirit of its responsibilities?

I am sure that British Airways is keeping a watchful eye on the Chamber and has noted the presence of not only those who have had the opportunity to speak, but the many others who support them.

Having explained the switch to CPI, I would like to return to the role of trustees in running pension schemes, including setting pension increases. I have explained that any increases above the statutory minimum are a matter for scheme rules and the trustees. In some cases, the increases will be at the discretion of the trustees; in others, the rate will be written into the rules. The House will appreciate, however, that in view of the issues in the ongoing High Court proceedings, I cannot comment on either the ambit or use of powers by the APS trustees.

Trustees of pension schemes are the same as those of any other trust, and much of what they do is governed by trust law. They have to act in line with the trust deed and scheme rules and they have to act impartially, prudently, responsibly and honestly, and in the best interests of beneficiaries. Those obligations apply regardless of whether trustees are nominated by the employer or by members. That means that trustees may have a potential conflict of interest, and the Pensions Regulator issues guidance on how trustees should manage them should they arise.

Trustees are also required, under pensions legislation, to undertake certain actions to ensure that the scheme is funded to meet its liabilities and that it can pay the right amount of benefits to the right people at the right time. Having set those parameters, the Government do not interfere in the running of individual schemes. Regulation of occupational schemes is undertaken by the Pensions Regulator. If it appears that trustees are not carrying out their duties correctly, the regulator may intervene. Alternatively, members may have recourse to the pensions ombudsman or the courts, which is the route being taken at present.

However, another party is involved: the sponsoring employer. The employer is ultimately responsible for putting enough money into the scheme to pay the benefits due under its rules, which is why it is essential for trustees and sponsoring employers to work together when agreeing the level of employer contributions—even more so if the scheme is in deficit and the employer has to pay in extra contributions to make good the shortfall. Inevitably, employers and trustees sometimes cannot resolve disputes, so it falls to the courts to determine the outcome. Sadly, that is the case here.

Will the Minister comment on the appropriate balance between the responsibility to the interests of the company and the trustees’ fiduciary responsibility to scheme members?

It is a complex legal matter. There certainly are responsibilities, but they extend to trying to build a good working relationship with all concerned, as well as relationships that are in law. Having such a working relationship—it is not defined in law, but is common sense—is critical if we are to reach a proper solution. Sadly, that has not worked out in this instance, so we have this 25-day hearing, which is a significant amount of time. It is a very complex case about which much will clearly have to be said in due course. However, much has already been said.

I have but a few seconds in which to speak, so I simply say to the hon. Lady and colleagues that it is good to see so many Members in the Chamber for an Adjournment debate. Given that we were threatened with up to four votes, it is fortunate that we will all be able to get away this side of midnight. I commend the hon. Lady again for raising this matter. We await the result of the court case in due course.

Question put and agreed to.

House adjourned.