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Pension Schemes Bill

Volume 758: debated on Wednesday 7 January 2015

Committee (1st Day) (Continued)

Amendment 22

Moved by

22: After Clause 38, insert the following new Clause—

“Disclosure of information about schemes: duties on trustees and managers

(1) The Pension Schemes Act 1993 is amended as follows.

(2) In section 113 (disclosure of information about schemes to members etc), after subsection (10) insert—

“(11) The trustees or managers of an occupational pension scheme and the managers of a personal pension scheme shall be under a general requirement to account to their beneficiaries for all actions taken in the performance of their investment functions, including (without limitation) actions relating to any of the matters mentioned in subsection (15), and shall also be under a general requirement to act transparently in that regard.

(12) The trustees or managers of an occupational pension scheme and the managers of a personal pension scheme shall comply with any reasonable request for information relating to any of the matters mentioned in subsection (15) where such request is made by or on behalf of one or more of the beneficiaries, or any other persons of a prescribed description which the Secretary of State may specify in regulations under this section, or by a relevant independent governance committee.

(13) The trustees or managers of an occupational pension scheme and the managers of a personal pension scheme shall comply with any reasonable request by or on behalf of any of the persons specified in subsection (12) for information relating to the reasons for the manner in which they have exercised or are proposing to exercise a discretion in relation to any of the matters mentioned in subsection (15).

(14) The trustees or managers of an occupational pension scheme and the managers of a personal pension scheme shall take all reasonable steps to ensure that all persons to whom they have delegated any investment functions mentioned in subsection (15) comply with any reasonable requests by or on behalf of any of the persons specified in subsection (12) for information relating to the performance of such delegated functions.

(15) The matters mentioned in this subsection that are referred to in subsections (11) to (14) are—

(a) the selection, retention and realisation of investments,(b) the stewardship of investments, including (without limitation)—(i) the exercise of rights, including voting rights, and(ii) the engagement with the managers of investee companies and other investee entities in relation to (among other matters) corporate governance (including management remuneration) and corporate actions,(c) the selection, appointment and monitoring of investment managers and other agents to whom the trustees or managers delegate any of the matters mentioned in paragraphs (a) and (b) above, and(d) the selection and monitoring of investment funds which are operated by insurance companies or other institutions and in which the trustees or managers have invested or are considering investing.(16) For the purposes of subsections (11) to (15), a request for information shall be presumed to be reasonable unless—

(a) the requested information has already been supplied to the person making the request within twelve months before the date of the request,(b) the requested information is otherwise readily and freely available in easily comprehensible form to the person making the request and that person has been advised accordingly,(c) the trustees or managers (or, where subsection (14) applies, the relevant delegate) reasonably consider that the costs of providing the information would be disproportionate, having regard to (among other matters)—and have stated that to be their view, have explained their reasons, and have given their best estimate of such costs to the person making the request.(i) in the case of an occupational pension scheme, the best interests of the beneficiaries as a whole,(ii) in the case of a personal pension scheme, the best interests of the beneficiaries of all personal pension schemes of the same provider as a whole, and(iii) whether the requested information is relevant to those best interests,and have stated that to be their view, have explained their reasons, and have given their best estimate of such costs to the person making the request.(17) Subsection (16)(c) above shall not apply unless where a relevant independent governance committee, having considered such view and reasons—

(a) notifies the trustees or managers that it does not agree that their estimated costs would be disproportionate, or(b) there are commercial considerations, including (without limitation) confidentiality constraints, that, for so long as such considerations subsist, would make it either unlawful or not in the best interests of the relevant beneficiaries for the requested information to be provided,and the trustees or managers (or, where subsection (14) applies, the relevant delegate) have stated that to be their view and, so far as practicable, have indicated the nature of the relevant considerations to the person making the request.(18) Subsection (17) shall not apply to the extent (if any) that it is reasonably practicable for any part of the requested information to be provided, whether in full or in a redacted or summary form, without prejudice to such commercial consideration.

(19) The provision of information under subsections (11) to (15) shall be made without any—

(a) cost or charge to the beneficiary or any other prescribed person making the request, or(b) restrictions on the use or dissemination of the information by the recipient. (20) The Secretary of State may make regulations with a view to ensuring that the information disclosed under subsections (11) to (15) is provided in a timely and comprehensible manner.

(21) For the purposes of subsections (11) to (20)—

“beneficiaries” means the persons for whose benefit investments are being, will be or may be applied for the purposes of a pension scheme, whatever the particular form of ownership under which such investments are held for the time being,

“commercial considerations” does not include any contractual provision purporting to exclude or restrict the right of the trustees or managers of a pension scheme to disclose to their beneficiaries the terms of appointment of any person to whom they have delegated any investment functions,

“investments” means investments in relation to which any investment functions are performed,

“relevant independent governance committee” means, in relation to a personal pension scheme that is included in a workplace pensions arrangement, a committee established by the provider of the personal pension scheme to oversee the affairs of the arrangement in the interests of the beneficiaries.””

My Lords, I am pleased to move Amendment 22, standing in my name and those of the noble Lords, Lord Stoneham and Lord Paddick, and the noble Baroness, Lady Bakewell. The amendment follows the theme of this Government’s action in pensions by empowering savers and giving them choice.

I make no apology for tabling a comprehensive and detailed amendment. It is intended to demonstrate the breadth of action required in legislation to achieve a high level of transparency in the operation of pension schemes. I am indebted to ShareAction, a charity dedicated to this aim, for its help and its research.

The amendment provides a general requirement for pension schemes to account to savers for their investment and stewardship decisions; and a right for savers to access meaningful information about how their money is being invested and managed. It is an attempt to set a standard—a floor—guaranteeing savers rights to certain information about how their money is used. In doing so, it aims to rebuild the trust currently lacking between savers and those managing their money.

The pensions sector is not a perfect market: most savers do not actively choose their pension provider; it is chosen by their employer. Historically, there has been very little switching between products, and by the time poor performance is apparent, usually at the end of the saver’s working life, it is too late for the saver to act in a way to send a signal to the market. Savers feel disconnected from their money and this exacerbates these market imperfections. A disconnected saver is less likely to scrutinise the way in which his or her money is used. The buyer side of the market will continue to be weak, providing no real scrutiny of the industry. We have seen the impact that this has had on the fees and charges that people’s pensions have been subjected to.

The report of the now noble Lord, Lord Myners, in 2001 observed that good governance and accountability are mutually reinforcing. I agree. The pensions sector may never be dominated by a majority of active and engaged savers but, the more savers are active and informed, the better the market will work.

Under the current system, savers have relatively few rights to information about their money. This is partly a result of outdated legal concepts. Much of pension law is based on laws that governed a world of private family trusts. More rules were designed for a world dominated by final salary pension schemes, a world that is fast diminishing.

In today’s system, millions of people are automatically enrolled into defined contribution schemes, and now, potentially, into defined ambition schemes. Under these schemes, the saver takes the investment risk. It is therefore appropriate that such savers have rights to know how their money is being used—which answers the second of the two key questions which savers ask. The first is: “How much money will I get back?”. The second is: “Where does my money go?”.

Currently UK pension schemes are subject to a number of disclosure requirements. However, these do not translate in practice into disclosure of information useful to the average saver. In summary, the current rules, depending on the nature of the scheme, require disclosure of a scheme’s investment policy and annual reports on investments, including high-level information on investment performance. In practice, savers are often sent information that is technical, inaccessible and does not show how high-level policies are enacted.

The UK stewardship code is one mechanism that was designed for increasing transparency in the financial sector. The code covers issues such as how investors are engaging with companies and how they vote in investee companies. While the Financial Conduct Authority requires asset managers to disclose their commitment to the stewardship code, no equivalent requirement is placed on asset owners such as pension funds and insurance companies. Very few pension funds sign up to the code. This means that there is no real impetus for pension schemes to pass on to savers any information that may be disclosed to them by their asset managers. There is a missing link in the chain of accountability back to the ultimate saver.

The rights created by this amendment would apply to all pension schemes. It encompasses the trustees or managers of occupational pension schemes and the managers of personal pension schemes. In summary, the amendment would place the trustees or managers under a general requirement to account to their beneficiaries for all actions taken in the performance of their investment functions and to act transparently in that regard. It would require trustees or managers to comply with any reasonable request for information —by “reasonable”, I mean not just that it should not involve disproportionate cost but where information is not more readily available—made by or on behalf of a beneficiary, including by an independent governance committee, about decisions being made in key four areas: first, the selection, retention and realisation of investments; secondly, the stewardship of investments; thirdly, the selection, appointment and monitoring of investment managers and other agents to whom powers are delegated; and, fourthly, the selection and monitoring of investment funds in which the trustees or managers have invested or are considering investing.

Savers should have information to make informed decisions, and information to enable them to fully understand their own position. For example, we all know that when people have concerns about certain corporate practices, they may choose to alter the way in which they interact with those corporations. For example, after the Rana Plaza factory disaster in Bangladesh, many people chose to boycott companies that used the factory, and similar ones, to produce goods. Having taken this stance, many people would have been horrified to learn that the money they saved in their pension each month was actually invested in those companies. Another example is the fact that although many people are concerned about the health risks of smoking, those same people might well be surprised to find that a portion of their savings each month is being invested in tobacco companies.

This amendment would plug that information gap. It would allow a saver to request information about whether their pension was invested in a particular company or industry sector. What can the saver do with this information? Under the terms of the amendment, they can ask their pension scheme what, if anything, it is doing to influence a company on a particular issue. If a saver is worried about excessive executive pay in companies, he or she can ask the pension fund how it voted in respect of pay packages in companies. If the scheme has done nothing in respect of the issue, perhaps by abstaining from voting or not engaging with a company about it, a dialogue has been started. The pension scheme trustees or managers may not agree that action is needed, but on the other hand they may agree. If other savers have approached them on the same issue, this may prompt them to review the stance, or lack of stance, they have so far taken, and to ask questions of the company or even to consider their exposure to the company—of course, being mindful of their fiduciary duties to their members. Thus, through empowering the saver, we have developed a mechanism for companies to be held to account that works with the market.

This increased transparency would build on the work the Government have done to improve oversight of companies. The UK stewardship code has been adopted by the majority of asset managers, and it requires reporting on stewardship activities. It recognises that transparency is key to corporate accountability. But as I said earlier, the code has not been widely adopted by pension funds, and very few pension funds relay the information they receive from their managers to the ultimate saver. The amendment would allow a saver to receive this information on request. The release of such information to the saver would not mean that the saver would now move his or her money, as very few pension savers are realistically able to switch products. The effect is much subtler, but just as powerful. In a system where there is no real exit for the saver, the information has given him a voice.

Parallels can be drawn with the move towards increased transparency on fees and charges in pension schemes. No one is suggesting that savers should not be given greater information on fees and charges applied to their pension savings because they cannot act on it. Instead it is recognised that there is a more subtle, wider benefit in this information being made public: pension providers may be held to account and savers may be better engaged with their savings.

Transparency is a critical part of reconnecting savers with their savings. This amendment seeks to place in statute the actions needed to give effect to this very important principle. I beg to move.

My Lords, I am pleased to support Amendment 22, moved by the noble Lord, Lord German, and I commend him for tabling it. The thrust of the amendment is designed to achieve two things: to provide a lever for achieving greater engagement of savers with the investment of their savings, and to help correct failings in the pensions market where the demand side is so weak. It would do this by giving pension savers the right to ask for details on how their money is invested and managed; by compelling occupational and personal pension schemes and investment intermediaries to provide information; and by leveraging transparency to increase scrutiny over those who make the investment decisions.

We know that pensions are not a normal market. Auto-enrolment is designed and built upon the principle of inertia, for a population of savers who do not engage. As the noble Lord said, savers do not choose a product; the employer does. The saver is restricted to a binary choice—to stay in, or to opt out and lose the employer contribution. Savers cannot easily move their pension savings.

These features strengthen the importance of holding agents to account, because that very inertia allows conflicts of interest to flourish. It is difficult for savers on their own to secure improvements in transparency and accountability. The Government need to provide a legislative push. Saver disengagement is a concern for two reasons. First, it helps to feed serious market failings. Secondly, it undermines effective shareholder engagement with the governance of companies in which their money is invested.

When auto-enrolment is bringing 10 million-plus new savers into the pensions system, the case for greater engagement and scrutiny becomes even more compelling. People avoid complexity but, as evidence from both the NAPF and ShareAction reveals, that does not mean they are not interested in what is happening to their money. They want their pension providers to invest in companies that behave well. Why should savers not know how their funds are engaging with companies on important issues, and how shareholder votes are cast at AGMs?

Increasingly, shareholder responsibility is exercised through pension funds and investment intermediaries. We know from what happened in 2007 and 2008, and from the findings of the Kay review, that this model of shareholder engagement can be inefficient for the economy as a whole.

Pension savers do not know how, if at all, their schemes are interacting with the companies in which they invest. As John Kay observed in his review of UK equity markets, such markets are no longer a significant source of new capital for businesses. Rather, their function is to allow savers to share in the success of business. The corporate governance function of shareholders is therefore not a sideshow but a core part of the purpose of modern equity markets. Increasing transparency, scrutiny and saver engagement is good for the saver, the pensions market and the efficiency of the economy.

As a consequence of the Kay review, when seeking to clarify the fiduciary duties of trustees, the Law Commission confirmed that trustees can take into account non-financial factors such as improving members’ quality of life. However, they can do so only if they meet two tests, one of which is that trustees should have good reason to think that scheme members would share the concern. Arguably, that assumes that there is some form of dialogue or engagement between funds and savers. That does not exist now and, given savers’ limited rights to information and the complexity of what they receive from schemes, the amendment would help to build up such engagement. Savers could ask how their money was invested and how rights attached to those investments were being exercised. Savers questioning funds will help to hold investment intermediaries to account and give funds a better idea of the view of their members.

There will be those who argue that the amendment is just more red tape and will be too expensive, but I make several observations. As the noble Lord, Lord German, confirmed, UK pension schemes are already subject to a number of disclosure requirements, but they often result in very technical communications conveying little to the saver. Some pension schemes are seeking to raise their game in accounting for their decisions and in disclosing voting information, but too many are not. Trustees and managers should have a good knowledge of how investments are selected, stewarded and managed, including the exercise of voting rights. If they already have that knowledge—which they should to do their job well—it should not be too onerous to achieve a better and more informative set of communications to members. If schemes decide that they really want to communicate meaningfully with members and start to go about it in a systematic and committed way, the results can be significant without being onerous.

The amendment, so clearly explained by the noble Lord, Lord German, puts a “reasonable” wrap around requests for information. Certain commercial considerations can be weighed in the balance when considering what is or is not reasonable—although I must say that that provision would be better placed in the general duty on trustees and managers rather than restricted to independent governance committees, but that is by the by; it is a detail. The amendment includes a proportionality provision, particularly in relation to costs of providing information in response to requests, and gives delegated powers to the Secretary of State to make regulations. Those regulations could make simple rules about the timeframe and format for disclosures, so the Secretary of State would have a great deal of discretion under the construction of the amendment as to how those regulations would be built.

Not every pension saver would exercise their new rights, but all would benefit from the increased scrutiny by those who chose to do so. It is the release of relevant information that can raise the standard of scrutiny and accountability, not necessarily the volume of individual requests for that information. The very knowledge that occupational and personal pension schemes and investment intermediaries would be compelled to provide information in response to reasonable and proportionate requests should of itself raise the standard of practice among pension schemes as to what is readily provided in an easily comprehensible form as a matter of course to scheme members. That is good for savers, and it is good for the economy.

The amendment will not on its own secure the radical improvement in governance in the pensions industry which pension savers deserve, but it will certainly make a significant contribution.

My Lords, I, too, support Amendment 22. Savers’ distrust of the pensions industry threatens the success of automatic enrolment. It would be a great disappointment if people chose to save less or to opt out of pensions saving entirely because they have no confidence in those who are managing their money. One key mechanism for improving engagement and building public trust in pensions is increasing transparency, as has already been said. That means letting people know what is happening to their money and helping them to see how their retirement savings connect with the wider economy—not least through being invested in companies that they know well in their daily lives as consumers, employees and local residents.

As well as supporting automatic enrolment, the rights proposed under this amendment would further the Government’s important work since the financial crash of 2008. The Kay review, commissioned by the Secretary of State for Business, Innovation and Skills, sets out a clear challenge to industry and to government to build a culture of trust and confidence within the investment sphere in order to counter the short-termist behaviour that contributed to the crash. Increasing the information that savers can obtain about their money will help to build this culture of trust. An important outcome of the Kay review was the Law Commission being asked to clarify the law around fiduciary duties in the investment sphere. In so doing, the Law Commission clarified that trustees can take into account non-financial factors if they have a good reason to think that the scheme members share a particular view and their decision does not,

“risk … significant financial detriment to the fund”.

Arguably, this assumes that trustees will have some sense of the views of scheme members and will engage in some sort of dialogue between savers and trustees. This cannot happen easily if savers continue to be cut off from important information about their money.

Finally, enhanced accountability to shareholders has been a key plank of this Government’s work to promote more responsible corporate behaviour. We have seen this in the introduction of shareholder votes on executive pay. However, many of the largest shareholders in UK companies are pension funds and insurance companies holding money on behalf of ordinary savers. While shareholder votes may have increased accountability between companies and these institutional shareholders, there is no equivalent mechanism in place between these institutional shareholders and the savers. The amendment is a step towards bridging the gap between these institutions and the people whose money they hold. The rights created would increase the potential for scrutiny of their decisions. This is a logical continuation of the move towards greater corporate accountability.

As my noble friend Lord German has said, the amendment covers four specific areas where transparency can be improved. First, there is the selection, retention and realisation of investments. In practice, a saver could ask his pension scheme what investments it holds in order to understand where his money is. That is key if the saver is to understand the risks to which his investment is exposed.

Secondly, there is the stewardship of investments. Stewardship by shareholders plays an important role in ensuring the long-term success of a company. It involves responsible management of an investment in a company and taking an interest in how it performs in the long term, both financially and in areas beyond the financial. It can be contrasted with the type of short-termist trading of shares which led to the financial crisis. It is very important for pension savings that there is this type of long-term interest in companies, given the long time horizon over which pensions are saved.

For institutional investors, such as pension funds, stewardship will cover practices such as exercising their rights to vote in companies and engaging with companies over corporate governance issues such as high pay and board diversity, and other corporate actions such as the use of sweatshops in their supply chains or the risks associated with expanding into emerging markets. A saver has an interest in knowing how, if at all, his pension scheme is influencing company practices. These practices have an impact on the value of his or her savings and on the way in which major companies influence the world in which he or she lives, and into which they hope to retire.

Thirdly, there is the selection, appointment and monitoring of investment managers and other agents to whom the powers are delegated. This amendment recognises that trustees and managers often delegate their investment and stewardship power to other agents. This delegation does not absolve trustees or managers of responsibility for their agents’ activities. The ways in which agents are selected and the terms under which they are appointed and monitored are all-important. Where trustees or managers take stewardship and engagement with companies seriously, they will ensure that their agents take these issues seriously too. This will be reflected in the way that they choose and monitor managers and the mandates they give those agents.

Fourthly, there is the selection and monitoring of investment funds which are operated by insurance companies or other institutions, and in which the trustees and managers have invested or are considering investing. The amendment also recognises that for insured schemes, the main investment function of the trustees or managers is the selection and monitoring of investment funds. For savers invested in these schemes, it will be important to know how trustees and managers understand the investments that they are making and whether they seek to exercise any direction over these funds.

Because of the lateness of the hour and the excellent way in which the amendment was introduced by the noble Lord, Lord German, and supported by my noble friend Lady Drake and the noble Baroness, Lady Bakewell, and as all the arguments have been clearly laid out, it would not be of any great benefit to the Committee if I tried to elaborate on this proposal. Suffice it to say that we would support any proposal such as this which improves transparency for the public.

My Lords, I thank noble Lords who participated in the debate on the amendment and my noble friend Lord German for moving the amendment so ably. The Government are committed to improving transparency in pension schemes and have a robust and thorough work programme during 2015 and 2016 to do so.

My noble friend Lord German has raised a very important issue that this House has long recognised: the need for transparency in pension schemes. I assure noble Lords that this is an issue that the Government take very seriously. Indeed, in their publication Better Workplace Pensions: Putting Savers’ Interests First on 17 October 2014, the Government committed to improving the governance of workplace pensions and transparency surrounding the costs and charges which members are faced with, including better information about transaction costs related to buying and selling investments. I know that this amendment goes much beyond that but it indicates the direction of travel.

Noble Lords will also be aware that this Government have recently consulted on draft legislation which, subject to parliamentary approval, will introduce from April this year new requirements on trustees to improve the governance of trust-based schemes. Trustees will be required to demonstrate that they have complied with new standards of governance by completing a statement, signed off by the chair of trustees, annually. Similar rules are to be introduced by the Financial Conduct Authority to require the newly formed independent governance committees to demonstrate that they have complied with such rules for the contract-based side of the workplace pensions market on a similar timescale. The Government intend to build on this first phase of transparency work. We are committed to consulting further, later this year, on how we propose to introduce transparency on additional costs and charges. The Financial Conduct Authority will also be consulting on similar new requirements in relation to workplace pensions.

Regulations and rules made as a result of the Pensions Act 2014 will significantly improve the transparency of costs and charges in pension schemes and lead to members receiving better value for money. However, I recognise that the proposed amendment would go much further than this. It seeks to place requirements on trustees and managers of occupational and all other personal schemes to provide members with detailed additional information relating to their schemes’ investment functions, over and above what is already required, and additional to the improved transparency of costs and charges information that we intend to introduce from April. The amendment, were it to be accepted, would require trustees and managers to provide investment-related information to members on request where that is reasonable—and there is a rebuttable presumption that it is—which would be additional to existing requirements and would do so before we have consulted with the industry, savers and other interested stakeholders, as we announced we would in our Better Workplace Pensions consultation last October.

We believe that there is merit in examining and considering further the requirements contained in this amendment. However, we consider that greater transparency in relation to costs and charges, as well as about how schemes manage their investments, go hand in hand. As such, they would be better considered together as part of the same well established transparency work programme, which is already under way and which we are committed to consult on later this year. To introduce additional but closely related disclosure requirements regarding investments into primary legislation in advance of the anticipated coming into force of the first phase of costs and charges disclosure in April, and to pre-empt the planned consultation on a further phase of transparency, risks introducing transparency in a piecemeal and unco-ordinated way, without the relevant guidance and optimal regulatory frameworks being in place to cope with such requirements.

Existing primary legislation already provides the powers for making regulations along the lines suggested by the amendment. Those powers should not be duplicated in further primary legislation. Further, the Government are sympathetic to the need for greater transparency in this area, but this can be better achieved through secondary legislation under existing powers. Introducing these requirements through the amendment would remove the opportunity to consult all relevant stakeholders. Secondary legislation would, of course, require consultation. There is overlap and duplication between the suggested amendment and existing provision already contained in secondary legislation. To mitigate the risk of overlap and avoid unnecessary duplication of provision, we would wish fully to examine the suggested requirements in the proposed amendment against the full range of existing provision.

As I have already mentioned, this could be more fully and carefully assessed by way of a consultation, involving both industry and stakeholders, which my right honourable friend the Minister for Pensions has already committed to hold later in 2015 in relation to trust-based pensions. This would allow the Government the opportunity to make the best assessment of what additional disclosure is needed with reference to a full range of views and evidence and to do this in conjunction with work for a further phase of enhanced charges and costs transparency. Any new requirements could then be introduced by way of amending or adding to existing provisions in secondary legislation.

As I said, the Government have already committed to consulting on potential investment disclosure requirements for trust-based schemes. My right honourable friend the Minister for Pensions, when asked by an interested stakeholder about introducing further requirements, committed the Government to this approach. I restate that commitment, which the Government consider a vital part of our pensions reform. I therefore ask my noble friend Lord German to withdraw the amendment.

I thank my noble friend the Minister for that detailed response. What I was particularly hoping to hear, as noble Lords may imagine, was where we are going next and what developments we can see being taken forward. If I may try to interpret what my noble friend the Minister has said, it is that we are moving forward on costs and charges and that is the direction of travel; that this is additional, although there may be some overlap with what is being proposed; and that at some stage in 2015 there will be a further consultation which will encompass many of these issues, including the issues raised by this amendment. If my interpretation of what was said is correct, that is fine; it seems to me to be an appropriate next step.

The other area, of course, is about powers. My noble friend suggested that existing primary legislation already has these powers. I should be grateful if he could identify—he may want to do it by a note rather than by trying to give a detailed answer now—where those primary powers lie, under which Acts, so that we can be clear that they cover the range of activities we have been talking about today.

I feel heartened that the Government realise that the costs and charges are a starting point in a much longer journey. I hope that today in your Lordships’ House represents one further step in taking this whole area of transparency further but with a conclusion in mind so that it is not too far away. On the basis that I look forward to the consultation later in the year and to understanding how the powers are derived, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Clauses 39 and 40 agreed.

Schedule 1 agreed.

Clauses 41 and 42 agreed.

Clause 43: Power to create other exemptions from indexation

Amendment 22A

Moved by

22A: Clause 43, page 18, line 11, at end insert “, unless that pension (or that part of a pension) is a cash balance benefit within the meaning of section 51ZB of this Act.”

My Lords, it is always a pleasure to speak about pensions. As we have heard today, the Bill provides an opportunity to discuss some really chunky issues in the arena of pensions in terms of guidance, trustee powers, investments and so on. It also gives us an opportunity to look at details and minutiae and perhaps, not to put it too bluntly, to clear some horsemeat out of the statutory food chain. I hope that that is what my amendments might achieve today.

I shall focus on Clause 43 and the whole question of indexation and its inconsistent application to specific types of pension schemes. As you would imagine—it is to do with pensions, after all—it is complicated and detailed and makes your head hurt. I will not go into the minutiae today; if I may, I will write to the Minister with the detailed background to my amendment. Effectively, I would like to achieve consistency across the application of indexation to particular types of pension scheme. To give some history to this, the 1995 Act required certain occupational pension schemes to have indexation applied. Over the years the type of indexation has changed, but for the purpose of this debate we should just consider it to be limited price indexation, or LPI. The 2004 Act removed that obligation for money purchase schemes. The 2011 Act followed on by removing that obligation for cash balance pots. So far, so good.

Unfortunately, there is what I would describe as quite a curious kicker in the 2011 Act: if you have a cash balance pot in a scheme that is contracted out, LPI increases will have to be applied to that, and a member will have to take LPI increases whether or not they want them. If I were a member in such a situation and I were contracted out, I would be forced to take limited price indexation increases, whether or not I wanted them. If I were contracted out for a period and then contracted back in, I would still be forced to take LPI increases, whether or not I wanted them.

Perhaps even more curiously, if I were a member of the scheme, cash balance pot in hand, and I had never been contracted out, but another member, most likely unknown to me and potentially even at a different time from when I was a member of the scheme, was contracted out, I would still be forced to take LPI increases. Even more bizarrely, perhaps, if that member then left the scheme, transferred out or died, I would then get the opportunity to choose whether or not I wanted LPI increases. It seems curious that one’s decisions over one’s pension pot can be so influenced by an unknown other who just happens to have been a member of the scheme and contracted out at a particular time, and difficult to believe that this could ever have been the policy intention. It probably underscores yet again the point that pretty much anything to do with pensions is complicated.

The complication is further added to because it is not possible to remove this horsemeat from the statutory process with regulations. It requires primary legislation. It is why, when Clause 43 was first proposed, there was—I would not go so far as to say excitement—a lot of interest in whether this clause would in fact close this loophole. It gets close but unfortunately again the problem comes whereby, for future cash balance pots, LPI will not have to be applied. Job done? Sadly not. It still leaves a toxic tail that any benefits or rights accrued between 1997 and whatever the commencement date of this Bill is still require LPI increases to be applied, whether the person wants them or not.

On one level I am not suggesting that it is a bad thing of itself for people to have to take inflation-linked increasing annuities. Perhaps it is overly paternalistic to force this; certainly it is inconsistent when you look at the treatment of cash balance pots and money purchase benefits, when in many ways it is really difficult to get a cigarette paper between those benefits, but that is the case as it stands and is set out in Clause 43.

So to my amendments. Amendment 22A would posit a regulatory-making power within the Act which would enable this to be put right. It would also give the space for people to consider whether there was potentially any sirloin within the horsemeat. I do not think there is. Others may, particularly if they focus on rights that have been achieved while that individual member was actually contracted out. I do not think that gets across the line. I think Amendment 22B is far more to the purpose, whereby a new Clause 43 would address this problem, not least through proposed new subsection (9), which would take us absolutely to these sunny uplands which everybody would desire where there is consistency across the treatment of benefits, whichever pot you may have—cash balance or money purchase.

I considered tabling an Amendment 22C—it could best be described as the whole cash balance hog—whereby you would scrub out the end of new Section 51(5B)(c) and replace that with some wording which would in effect state that it was down to the member to choose, irrespective of their contracting out. It would be for the member to decide whether they wanted LPI increases on their pension pot at that point. This seems clear; this seems consistent. Perhaps, and this is the reason why I decided not to table the amendment, it may be too big a leap at this stage but I certainly urge my noble friend the Minister to strongly consider the amendments, not least Amendment 22B. We have had horsemeat; we have had a sliver—perhaps—of sirloin; we have had the whole cash balance hog, at which point I beg to move.

My Lords, first, I thank my noble friend Lord Holmes for sharing his concerns with us. He is very much the Desert Orchid of the Government Back Benches. He steered us to removing some horsemeat from the food chain in a typically earthy metaphor, although he got mixed up later with “sunny uplands”. However, I will do what I can.

I confirm that the Government are aware of this issue, and we have some sympathy with the points that my noble friend made and the anomalies that he has highlighted. The requirement to index cash balance benefits was removed by the Pensions Act 2011, as he rightly stated, in response to representations from the pensions industry. It was pointed out that the requirement to index money purchase benefits was removed in 2005, and cash balance benefits are very similar in that entitlement is generally based on calculation of a lump sum rather than an income stream. Therefore it was a relatively easy decision to follow suit with cash balance benefits when the opportunity arose. However, the decision was made at that time that we would not disturb contracted-out schemes—they are subject to their own requirements. That was for very good and very technical reasons.

We now accept that in theory that means that there could be members with rights to cash balance benefits that still have to be indexed, and that might be because another totally unconnected member has some contracted-out pension rights somewhere in the same scheme. That does seem odd, but to be honest we have not received any specific representations and we do not know of any particular case of concern. If the noble Lord can bring forward any specific examples of schemes or individuals who have suffered detriment as a result of this issue, it would clearly support the case for change that he has eloquently set out.

We are aware that the Association of Pension Lawyers is also championing this issue but, as I say, until we know the size of the problem, or indeed if there is a problem in the sense of whether there are people suffering detriment, it is difficult to know how to deal with it and what form that action should take, whether it is through this legislation or elsewhere. We need to take account of the changes coming up in April because they will give members more say in how they spend their pension money, so some of the people caught in the situation at the moment could, arguably, decide to take a lump sum then reinvest that in an annuity without the indexation requirement, although admittedly, there will be problems with taxation at the highest level there, according to that particular taxpayer. As I said, if my noble friend Lord Holmes is able to come up with some specific examples of concern, I hope that we will be able to have a continuing dialogue with him and other noble Lords on this subject. However, in the mean time I respectfully ask him to withdraw his amendment.

I am grateful to my noble friend for that response. I will be happy to provide some examples from my time in practice as a pensions lawyer—a number of examples immediately spring to mind. However, so as not to detain us this evening I will be happy to write to my noble friend with details of those.

This is not the greatest issue on the planet and will not make a huge difference to pensions as we know them, but there are a significant number of situations where it bites and impacts. I cannot envisage a downside to making this change, which is not that tricky to bring about. It needs to be done through primary legislation and this is an ideal, opportune moment to do it.

I accept the point on the changes this April, in that if members take pre-crystallised benefits there is a potential route around that. However, even taking that on board, there is still a significant enough issue that it is very much worth looking at this clause and what we might be able to do. I will be very happy to provide that information and to carry on the dialogue with my noble friend. At this stage, I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

Amendment 22B not moved.

Clause 43 agreed.

Clause 44: Removal of requirement to maintain register of independent trustees

Debate on whether Clause 44 should stand part of the Bill.

My Lords, we have tabled a clause stand part debate to scrutinise the rationale behind Clause 44 and the likely cost savings estimated by the department. First, can the Minister provide a few examples—or even one example—of how the process for selecting trustees under Section 7 of the 1995 Act operates? It is my understanding that following the removal of the requirement to operate a register, the regulator will appoint trustees for a scheme that has suffered an insolvency through a flexible procurement panel. What is the typical cost of recruiting in this way rather than through a register of trustees and how does this compare to the cost of maintaining that register?

In Committee in the other place the Minister discussed the Government’s Red Tape Challenge, specifically the desire to remove £2 million-worth of regulation on businesses for every £1 million introduced. He also said that the savings that will be made by the Pensions Regulator will be passed on to pension schemes and then on to savers. We are therefore understandably keen to get an estimate of the windfall that awaits pension savers once this clause is passed. What is the saving for pension schemes and can the Minister say whether he can guarantee that this is passed to contributors?

The clause stand part debate is intended to probe these details. I hope the Minister will be able to help in this way.

My Lords, I thank the noble Lord for his contribution to the debate. Clause 44 fulfils a government commitment which he outlined under the Red Tape Challenge to remove statutory requirements which are felt to be superfluous. This is such an example. He rightly set out that there is already an existing power for the Pensions Regulator to appoint trustees where he can appoint a trustee without reference to the register. Therefore, it would not seem to present a problem that the register goes. I will come back to that issue.

I will clarify a point made by the noble Lord. The Minister who made the commitment about savings was the Pensions Minister in another place. I am sure that if he said it we can underline the commitment. It is not a statement that I or a Minister in the Lords made, but I am aware that any savings from this will be reinvested and we will confirm that in writing to the noble Lord. I understand that to be the position.

I am happy to reassure the House that the regulator is committed to ensuring that any process to replace the register would provide the same level of assurance to members and schemes that an independent trustee appointed to a scheme is fit for the task. That, after all, is the paramount issue. The selection criteria would remain rigorous and transparent. The criteria and processes being published on the regulator’s website, along with the procedures for appointing and removing trustees, would be guaranteed. We will ensure that appointments will continue to deliver the best candidate for the job, given the specific circumstances of the scheme in question.

I think there is little doubt that this register is superfluous and that there is the ability for the Pensions Regulator to draw on an existing pool of trustees without the need for the register. As the noble Lord, Lord McAvoy has highlighted, savings will be reinvested and I will confirm that in writing to him. On that basis, I ask that the clause should stand part of the Bill.

Clause 44 agreed.

Clause 45: Rules about modification of schemes

Amendment 23

Moved by

23: Clause 45, page 19, line 10, at beginning insert “which is not a right or entitlement to collective benefits becoming, or”

Amendment 23 agreed.

Clause 45, as amended, agreed.

Amendment 23A

Moved by

23A: After Clause 45, insert the following new Clause—

“National Employment Savings Trust transfers

In relation to the National Employment Savings Trust, within one month of the passing of this Act the Secretary of State must lift the ban on transfers and the contribution cap.”

My Lords, the amendment in my name and that of my noble friend Lord McAvoy would require the Government to lift the restrictions on the National Employment Savings Trust—or NEST, as it is commonly known—within one month of Royal Assent. This includes the ban on transfers and the contribution cap.

The Government’s decision not to lift the contributions limit and bulk transfer restrictions on NEST until April 2017 or to lift the ban on individual transfers in and out until October 2015 is cause for real concern. In his Written Statement of 26 September, the Minister said that,

“the European Commission has considered and approved the modifications to the State aid case for NEST”.—[Official Report, 26/9/14; col. WS 167.]

He can therefore see no barrier to lifting the restrictions that apply to NEST within the timescale set out in our amendment. Crucially, I believe it to be in the public interest for the Government to proceed in such a way.

I cannot understand why the Minister is so reluctant to lift the restrictions. I will highlight all the positive statements made by the noble Lord, Lord Freud, in support of NEST. The noble Lord, Lord Freud, said, in a Written Statement on 26 September, that NEST has proved its value. It now has more than 1.5 million scheme members and works with about 9,000 employers. That number is rising. NEST provides a quality, low-cost pension scheme targeted at low to moderate earners and small employers. Its public service obligation ensures that NEST makes sure all employers are able to engage with their automatic enrolment obligations. On 18 November, the Minister reminded us:

“From June 2015 1.2 million smaller employers—those with fewer than 50 workers—will start to engage with auto enrolment. NEST will be critical in ensuring that these small employers are able to access low-cost pension provision for their workers”.—[Official Report, 18/11/14; col. WS 13.]

I think that all sides of the House agree with the Minister on the crucial role NEST has to play in its target market, and with the evidence that it is performing very well.

It is worth expanding on the NEST success story. As the pensions industry acknowledges, NEST provides best practice standards, which have encouraged the insurance companies to improve their standards. It is low cost for employers and employees. It is simple and cheap to administer. It has high standards of governance. As NEST’s website proudly states, it has an “award-winning investment strategy”. Finally, NEST provides an excellent solution for employers with a high staff turnover, such as the catering and construction industries, because the pots remain and can be paid into by the next employer. Can the Minister confirm that he agrees with this analysis: that NEST has proved its effectiveness and worth? If he does, I fail to understand his reluctance to lift the restrictions.

I agree that there was a good case for having restrictions before it was clear how the market would progress, but these restrictions are no longer justified. The auto-enrolment market is now well under way and NEST has not taken all the business, which had been a concern among some. We should therefore examine the impact of failing to lift the restrictions and caps within one month of Royal Assent, as our amendment suggests. The restrictions to date have meant that NEST has been able to get less of that low and medium-earning pension than it otherwise would have done. If this continues, the effect would be to contribute to the increase in the number of small, dormant pension pots. It may also miss out on the benefits of scale. We debated that earlier.

Banning transfers in and out will be a problem for employers. The Department for Work and Pensions’ research found that more than 80% of employers want one provider. That makes sense: it reduces their administrative burden and means that they can provide their staff with pensions that are easier to understand. The ban means that employers who are thinking about using NEST but currently have a pension scheme of any type will be discouraged from using NEST because they cannot transfer in the pension assets in their current scheme. The Government purport to encourage employers to use NEST but, by refusing to lift the ban on transfers in and out right away, the effect is to discourage employers who currently have a scheme elsewhere.

While the contribution limit will be lifted from 2017, retaining the income cap will discourage employers who have a broader salary range than low to middle income earners using NEST as they will have to administer two pension schemes. This may be a minority of employers, but it is an unnecessary restriction and one which we know employers will not like.

We conclude, regretfully, that NEST is being disadvantaged against many of its market competitors, and we cannot understand why the Minister is doing this. The effect of the Government failing to lift the caps and restrictions in time for the remaining employers to establish auto-enrolment is to ensure that the restrictions on NEST remain until every employer has staged. Is it really the Government’s intention that by the time NEST restrictions are lifted auto-enrolment will be complete?

The Minister should consider also the public interest obligations of NEST and the subsidy that it receives from the taxpayer. First, the caps and restrictions mean that NEST is disadvantaged in competing for many of the low and medium-earning savers for whom it is designed. That may well result in customer detriment for many of those workers. Secondly, the Government’s proposals fail the public interest test. If large numbers of low and medium-earning employees cannot use NEST, it is being prevented from delivering its public interest obligation. Thirdly, restricting NEST impacts on its financial position and makes it harder to pay back the state aid earlier which would allow it to reduce its charges even further. This again undermines NEST’s public interest obligation and its mission to deliver low-charge, high-return pension provision.

Finally, the rest of the industry is reported in the pensions press as increasingly not having the capacity or, possibly, the desire to cope with all the employers who are still to establish auto-enrolment. Smaller employers, often with low to medium-paid staff, are in this position. Having had, it is said, the advantage of the NEST restrictions in place while larger employers establish their auto-enrolment schemes, the big pension providers have recruited the profitable business. Perhaps the industry is less interested in the smaller end of the market, and thus the need for NEST is even greater.

I am sure that the Minister will be able to explain why the Government have so far refused to lift the restrictions. I urge him to accept the amendment. If he cannot do so today, I hope he will take it away and reconsider before Report the strong case for the restrictions to be lifted not in a few years’ time but before auto-enrolment is complete. I beg to move.

My Lords, I do not want to spend too much time on this. Obviously I am not unfamiliar with the issue of NEST, and the restrictions on NEST. We are now in a position, in 2015, where the continued bans on the transfer into NEST are clearly to the detriment of pension savers. It will be increasingly difficult to mobilise the argument that continuing those bans is in the pension saver’s interest. It denies many people a good home for their legacy savings and is unquestionably increasing the proliferation of small pots, particularly in the SME community. One of the merits of NEST is that it would reduce the proliferation of small pots. It is not benefiting the employers any more, who want the flexibility to use NEST and bulk transfer the accrued pension savings of their existing employees or scheme members, which they are denied. As far as I can see, the main beneficiaries of the continued ban are still predominantly the private pension providers that benefit from restricting NEST’s market proposition.

The Government have dealt with the EU state aid requirements, which no longer pose a barrier. The desire to get NEST to focus on a target market of small and medium-sized employers has been achieved. The auto-enrolment market is well under way. A cursory look at the figures will show that the private providers have secured a very large proportion of the new pension business, which is likely to grow. NEST is hardly tipping the market against them any more.

It is difficult to see why the Government are taking so long to make a change that would benefit pension savers and, particularly, facilitate efficiency among the employers who are bearing the responsibility of having to establish workplace pensions and cannot pick up what may be a preferred position in NEST because they are left having to run an arrangement for the legacy savings of their existing scheme members or employees.

My Lords, I thank the noble Lord, Lord Bradley, for moving this amendment and the noble Baroness, Lady Drake, for her contribution. As noble Lords will be aware, NEST was established to support automatic enrolment by ensuring that all workers have access to a low-cost workplace pension scheme. Its design, including the annual contribution limit and transfer restrictions, focuses NEST on its target market of low to moderate earners and smaller employers who the market found difficult to serve. Since October 2012, when automatic enrolment began, NEST has fulfilled its role very successfully. I am happy to reinforce the statements made by my noble friend Lord Freud. We think that it has done an exceptional job. It already has more than 1.8 million members and 10,500 participating employers. NEST is doing what it was set up to do—supporting automatic enrolment.

During the winter of 2012 and the spring of 2013, the Department for Work and Pensions undertook a call for evidence. This sought to assess whether there was evidence that the annual contribution limit and the transfer restrictions placed on NEST were preventing it serving the market that it was designed for. The evidence showed that these two constraints were not preventing NEST serving its target market. That said, the call for evidence revealed that the constraints were sometimes perceived as a barrier to using NEST. Smaller employers have limited experience of providing pensions for their workplace. A perception among smaller employers that using NEST is unduly complex could make choosing a scheme unnecessarily complicated. This could damage confidence in automatic enrolment and undermine its aims.

With that in mind and taking account of the evidence, the Government determined that removing the annual contribution limit and the transfer restrictions that we are debating to address the perception of restriction would not be a proportionate response at the time, given the importance of the role that NEST was fulfilling in ensuring automatic enrolment. We conceived that to be its core function and where we thought that it should focus. We therefore concluded that legislation to remove the constraints in 2017 was a balanced approach. I think that it is scheduled to happen on 1 April 2017, which is some two years away.

The noble Lord, Lord Bradley, raised the state aid situation. It is our understanding that we would have to reapply to vary the state aid consent that we have. Bearing in mind that it took us a year to get the original state aid clearance, that is clearly a significant period of time. We will double-check that in light of the comments made by the noble Lord, but I have had that confirmed while we have been debating this matter. We will reassess that, and I will write to the noble Lord and others who have contributed in the debate to confirm that position or otherwise.

Therefore, we consider two issues to be at the forefront of this. The first is that we want NEST to fulfil its core function. We believe it is doing that very well and do not want to disturb that. The second is that 2017 is only two and a bit years away, and we believe it could take a significant amount of time to vary the state aid consent, but we will have another look at that issue. In the mean time, given that I have undertaken to examine that, I ask the noble Lord to withdraw the amendment.

Once again, I am grateful to the Minister for his response and that, if there is lack of clarity over the state aid issue, he will look at it and write to me about the actual position, so that we can apply it to the amendment. I hope that he will be able to do that before Report, so that we may consider whether it is appropriate to pursue the matter further. In the light of his assurances on that point, I beg leave to withdraw the amendment.

Amendment 23A withdrawn.

Clause 46 agreed.

Schedule 2: Other amendments to do with Parts 1 and 2

Amendments 24 to 28

Moved by

24: Schedule 2, page 63, line 19, at end insert—

“( ) in the substituted subsection (2)(a), for “hybrid scheme” substitute “shared risk scheme”;”

25: Schedule 2, page 64, line 8, at end insert—

“( ) For the definition of “defined benefits scheme” substitute—

““defined benefits scheme” has the meaning given by section 2 of the Pension Schemes Act 2014;”.”

26: Schedule 2, page 64, line 9, at end insert—

“““collective benefit” has the meaning given by section 8 of the Pension Schemes Act 2014;””

27: Schedule 2, page 64, leave out lines 10 and 11

28: Schedule 2, page 64, leave out line 21

Amendments 24 to 28 agreed.

Schedule 2, as amended, agreed.

House resumed.

House adjourned at 9.42 pm.