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Pension Schemes Bill [HL]

Volume 778: debated on Monday 16 January 2017

Third Reading

Clause 11: Scheme funder requirements


Moved by

Clause 11, page 7, line 16, at end insert—

“( ) The regulations may include provision— (a) setting out requirements relating to the audit of accounts;(b) applying some or all of the provisions of Parts 15 and 16 of the Companies Act 2006 (accounts and report; audit), with or without modifications.”

My Lords, this is a technical amendment and simply clarifies the scope of the regulation-making power in Clause 11 to ensure it meets the policy intention. Clause 11(4) provides that the Secretary of State may make regulations setting out requirements relating to a scheme funder’s accounts. The Government have always intended that the power would enable regulations to be made requiring scheme funders to produce full audited annual accounts, if they are not otherwise required to do so—for instance, in accordance with the Companies Act 2006. This is set out in the delegated powers memorandum, which has been published. However, it was brought to our attention that specific provision about audit in existing legislation might cast doubt on the breadth of the power, so this amendment is intended to put that position beyond any doubt.

The Secretary of State will be able to require in regulations, where appropriate, that scheme funders’ accounts must be audited. This is an important clarification because the scheme funder’s accounts, along with the scheme accounts and the business plan, will provide key financial information on which the Pensions Regulator will base its assessment of the master trust’s financial sustainability. The scheme funder’s accounts will enable the regulator to monitor the scheme funder’s financial position and assess the strength of any financial commitment to the master trust set out in the business plan. Requiring the accounts to be audited ensures that the scheme funder’s financial position is independently verified by a qualified auditor.

The amendment makes it clear that the regulation-making power may be used to apply some or all of the provisions in Parts 15 and 16 of the Companies Act 2006, which relate to the preparation and auditing of accounts and other related matters in respect of different types of scheme funders. Having this flexibility will enable the Secretary of State to take account of the range of master trust structures and financial arrangements with their scheme funders.

Before I conclude, I offer my thanks to the noble Lord, Lord McKenzie, and other noble Lords who have taken part in the debate for the generally positive approach they have taken during the passage of the Bill. I appreciate that my noble friend Lord Freud has already offered his thanks to all who have been involved in the Bill. However, as he moves on to pastures new, I echo those thanks and offer my thanks to him and to my noble friend Lord Young of Cookham for the help they have given me and for ensuring that I was appropriately briefed for this final and, I hope, rather short stage. We all trust that another place will be able to give it equally effective scrutiny, as it always manages to do.

To conclude, the amendment is intended to ensure that the scope of the regulation-making power in Clause 11(4) is wide enough to enable the policy to operate as intended. On that basis, I beg to move.

My Lords, I welcome the amendment from Her Majesty’s Government, as I very much welcome the Bill. However, it still raises the outstanding problem in Clause 10, on scheme funding. The point is that a master trust can, if it so chooses, be treated as a separate legal entity and, as the Bill stands, can still transfer the risk to another entity. That remains one of the problem areas, because solvency for any of these master trusts is absolutely vital to current and future pensioners. I place on the record that although what we have heard this afternoon is an improvement, it does not solve that problem.

While I am on my feet, there is still concern from insurance companies that run master trusts that, under the Bill, they may be required to keep separate solvency requirements for the master trust element of their business when the majority must already comply with Solvency II financial regulations, which are extremely stringent and ought to be enough to cover any of the required security for their master trust business.

My Lords, I echo some of my noble friend’s concerns. I welcome the Minister to his position and wish him much success.

Obviously, I welcome the Bill, which is much needed. It is vital that we protect members’ pensions and ensure that accumulated savings are safe in the event that the master trust scheme fails. Therefore, I broadly welcome the measures in the Bill. However, having engaged with Ministers to try to tidy up some important points to ensure that the Bill works as intended and needed without serious side-effects, I would like to place on record some issues that still require attention.

There are three substantive points now that the amendment passed last time on tail-risk insurance is included and will go to the other place. First, the provisions that could see master trust members stripped of their pension rights during a pause order need to be reconsidered. It cannot be right that just because the regulator has some concerns about the scheme they are in, the law should override members’ legal and contractual entitlements to pension accrual and impose an effective pay cut on them. During the pause order, members’ and employers’ pension contributions, together with the tax relief, should still be collected and accrued rather than lost forever, as the Bill would permit. Pause orders could last for a long time, even if that is not the intention.

Secondly, it is strange, as my noble friend has just indicated, that the Government are not making special provisions for master trusts already backed by an insurance company that meets PRA capital adequacy and solvency requirements. These are tougher than those that will be imposed by the regulator on master trusts. Such insurance company master trusts can run at lower costs and are generally more secure than they would be if backed by a stand-alone business entity instead of a multi-pronged larger business. As things stand, the Bill’s requirement for a separate company to back each master trust will impose higher costs on both providers and members, while in many cases also reducing the security of insurance-backed master trusts.

Thirdly, the requirements in Clause 25(4)—which I know the Government are consulting on—relating to bulk transfers, need, perhaps, to be relaxed. For some time the pensions industry and pensions lawyers have been calling for a more appropriate transfer regime for DC schemes. However, the current wording could make the DC to DC bulk transfer process much worse than the current DB-based rules because it is so prescriptive.

Finally, there are two issues that have not been included in the Bill at all, which is rather a missed opportunity. I will just mention them here and hope that they may be followed up in the other place. One is the plight of plumbers who are facing personal bankruptcy due to the draconian Section 75 debt requirements of non-associated multi-employer schemes, which force remaining employers to buy annuities for workers they have never employed, while other employers have walked away or left.

The second is the issue of net pay schemes, which impose an extra 25% charge on the pension contributions of their lowest-paid members. While we are drawing up requirements for master trusts and assessing their adequacy, surely we need to ensure that master trusts treat their lower-paid workers equitably and find ways to give the tax relief to these staff if they have a net pay structure. The Treasury could also help here by allowing schemes to claim tax relief for these low-paid workers; the current situation, whereby the lowest earners can be denied the 25% government bonus they would have in another scheme without being warned, must be addressed.

On the whole I welcome the Bill and I thank the Ministers for their hard work in putting it to the House.

My Lords, it is a pleasure to follow my friend of many years’ standing, the noble Baroness, Lady Altmann. She is an expert on these things and is right that opportunities have been missed and there are still some bits of unfinished business. However, the House has acquitted itself well in the consideration so far. I welcome the noble Lord, Lord Henley, to his post. Those of us with long memories remember that he has been in this role before, so he is not without experience in these matters and our expectations of him are extremely high. I wish him well in his new responsibilities. I am sure he will continue his predecessor’s attempts at making sure that Members of this House are fully briefed on some of the technical provisions that we still have to deal with.

The Government were right to bring forward amendments to change a lot of the first-time affirmative resolutions and procedures for the statutory instruments that flow from some of these provisions. In passing, I note that this amendment to Clause 11 would introduce a negative procedure. I hope that is sensible, because the more affirmative instruments we get, the better our chance of understanding what is being brought before us. Despite that, I agree with the amendment as it stands.

I hope—this is merely a request for a repeat of an undertaking that was given earlier—that the Government will bring forward an updated impact assessment when, later this year and in 2018, we consider the secondary legislation that flows from this primary legislation. The impact assessment and the continuation of the consideration of the fine print of the provisions are still required to make sure that the Bill achieves its purposes in a way that is fair to all. In the process, I hope that, as the noble Baroness, Lady Altmann, said, the other place can pick up some of the opportunities that have been missed during the Bill’s consideration in this House. However, I wish the Bill well and I hope we continue to have the constructive and positive relationship with the noble Lord, Lord Henley, that we had with his predecessor.

My Lords, I begin by welcoming the noble Lord, Lord Henley, to his role, even at this 12th hour on the Bill.

We certainly do not oppose the amendment. As explained, it is intended to put beyond doubt the ability to introduce regulations relating to audit, particularly in relation to scheme funders, which under the Companies Act are not required to provide audited accounts. Perhaps for the record the Minister can set out the nature of scheme funders which might fall into this category. Presumably they could be partnerships, entities incorporated overseas or smaller entities, although I am not sure how they might feature in these arrangements. Can he also tell us whether it is planned to use these powers differentially in respect of scheme funders that fund benefits other than money purchase benefits? As an adjunct to that, we very much share the concerns expressed by the noble Lord, Lord Naseby, about how Clause 11, as it will now be, will work.

As the Bill passes to the other place, it is time to offer our thanks to the Minister, the noble Lord, Lord Young of Cookham, for the courteous and inclusive manner in which he has handled the Bill. We look forward to the same from the noble Lord, Lord Henley, on subsequent Bills. We have already given our thanks to the noble Lord, Lord Freud, for the role that he played. This is a narrow Bill but one with significant implications, which is why we want to see it make speedy progress. It has not been the easiest Bill to scrutinise, given the combination of the technical nature of its subject matter and the raft of regulation-making powers that it contains, but we have seen a Government in listening mode in some respects—although of course not all, and the noble Baroness, Lady Altmann, identified some of those.

I should take this opportunity to thank my noble friends who have participated in our deliberations—in particular, my noble friend Lady Drake for the expertise and precision that she has brought to our work. We trust that the important amendment concerning the scheme funder of last resort which she pressed on the Government will endure.

I also express our thanks to the Liberal Democrats, led by the noble Baroness, Lady Bakewell, the government Back Benches for their constructive approach, and indeed the Cross Benches. We have seen a Bill team who are thoroughly on top of their brief and have patiently spent time explaining to us aspects of the Bill which might otherwise have fallen on stony ground. Taking this matter forward now falls to the tender mercies of our colleagues in the other place.

My Lords, I thank noble Lords for their very kind words and in particular, the noble Lord, Lord Kirkwood, for his high expectations of me in replacing my noble friend Lord Freud. If I do only half as well as my noble friend, I think I will be doing pretty well—I hope the House accepts that I will try my best. I can also confirm to the noble Lord that impact assessments will be updated for the new regulations. The timing for the formal consultation on the draft regulations will obviously depend on a number of factors, but we would expect that the initial consultation will take place some time in the autumn of this year.

I am very grateful to the noble Lord, Lord McKenzie, for not opposing the amendment. He had a number of questions, particularly in relation to scheme funders and I would prefer to write to him about those. He also asked whether the Government were going to table an amendment on scheme funders of a master trust that offers both money purchase and non-purchase benefits. I can confirm that they intend to table such an amendment and that can be a matter for another place.

My noble friends Lord Naseby and Lady Altmann raised concerns that go wider than this simple amendment, which merely relates to audit. Those matters can be considered and no doubt, will be noted by my noble friends when they take this Bill through another place. As I said in my introductory remarks, I expect another place, as always, to look at this Bill with its usual due diligence and I am sure that it will take note of the comments made by both my noble friends. If it can assist them, I shall try to write to them before that, but everything they have said will be noted by my honourable and right honourable friends. With that, I echo the remarks of the noble Lord, Lord McKenzie, in thanking all those who have been involved in this Bill.

Amendment agreed.

A privilege amendment was made.

Bill passed and sent to the Commons.