Committee (4th Day)
Relevant documents: 4th and 7th Reports from the Delegated Powers Committee and 2nd Report from the Constitution Committee
My Lords, I am obliged to make the usual announcement: that if there is a Division in the Chamber, this Committee will adjourn immediately for 10 minutes.
80: After Clause 125, insert the following new Clause—
“Compensation payments under Pension Protection Fund
In Schedule 7 to the Pensions Act 2004 omit paragraphs 26, 26A and 27 (compensation cap).”
This is a rather technical amendment in many ways. I declare my interest as the president of the British Airline Pilots Association, one of the unions that would be affected by a change in the law such as is suggested here.
Members generally pay into pension schemes on the basis of putting so much in for an accrual rate, which gives them a pension. But if pensions go into the lifeboat, the amount that people can get out is limited. This ruling was originally done for a very good reason: to stop boards of directors awarding themselves large pensions, then a company going bust while they transferred the liability for their excesses into the lifeboat. However, it had an effect which I do not think was foreseen. There are a number of people in the private sector who have quite high earnings and are in pension schemes—at that time largely in DB schemes—and they were affected by this ruling. In short, it meant that people were paying into a scheme but not getting out what they had been paying in for. They were given a promise but it was not honoured, because of the cap that was put in place.
Amendment 80 seeks to review this cap. I accept that it is a complicated matter and would be more than happy if, in responding, the Minister can say that she is prepared to have this added to the subjects we are to discuss at the meeting which has been promised. I recognise that if we were to change the law, we cannot just abolish it. We would need to look at things; in particular, I suggest that we would need to erect some safeguards with reference to accrual rates, so that we would not allow an accrual rate above a reasonable level—possibly 2%. Any person affected would also have to be able to demonstrate that they had paid into the pension scheme over a number of years, and had not been awarded a lump sum of years just before the company went under. There would also have to be maximum contributions for tax relief. In other words, you could not suddenly have a huge contribution going in and building up a large amount of pension.
The amendment is basically aimed at enabling workers who have paid for a pension scheme but happen to be high earners to look forward to getting what they have paid for. I point out that, at the moment, the main people affected would be those who used to work for Monarch. But I would not like to predict where, for instance, the British Airways pension scheme will be 10 years from now. The Spanish company that is now the owner of BA might well be in a position where, for some reason or other, it is not able to fully honour the pension agreement. It is better to look at it now than to do so then.
I also make the point that most high earners in society are covered by public sector pension schemes. The people who work in the health service, for instance, are covered by the health service scheme; senior civil servants are covered by the civil service scheme; most people in the nuclear industry are covered by a public sector scheme. It is often forgotten that even in private schools, the staff are actually in a government-backed scheme. There is a lot of debate going on at the moment because the costs for private schools that pay into the Department for Education-funded scheme have increased considerably. None the less, teachers in private schools are covered by a public scheme.
As I said at the beginning, I ask only that the Minister would kindly agree to add this to the agenda. It is a problem that is capable of being solved. It is not quite as simple as my amendment suggests—I accept that—but putting forward this amendment was basically the only way of dealing with the scheme as it stands. Quite a bit of legislation, in the form of statutory instruments, would be needed to cover the way in which any deviation or loosening of the scheme was governed, because it is emphatically not the intention of this amendment to free up pension schemes so that irresponsible boards of directors could award themselves large pensions. This is to do with workers who have paid into a pension scheme for many years and are unwittingly caught by the cap because their employer is unable to fulfil its pension obligations.
I have added my name to this amendment. I support my noble friend and echo his request to the Minister for a meeting to discuss this issue further. I understand that it may not be possible to arrange immediately, and needs careful consideration, but, given the rulings in court cases and so on, it may be worth trying to address some of these issues, which are clearly causing distress to an important, albeit small, number of people.
My Lords, we have some difficulty with this amendment. We are more than happy to put it on the agenda for a meeting, although I recall earlier sessions when I think the noble Lord, Lord Balfe, convened a meeting with the pilots’ association for us to range over this. At that stage neither we nor the Government were particularly happy with any change—or the sort of change suggested here.
There is an issue about affordability for the PPF that has to be taken into account. We should also bear in mind that funding for the PPF comes from a levy on these other pension schemes, so the higher costs go the greater the hit on those schemes. As I understand it, the proposition is that it would cover not only those who receive a payment in future but all those currently receiving capped payments. It would free up those amounts, too.
I do not know whether the noble Lord has an impact assessment for this proposal; if so, we should certainly see that. Although he partially dismissed it in his speech, when the scheme was designed the moral hazard issue was very much in mind—heavy hitters and senior people in organisations are better able to control the destination of their pension funds and remuneration, and there should be a mechanism in there to ensure that the options were not open-ended. At the moment the cap bites, I think, at something like £40,000, so we are not talking about people with minimal pensions. I think the average payout from the PPF is about £4,000, so there is a big contrast. Having said that, I am more than happy to join a discussion to review these issues—but I am not convinced that we would change our position.
The PPF has done marvellous work over the years, enabling people to receive an income when there would have been nothing. It is a very good organisation. We may check to see whether its view now is different to its view previously, but I doubt it, so the onus is very much on the noble Lord to come forward with an impact assessment to say how much this would cost if we did it. Having said that, we on this side would not be able to sign up to it.
My Lords, let me begin by thanking the noble Lords, Lord Balfe and Lord Sharkey, and the noble Baroness, Lady Altmann, for this amendment. I believe that the intention is to improve member protection in the event of employer insolvency. The amendment would remove the Pension Protection Fund compensation cap currently applied to payments for members who were under their scheme’s normal pension age when their employer became insolvent.
It might be helpful if I first explain that the Pension Protection Fund is a compensation scheme and, as such, was never intended to meet the full pension promise made to every member of a failed scheme. Members over their scheme’s normal pension age and those who were in receipt of survivors’ benefits or an ill-health pension broadly receive full protection. Everyone else receives broadly 90% of their scheme benefits, subject to an overall cap. This means that the cap applies to early retirees as well as deferred members, ensuring that Pension Protection Fund compensation is calculated on the same basis for members of the same age in the same scheme.
It is worth mentioning that the Government are defending the cap before the domestic courts. Their position in this litigation, and current policy, is that the cap meets important objectives and should be retained. First, the cap helps to give greater protection to those who have reached their scheme’s normal retirement age at the time of employer insolvency. These members are likely to have fewer opportunities to supplement their income in other ways. Secondly, the cap helps to control the costs of the fund—costs that may otherwise fall on levy payers. Finally, as we have heard, the cap is intended to encourage people with influence over the schemes to fund them responsibly and to discourage excessive risk-taking. Key decision-makers have an incentive to ensure that their schemes stay out of the Pension Protection Fund because the cap is likely to have a direct impact on the compensation that they would receive.
The level of the cap was set after much research and analysis. The current full amount is around £40,000 at the age of 65. Members under their scheme’s normal pension age initially receive 90% of the capped amount, which equates to around £36,000 at the age of 65. Nevertheless, this far exceeds the estimated average defined benefit pension of around £8,000. Only a few members of the Pension Protection Fund are affected by the cap. The nature of the cap means that it affects predominantly high earners; abolishing it would, therefore, mainly benefit those high earners.
In conclusion, the cap is a necessary and proportionate means of achieving a number of significant policy aims in relation to the Pension Protection Fund compensation scheme. I hope that this provides sufficient reassurance to noble Lords, and I urge the noble Lord to withdraw his amendment. At the same time, we would be more than happy to add this issue to the agenda for our meeting, which has been arranged for Thursday 12 March at 10 am.
I thank noble Lords for this short, but interesting, debate. An interesting part of my role is that when David Cameron said, “Try to be helpful to as many trade unions as you can”, I seem to have collected some of the higher paid trade unions such as those for hospital consultants, British airline pilots and one or two others in the TUC. It is always great fun to go down to the TUC Congress, meet them there and hear them muttering away. I take the points that have been made. The feeling arose largely out of the Monarch situation in which a number of people had paid a considerable amount in yet they were not getting what they saw as fair recompense. The point made to me, which I am sure will be made again, was that if they were in the public sector, there would be no case for them going into the Pension Protection Fund because public sector funds do not go there, but because they were in the private sector—
The point the noble Lord makes about public sector funds is right, but in trying to make comparisons between somebody with a public sector pension and people who are not in that position, all sorts of differentials come into play, such as general levels of remuneration. With great respect, I do not think the noble Lord’s argument stands up in that respect.
Perhaps I mix with rather affluent members of the medical profession. I had a session recently with a hospital consultant staff association, which made some very firm points about how high earners were being discriminated against. I am not making the hospital consultants’ point here. I am making the point that the public sector basically has a system of protection so that when a Permanent Secretary or a member of the First Division Association retires, there is no case that the FDA pension will ever go into the lifeboat. I was making the point that was made to me, which was that members were paying into a fund that they were not receiving benefit from and that if they had been in the public sector they would. I am very pleased that the Minister has offered to discuss this, although having heard the response I am not sure that the discussion is going to lead very far. I am pleased that we have had this constructive debate and on the basis of what has been said, I beg leave to withdraw the amendment.
Amendment 80 withdrawn.
Clauses 126 and 127 agreed.
Clause 128: Further provision relating to pension schemes: Northern Ireland
81: Clause 128, page 120, line 33, after “sections” insert “(Climate change risk) and”
Member’s explanatory statement
This amendment is consequential upon the Minister’s amendment to insert a new Clause after Clause 123.
Clause 128, as amended, agreed.
82: After Clause 128, insert the following new Clause—
“Pension Schemes Commission
(1) Within six months of the passing of this Act, the Secretary of State must establish a Pension Schemes Commission to—(a) conduct a strategic review of public policy regarding pension schemes, and(b) make recommendations.(2) The Secretary of State must respond to reports from the Pension Schemes Commission with a written statement laid before each House of Parliament.”
My Lords, it will not take us long to deal with this amendment. When it was conceived as an amendment, there was a fairly grand design behind it but, as time has moved on, it has perhaps condensed just to a statement of beliefs in the key issues. The amendment calls for the establishing of a pension schemes commission—I hesitate to raise that issue in the proximity of my noble friend Lady Drake; we live in awe of what that commissioner achieved. The idea of the commission would be to conduct a public policy review of pension schemes. There is plenty to reflect on without stepping on the policy responsibilities of the Minister, or indeed of any Select Committee.
In recent times we have experienced the implementation of a Pensions Commission and auto-enrolment; the new state pension; changes to state pension age; the so-called pensions freedoms; master trusts, CDCs, and the future of DB schemes; an increased focus on governance, transparency, levels of charges and the pension tax system. Some of this has reached a degree of maturity and some not; some has been seen in the strategic context, and some not. In respect of this, there remain the ongoing matters of gender equality, savings levels and, still, pensioner poverty. In addition, there is our consultation on investment principles and the important issue of climate change. Therefore there is scope in all of this to reflect in future pensions issues, and today I do no more than set down a list for consideration. I beg to move.
My Lords, I see that on the website of an organisation called This is Money, published on 20 January, Mr Opperman, who is of course the Minister with responsibility, is quoted as saying that he
“believes a new commission should review the future of the automatic enrolment system”.
Noble Lords may also remember that on 17 January, two think tanks, the Fabian Society and Bright Blue, launched a report calling for a cross-party commission on pensions. Responding to that, an organisation called B&CE published the following comments:
“Commenting, Guy Opperman MP, Minister for Pensions, said: ‘Over the last decade, Conservative and coalition governments have made huge strides to improve pensions for the next generation, with the introduction of auto-enrolment, an enhanced state pension and the development of the Pensions Dashboard. For the next stage of pension reform, we need to continue the consensus that emerged following the Pensions Commission of 2003 to 2005. A new Commission has cross-party support, and will help us map out the future of auto-enrolment, so we can boost contribution rates in the coming decades, and explore how we can support savers with pensions freedom reforms. Let’s not give up on the progress we’ve made in pensions through cross-party working. It’s time to explore ideas for the next generation’.”
It therefore seems that the thinking behind the proposed new clause in the name of the noble Lord, Lord McKenzie, has some support at the moment within the DWP.
My Lords, the noble Lord, Lord Young, has done the job for me, but broadly speaking, I support this amendment. As well as what has already been elaborated, it plays into the feelings that have come up several times as we discussed the Bill as well; namely that, although the noble Earl has said that there is policy, a lot of implementation is also yet to come, and perhaps some of us feel that some policy is also yet to come. I therefore hope that a commission could come along subsequently and that it would be able to have an overview of some of the newer things as well as reviewing older things and looking forward. Therefore, I also support the notion of having this pension schemes commission.
I look forward to hearing from my noble friend the Minister on this, but I confess that I have a little scepticism about this proposal. We have had many reviews of pensions, including the trailblazing Pensions Commission led originally by Adair Turner—the noble Lord, Lord Turner. Many changes have been made to the law, including auto-enrolment, which I think we in this Committee have all welcomed. Of course, those in the current Bill are important as we seek to tackle the issues raised by the BHS and Carillion cases and to introduce dashboards.
I am not convinced that this is the time for another commission and another review. I feel that this is the job of the Pensions Minister and the DWP. Quite a lot is going on in pensions, and the priority should be to make sense of the sort of issues we have discussed on this Bill or issues that arise on things such as exit from the EU, and to get on with those in a practical manner. I look forward to hearing from my noble friend. If she takes a different view, of course, I am happy to reconsider.
My Lords, I am grateful for the opportunity to respond to this amendment tabled by the noble Lord, Lord McKenzie. We do not think there is a need for this new clause to be included in the Pension Schemes Bill, as legislation is not needed for a pension schemes commission to be established. The pensions landscape has changed considerably since the 2006 Pensions Commission; there have been major reforms to the UK pensions system. We have successfully rolled out auto-enrolment, introduced the flat-rate new state pension, abolished the default retirement age and raised state pension age.
The first independent review of state pension age was published in 2017, and this Government have committed to undertaking a review of state pension age every six years, in accordance with statutory requirements, to enable consideration of various factors, including the latest life expectancy projections. This Government are committed to maintaining a pension system that enables financial security for current and future pensioners. Further refinement and evolution will no doubt be needed in future to take account of changes in the labour market, home ownership and debt.
However, a commission is not the only way to identify and make recommendations for the future. We continue to engage extensively with key stakeholders, including consumer and employer organisations and the pensions industry, working collaboratively to identify and take forward a robust programme of work that builds on the strong foundations now in place.
For example, the Government carried out a review of the automatic enrolment scheme in 2017. Implementation of the review measures will be subject to learning from the recent workplace pension contribution increases; discussions with employers and others on the right approach; and finding ways to make these changes affordable. Once the evidence on our reforms is clear, we will look again at the right overall level of saving and the balance between prompted and voluntary saving. We are monitoring the impact of pension freedoms and the effectiveness of regulation of the market and information and guidance.
It is right that individuals are trusted with their own hard-earned money and savings. They are best placed to manage their money throughout retirement. While it is not the Government’s role to monitor individual people and the decisions they make, we recognise that it is important to support individuals in making decisions for their retirement. That is why we established the Pension Wise service to provide free and impartial guidance to help consumers make sense of their options.
This Government are focused on delivering and improving aspects of the existing pensions system. We are open to looking at aspects of the current system, but do not feel that an examination of the fundamentals of the pensions system is appropriate at this time.
My noble friend Lord Young made the point that my colleague, the Minister for Pensions, has shown support for a commission. Noble Lords are right to pay tribute to those who were part of the Pensions Commission chaired by the noble Lord, Lord Turner, which was very successful at building consensus around the future of pensions policy. Although several individuals and groups have called for a pensions commission, there is currently little consensus about what the scope and structure of such a commission should be. We believe we can engage effectively with interested parties without needing another commission.
My noble friend Lord Young also mentioned Bright Blue and the Fabian Society calling for a pensions commission. Again, I understand that a number of key stakeholders have demonstrated their enthusiasm for a review of the pensions landscape.
I do not discount future reviews of some element of the pensions system. We have already undertaken some reviews and will no doubt undertake others. However, I believe that the fundamental structure of the pensions system, based on the recommendations from the Pensions Commission, is still valid.
The best answer I can give is that I will find out and write to the noble Baroness, because I do not have that information at the tip of my fingers.
The Bill will deliver further improvements, including strengthening consumer protections, improving scheme governance and communications, and facilitating the creation of pension dashboards. We will continue to review these improvements, including a contribution that a pensions commission could make in future. I respectfully ask the noble Lord, Lord McKenzie, to withdraw his amendment.
I thank the Minister for her response on this matter and noble Lords who have spoken in favour of this proposition. For those who have felt unable to support it at the moment, I simply make the point that there is no particular timeline: it does not say that it must happen all at one time, or that it must happen tomorrow. There are clearly aspects of the current system which are unsatisfactory.
If I had to encapsulate that in two or three words, I would say that pensioner poverty and under-saving are still with us, big time. Somehow, we need to address that. Having said that, I beg leave to withdraw the amendment.
Amendment 82 withdrawn.
83: After Clause 128, insert the following new Clause—
“Tapered reduction of annual pension tax allowance: review
Within 6 months of the passing of this Act, the Secretary of State must conduct a review of how legislation and policy governing pension schemes could be adjusted to mitigate adverse effects of the tapered reduction of annual allowance under section 228ZA of Finance Act 2004, and lay a report before each House of Parliament.”
My Lords, I have tabled Amendment 83, which sets a deadline for a review and is essentially probing in nature.
I am unashamed. I want to put pressure on the Government to do something—and fast—about the impact of the cap on senior or long-serving doctors and consultants. We have a mini-crisis here which dates back many months, and the situation is even more serious given the potential impact of Covid-19. I join others in commending the Secretary of State and the CMO for today’s all-party meeting, and for setting out all that is being done to manage this alarming virus—including encouraging clinicians out of retirement.
There is a pension problem. As my noble friend Lord Balfe told Parliament on 30 October, a BMA survey showed that 42% of GPs and 30% of hospital consultants were reducing their hours. There have been similar figures from the Royal College of Physicians. Doctors are attracting substantial tax bills to care for their patients, and are therefore reluctant to do extra sessions to clear waiting lists or to take on management. There are reports that as many as half our doctors are retiring younger than they used to and that the lowering of the annual allowance from £255,000 in 2010 to £40,000 today, and the increase in the retirement age to 65, may well be factors.
The situation is worse in hospitals than in GP practices, mainly because the latter earn less. However, GPs can be caught out if their practice income peaks temporarily because of a vacancy or because a doctor is missing. The reward for all the extra work and stress can be an extra tax charge. This is especially difficult for small practices, which, unfashionably, I have found to be the best, because they provide continuity of care, which saves on drugs bills and hospital costs. However, that is a matter for another day.
That brings me to hospital consultants, who are generally better paid than GPs but are critical to patient outcomes. I will never forget the lady consultant at King’s who managed me through the latter weeks of a pregnancy, when my youngest son refused to move.
The situation is serious. The impact of the coalition fix—to allow people to carry forward unused allowance from the previous three years—is, I think, running low. The DHSC consulted recently on proposals to allow senior medical staff to opt to build up a pension at a lower rate. This was, however, dismissed by the BMA as a sticking plaster. Understandably, it wants a change in the rules. As always, given the noises made by senior politicians, there is much hope—including on my part—about next week’s Budget.
What, therefore, can and should be done? I look forward to hearing from other noble Lords who have been kind enough to support this amendment, and from the noble Lord, Lord Warner, whose Amendment 86 proposes new regulations to ensure that NHS pension scheme members are reimbursed if they are worse off. I look forward to hearing how that would work.
Other approaches might include getting rid of the annual pension cap—the so-called annual allowance—and relying entirely on the lifetime allowance, which has been reduced over time. Alternatively, and perhaps more radically, we could move relevant senior medical staff on to non-pensionable pay, above a certain level, but pay them as salary the notional employer pension contribution that they miss out on. They would have a higher tax charge, but they would not be punished for working, which I think is the concern.
Many very intelligent people have spent hours trying to fix this problem, so it probably is not easy. There are ways to do it, and we must have a solution by the time this Bill reaches Report if the NHS is to overcome today’s growing challenges.
My Lords, Amendment 86 is in my name and those of the noble Baronesses, Lady Altmann and Lady Janke. It is a rather simple amendment for tackling a complex problem that is, as the noble Baroness, Lady Neville-Rolfe, has said, causing a great deal of damage to the NHS and to patients.
I will not go into the intricacies of the interrelationship between pensions and tax policy, or repeat the data that I laid out at Second Reading about how this is affecting doctors. The noble Baroness, Lady Neville-Rolfe, has given a reprise of some of that data. There is plenty of data showing the impact on doctors and the NHS; you do not have to look very far to find it. Noble Lords will therefore be relieved to hear that I will not go over that ground again.
The point of this amendment is to address what is happening on the ground now in our NHS. We have arrived at a situation in which doctors can neither control their pension growth nor predict their tax bills; that is where we have got to. Tax bills cannot be calculated until the end of the tax year in which the tax has been incurred; by then it is too late for doctors to adjust their earnings. In some cases, the tax bill exceeds the entire take-home pay that the doctor would earn in a given tax year. We are getting to the point where doctors have to pay to work: that is the situation we have created.
The only way that they can avoid the tax bills is to reduce their work in anticipation, which is what they are doing. I have previously set out the implications of that form of workload reduction, so I will not repeat them, but they include, in many cases, taking early retirement. The serious implications this has for patients and the running of the NHS needs no exaggeration. Suffice it to say that there has been a very large decrease in NHS medical clinical capacity, with very serious implications for patients and the functioning of the NHS. The latest BMA survey of 6,000 doctors shows that even more doctors, in this year and in the past, are planning to reduce their work commitments in the tax year, which is only a month or so ahead. This is why the situation is incredibly urgent.
This problem was so serious that NHS England acted to take the unprecedented step of agreeing to cover annual allowance payments for NHS doctors for the current tax year to try to ease the significant winter pressures on the NHS. At present, as far as I know, there is no plan to suggest that this short-term mitigation will continue into next year, let alone the longer term. It is all very well for the Government to pass last week an NHS Funding Bill, but if there is a serious shortage of doctors, it will not do patients much good.
The Government have been reviewing this problem for some time, but my information from the BMA and others is that they have not so far offered any worthwhile mitigation scheme. All that is available is the option of paying these large tax bills from future pensions by generating a loan against your pension which attracts a high rate of interest and effectively reduces your pension. This option will not reduce the outflow of doctors. Amendment 86 requires the Secretary of State to extend the NHS England scheme on a permanent basis. It also prevents doctors incurring any interest-bearing loans that will reduce their eventual pensions. It has been prepared with the help of the clerks, for which I am grateful, and discussed and agreed with the BMA and other professional bodies.
I am not saying that my amendment is the only solution to the problem—the noble Baroness, Lady Neville-Rolfe, has given some other options—but it is an attempt to apply an urgent response to stop more doctors leaving the NHS or reducing their capacity. If the Government can come up with a better solution, I will be delighted. So far, there is no sign of a solution acceptable to the profession that would stop the NHS haemorrhaging doctors.
Let us remember again that the new tax year starts in a month, and that the coronavirus epidemic threatens all of us. I listened yesterday to the Prime Minister and the Health Secretary referring to bringing back retired doctors; that seems to be an important part of their emergency plan for dealing with a potential epidemic. I wonder how aware they and their No. 10 special advisers are of this own-goal lurking in the bureaucracy. We can ill afford to lose doctors from our NHS through a self-inflicted government muddle when a solution is to hand.
My Lords, I too have signed both amendments which, as has been said, relate to the current situation of the punitive pension taxation on doctors in the NHS. The annual allowance means that retired doctors working additional hours may incur large tax bills even if they have had only a modest rise in pensionable pay; and the taper results in a further problem, as there is an effective tax cliff edge where people can incur additional tax bills of up to £13,500 if they cross the threshold by as little as a pound.
This huge disincentive to retired doctors who are working to fill staff shortfalls in the NHS has exacerbated the existing pressure. As the noble Lord, Lord Warner, said, the impact was such that NHS England took the step of agreeing to cover the annual allowance payment for NHS doctors for this tax year as a temporary mechanism. As he also said, it seems that so far there are no plans for this to be a long-term solution.
The BMA’s briefing tells us that the scale of the pensions problem and its impact on the NHS workforce and patient services cannot be underestimated. It is, unfortunately, being felt across the country. Waiting times for cancer and routine care are the longest on record. A&E performance is the worst since records began, and 11 million patients are experiencing unacceptable waiting times for GP appointments as doctors continue to be forced to reduce their work to avoid huge, disproportionate tax bills. There is an urgent need for the Government to address this situation. Amendment 83 calls for a review of the annual allowance and taper; Amendment 86 calls for the current short-term mitigations to be extended into the future on a permanent, statutory basis. Like the noble Baroness, Lady Neville-Rolfe, I want to put pressure on the Government. As she ably described, this could be approached in a number of different ways. I hope that we can put pressure on the Government, and I look forward to hearing what the Minister has to say about how this situation can be resolved.
My Lords, I support Amendments 83 and 86. Noble Lords have already explained the problems in great detail. However, this crisis dates back more than two years. NHS hospitals and regional authorities have been trying for some time to deal with the fall-out of the taper and to find a resolution, but so far there has been no action. The Government promised action within 30 days last December, and we are still waiting. The doctors and medical staff in this scheme were given a promise, but it has not been honoured because of flawed attempts to save money on pension tax reliefs for so-called high earners. Yet the costs resulting from the unintended consequences of the legislation—I understand the thrust of that legislation—in paying locums, cancellations and inadequate NHS services may well outweigh any savings that might have been achieved by trying to clamp down on high earners.
I was at a BMA consultants’ conference today, giving a presentation on pensions. In a room seating around 400, those consultants decided to have an emergency vote and it was unanimous in favour of urgent government action, such as Amendment 86 being introduced. There was clear anger around the room at what they feel is a betrayal of their terms and conditions of service. They had no warning of the changes in tax relief, which were said to affect only those earning more than £150,000 a year; in fact, the way that the cliff edge and the threshold work means they have hit people earning a lot less than that. They were given no chance to mitigate their losses. In the private sector or in other government schemes some mitigations have been offered, but not for the NHS.
In any case, the rules of this taper make it impossible to predict what tax bill you might incur as a result of being asked to take on extra work because it depends on your current year’s earnings, which you will not know until the end of the current year. The Government could consider using last year’s earnings; at least one might have a fighting chance of knowing what extra work one might be able to take on. The scheme-pays arrangement, whereby it is possible that staff will not have to pay the charge, is a loan at around 6% interest that rolls up every year. Some consultants in their 40s were explaining to me today how that feels so penal. One could imagine changing that interest rate, for example.
The bottom line is that even the NHS pension scheme was unable to provide the staff with the information that they, or their advisers, would have needed to predict what the tax consequences of the work they were doing might have been. If they do not know what the impact will be, it is logical that they are not going to do the work. I understand that the plan in the Budget may well be for the Government to increase the threshold and introduce a bit more flexibility. I can assure the Committee that if that is the plan, it will not solve the problem.
The proposal in Amendment 86 is a practical way in which doctors can be reassured that if they carry out extra work, especially in the current extreme medical environment that we may well be facing, they will not be penalised taxation-wise and pension-wise for doing so. This amendment might not fit precisely in the Bill, but I would be grateful to hear from my noble friends what the reaction is to the proposed method of dealing with this problem. If the Bill represents, as the BMA said in its briefing, a valuable opportunity to find a resolution to this long-running problem then I hope that it will be able to address the issue, and put our NHS and our most valuable medical staff back on an even keel.
My Lords, this issue has been rumbling around for far too long and it is time to try to get a solution to it, particularly, as many noble Lords have explained, because of the pressure that the NHS would have been under anyway but for the recent crisis. My noble friend Lord Warner made a strong case with his proposition and we would certainly like to reflect on it. I know that the problem is that lots of people have reflected from time to time on a possible solution. That reflection goes on, but we do not yet have a solution. But Report on this Bill will be coming up shortly, and of course we have a Budget of some sort not far in the distance.
I have a couple of questions. I do not know whether my noble friend Lord Warner or the Minister can help with them. Was the one-off payment that the NHS made to cover the annual allowance taxable, and what might the consequences of that be? Under the scheme-pays arrangement, as the noble Baroness, Lady Altmann, hinted, if the problem is the penal interest rate then what is to stop those rates being adjusted, and who controls them?
We also need to bear in mind in all this is that these rules, unless I misunderstand them, have general application in the tax system. We need either to find a way of having some special arrangements or to accept that the adjustments we make here would have to be run for the tax system generally. We will need to work through the consequences of that. I am conscious that this contribution has not added one bit of sense to a practical solution, which is what we need to reach. Maybe, at the end of the day, we simply need to rank the solutions that we have on the table and choose the best, even though that may not be optimisation.
I am sure we all remember the pressure about this—I certainly remember pressure from the old Luton and Dunstable Hospital about it—and the real adverse effect that it causes on the delivery of services. We cannot continue to allow that to go forward; we simply have to drive through a solution to this. That is the challenge; presumably, the Treasury has ultimate responsibility for meeting it. But if it will not then we should, with the help of my noble friend Lord Warner and his expertise in these areas.
My Lords, the amendment from my noble friend Lady Neville-Rolfe would commit the Secretary of State for Work and Pensions to review the tapered annual allowance on tax-relieved pension savings and require the Secretary of State to set out how pension schemes could mitigate any adverse effects of the taper. On the other hand, the amendment from the noble Lord, Lord Warner, would commit the Secretary of State for Work and Pensions to make regulations to require the NHS pension schemes to reimburse members for pension tax charges and, in particular, annual allowance charges.
I will set out where matters currently stand on this. First, in recognition of the impact that the tapered annual allowance is having for some doctors this year, NHS England has announced—as has been mentioned —a special arrangement for 2019-20 only, which doctors in England can use to ensure that they will not be worse off as a result of taking on extra shifts this tax year. This arrangement allows senior clinicians to defer an annual allowance charge through scheme pays. Their NHS employer will make a contractually binding commitment to pay a corresponding amount on retirement, ensuring that they are fully compensated in retirement for the effect of the scheme-pays deduction on their retirement income.
Health is a devolved matter. This special arrangement applies only to England, but we are aware that the Welsh Government and NHS Scotland have also put arrangements in place for the current tax year.
The Government most certainly recognise that urgent action is needed to resolve the pensions tax issue, which has caused some doctors to turn down extra shifts for fear of high tax bills. We are committed to ensuring that hard-working NHS staff do not find themselves reducing their work commitments due to the interaction between their pay, their pension and the relevant tax regime. That is precisely why the Government are taking forward their manifesto commitment to carry out an urgent review of the pensions tapered annual allowance, to make sure that doctors spend as much time as possible treating patients. This builds on the Treasury’s review into the effect of the tapered annual allowance on public service delivery, announced last August. The Government have announced that these reviews will report at the Budget on 11 March.
I understand that the ongoing reviews have received evidence from the British Medical Association, the Academy of Medical Royal Colleges and other representative organisations from across the public and private sectors. The Economic Secretary to the Treasury has held round-table discussions with key health sector stakeholders, as well as representative organisations across the public sector. The evidence provided will ensure that the Government can consider fully the impact of the tapered annual allowance and its effects on the NHS and other public services.
The amendment from my noble friend Lady Neville-Rolfe would have the Government commit to yet another review of matters relating to the tapered annual allowance. I hope she will accept that there is no need for a further exploration of this matter when the two reviews are ongoing and have not yet concluded, especially as those reviews will report shortly.
The amendment proposed by the noble Lord, Lord Warner, would commit the NHS pension scheme administrators to reimburse their members to the extent they had incurred an annual allowance tax charge. The practical difficulty with this, which I am sure the noble Lord does not intend, is that reimbursement from the scheme for tax charges could trigger an unauthorised payments tax charge for the member and a scheme sanction charge for the scheme. Noble Lords will appreciate that this is a very complicated area of tax law and, as I have said, could result in further unforeseen tax charges arising.
The noble Lords, Lord Warner and Lord McKenzie, referred to the interest rate being applied in this area. Perhaps I could just explain the background to this. HMRC rules require that when scheme pays is used to pay a tax charge, an actuarially fair reduction is made to the value of the pension. The discount rate used to value this reduction for public service pension schemes is the SCAPE discount rate plus CPI. The SCAPE discount rate reflects the Office for Budget Responsibility’s forecasts for long-term GDP growth in line with established methodology. Due to recent changes to the SCAPE rate and the CPI, the scheme-pays discount rate has fallen in 2019 to 4.8%.
My suggestion to my noble friend and the noble Lord, Lord Warner, is that it is preferable to wait for the outcome of the two reviews, which are ongoing but have not yet concluded. As I mentioned, they will report shortly, on 11 March. Ultimately, this is a matter for my right honourable friend the Chancellor. I am sorry to have to leave matters in the air, but I hope that my noble friend and the noble Lord will take away from this a good degree of reassurance that the Government are taking seriously the question of what impact the tapered annual allowance is having on NHS pension scheme members and that reviews into this matter are already under way.
I take my noble friend’s point on the specific proposals in Amendment 86 in the name of the noble Lord, Lord Warner, which I have signed. However, were the amendment to be redrawn to suggest that an extension of the current arrangements for 2019-20 be brought forward also into 2020-21, would that address my noble friend’s concerns about the unauthorised scheme payment and the charges to the scheme? We could time-limit this but also address the urgency, because even if something is reported in the Budget, it is unlikely that the staff will have the reassurance for the forthcoming tax year, which is only a few weeks away.
I just want to amplify the point made by the noble Baroness, Lady Altmann. Those of us who have been around in government for some years know that the announcement of review reports in Budgets do not necessarily mean that anything in those reviews will be rapidly implemented. My suspicion would be that any such reviews would have a longish period of consultation and would not appear in the next finance Bill—that is a likely outcome. Building on what the noble Baroness said, I need to go back to my clients—if I may put it that way—who will want to know what the position is. If I prove to be right over what happens on 11 March, would the Government be willing to consider something along the lines of buying two to three years for the NHS doctors? Will they help me get the wording right, so that it does not fall into the elephant traps that the Minister has set out? When we get to Report, we cannot just leave this; we have to come back to this issue with some credible solution. I would be delighted if the announcement on 11 March delivered a quick response, but if we do not deliver a response that covers the next two financial years, we will put the NHS in great peril.
My Lords, my answer to my noble friend and the noble Lord, Lord Warner, has to be exactly the same as that which I have already given. I can do no other than urge all noble Lords to wait for the Budget announcement. I cannot comment on what ideas the Chancellor has in front of him on this issue. Those ideas may or may not include those that have been articulated by my noble friend and the noble Lord—I do not know. I suggest that we get past next week and then take stock. No doubt noble Lords will consider how best to approach this on Report, if they feel that to be necessary.
My Lords, we have had a good debate and I think we have made it very clear that action is urgently needed in the NHS area. It goes wider, as the noble Lord, Lord McKenzie, said, but my amendment was a probing amendment—of the kind that I could get through the clerk—about these problems in the NHS, particularly now that we have the added threat of coronavirus. The noble Lord, Lord Warner, put it very well. It is an own goal lurking in the bureaucracy, although if you look on the internet it is quite easy to find the scale of the problem.
Doctors are having to pay to work and can hit a tax cliff-edge, as the noble Baroness, Lady Janke, said—through no fault of their own, it seems to me—and are not able to forecast exactly when that cliff-edge might occur. It is an unsatisfactory state of affairs. My noble friend Lady Altmann, with her forensic knowledge of the sector, has pointed out that the problem is now some two years old and that the Government made a promise to resolve it. As the Deputy Leader made clear, we must wait to see what the Budget says, but I would like to be clear that I think all of us will want to return to this issue if we feel that we have not made progress in the Budget on 11 March. I beg leave to withdraw the amendment.
Amendment 83 withdrawn.
Amendments 84 and 85 not moved.
86: After Clause 128, insert the following new Clause—
“National Health Service Pension Schemes: tax charges
(1) The Secretary of State must by regulations made by statutory instrument make provision to ensure that the National Health Service Pension Schemes reimburse their members for pension tax charges to the extent necessary to fulfil the objective of subsection (2).(2) The objective of this subsection is that in any tax year, for a member of the National Health Service Pension Schemes, the member’s income less annual allowance pension tax charges is not smaller if the member’s income is greater.(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
It has not yet technically been moved, and you are now moving it. Perhaps I should clarify for the Committee that where there is a group of amendments being debated together, only the first amendment is moved. If a noble Lord wishes to move an amendment, it has to come in its numerical order. The noble Lord was not moving his amendment, he was speaking to it.
I beg to move Amendment 86. In response to the Minister, I think we will need to have some kind of meeting after 11 March, which may involve some of the parties who are very anxious about this. I hope the Minister will take away that thought and get back to me, and to others, when he has had time to consider.
Amendment 86 withdrawn.
87: After Clause 128, insert the following new Clause—
“Automatic enrolment age
In section 3(1)(a) of the Pensions Act 2008, for “22” substitute “18”.”
My Lords, I have three amendments in this group. Amendments 87 and 88 relate to auto-enrolment to reduce the lower age limit to 18 and introduce a review of auto-enrolment which could also examine the possibility of removing the lower earnings limit.
As many noble Lords have said, the success of auto-enrolment is clear, with 87% of eligible employees participating in a workplace pension in 2018. However, by reducing the lower age limit to 18 and removing the lower earnings limit, a further £2.5 billion could be added to savings.
There would also be advantages for younger people in starting to save for pensions earlier in their working lives. It is estimated that the average 18 year-old will end up with a pension pot at retirement around £18,000 lower if they have to wait until 22 to be automatically enrolled. Given that we want people to start saving for a pension as soon as possible, an age limit of 22 seems increasingly hard to defend. Even employers would generally have a simpler system were they to enrol everyone, rather than having different rules for those above and below different age thresholds.
Moreover, further extending the coverage of auto-enrolment by reducing the earning threshold to the national insurance primary threshold would bring 480,000 people, mostly women, into pension-saving. It would also help to improve the gender pensions gap, which is the subject of Amendment 96 in the same group and a growing matter of concern. A woman aged 65 has one-fifth of a 65 year-old man’s pension.
Private pension schemes seem to be the main reason for the gender gap, placing women at a disadvantage, mainly due to domestic roles and lower pay. Among 65 to 74 year-olds, median private pension wealth is £164,700 for men and £17,300 for women, who have just over 10% of the private pension wealth of men. Among the population as a whole, women’s median pension wealth is £4,300, less than a quarter of the £19,800 held by men.
Although auto-enrolled private pensions include all employers, they exclude low-paid employees. Like other private pensions, they make no allowance for periods of caring, hence they perpetuate further the pensions gender gap. New modelling has shown that a family carer top-up in an auto-enrolled pension would substantially boost women’s private pension wealth. Also, the suggestion of a voluntary earnings-related state pension addition—a fully portable auto-enrolled option that allows carer credits—would be simpler and would better meet women’s need for extra pension savings. Amendment 96 provides the opportunity for an early review of issues affecting the pensions gender gap in CMP schemes.
I support the amendments in the group in the name of the noble Baroness, Lady Drake, which address similar and related issues. I beg to move.
My Lords, Amendment 95 in this group is in my name. It seeks to press the Minister to make three important changes to the current auto-enrolment scheme—there are some overlapping issues in this. The changes are: to remove the threshold requirement for earnings over £10,000 to be auto-enrolled; to remove the qualifying earnings deduction; and to extend the threshold down to the age of 18 for workers. As NOW: Pensions points out, these would be positive steps in helping to narrow the pensions gender gap and would be a significant step in boosting participation in pension saving. This should be uncontroversial, as it goes with the flavour of the deliberations of the 2017 automatic enrolment review.
However, on timing, the Government’s ambition is to phase in the abolition of the LEL, with broader changes to the framework, until the mid-2020s. We suggest that this is a weak ambition and urge the Government to reconsider. We recognise that the changes cannot all happen overnight, but the longer we wait, the more difficulty there will be in getting younger people into the savings habit. Abolition of the LEL and making contributions payable from the first £1 of earnings will help to build financial resilience. If implemented, these measures would eventually—I stress “eventually”—bring an additional 910,000 workers into auto-enrolment with, as we have heard, an additional £3.8 billion of pension savings. It would be a good first step in addressing the pensions gender gap.
My Lords, I shall speak to Amendments 90 and 91, which carry further the spirit of Amendment 96, which was tabled by the noble Baroness, Lady Janke. My amendments call on the Secretary of State, within six months of the passage of the Bill, to conduct two reviews: on how legislation could provide for people to receive a contribution towards auto-enrolment pension savings when they are relevant carers—what is now popularly called the carers’ top up—and on the sex equality impacts of auto-enrolment in workplace schemes and how legislation and policy could correct any inequalities identified.
I start by giving recognition to the DWP and the Pensions Regulator for the successful rollout of auto-enrolment. It is true that many more people, including women, are now saving, but various sources of data evidence show a persisting gender pensions gap. The message, whatever the source of the data, is the same. The gap arises from design features in the pension system and as a consequence of the systemic problems that too many women and carers face. In summary, carers are subject to a financial penalty in their income and pension because they are undertaking caring responsibilities, which is reinforced by stereotyping, cultural norms and employer behaviour.
Some newly published research on pensions by the Pensions Policy Institute, which was sponsored by the master trust Now: Pensions, puts the case for further reforms and reveals that on average, women have 55% lower pension income than men. The average annual private pension income for men aged 55 plus is £8,620; for women, it is £3,920—a considerable gap. Despite the record number of women in employment—now 72.4%—many will reach retirement age with significantly less. The figures vary, but they are in the same ballpark of £100,000 less saved than men. Women are more likely to work part-time or take time out of work while caring for children or, further down the line, to care for elderly or ill relatives, leaving them with interrupted pension contributions and limited earnings opportunities. Inequalities experienced during working-age life deliver lower incomes in retirement. Even when women work full-time, they still, on average, earn almost £6,000 less than men.
There are compelling figures here: 36% of women in the labour force work part-time. Of the 13.4 million employed women in the UK, around 3 million—23%—fall below the qualifying earnings threshold of £10,000 in any given job to get access to the benefits of auto-enrolment. Only about 37% of the population eligible for auto-enrolment are women.
The noble Baroness, Lady Altmann, is campaigning on how the tax system disadvantages a significant number of low-paid women and men, consequently reducing their pension pots. Millions of people at some point in their lives will have given up work or worked part-time to care, most of them being women. Carers’ savings pots are not only smaller, but evidence shows they are often used to cover the cost of the caring they are undertaking. The economic contribution of carers is still insufficiently recognised in UK public policy.
We need women to have children. If they did not, the economic consequences would soon become apparent. We need carers to take responsibility for kinship children, saving the taxpayer considerable cost. If carers did not look after their elderly or disabled relatives, the health and social care cost borne by the state would rise exponentially. In fact, Carers UK estimates that the economic value of the contribution made by carers in the UK is £132 billion a year.
Caring responsibilities impact carers’ participation in the labour market, but they also damage their long-term earnings potential—it just carries on through. It is estimated that for each year out of employment, the hourly wages of women decrease by approximately 2% for women with A-levels or above, and 4% for women with fewer qualifications. Amendment 90 is directed at a reform whereby a carer’s financial credit is paid through the social security system towards their private pension. I will take a little time on this because there is quite a big community out there which believes that this is an important issue and really wants Parliament to hear its strength of feeling on it.
Prior to the introduction of the flat-rate new state pension in 2016, carers were credited with entitlements in both the first-tier basic state pension and the second-tier state earnings-related pension. However, now that the earnings-related system has transferred out of the state to the workplace pension provision through auto-enrolment, that second-tier carer’s pension has been lost, It has just gone; it sort of fell through the crack in the totality of reforms. We had a hard-fought victory for women to secure the public policy principle that caring was an economic contribution for which pension credits were given in both tiers of the pension system—the basic tier and the earnings-related tier. Until that principle was restored, carers had been relatively disadvantaged, adding to the pensions gap. I am a bit reluctant to start in 1902, but if we start with the fight to get women these carer’s credits in both the pension systems, when the earnings-related system was introduced in 1975, something called the home responsibilities protection was introduced, It was not as good as a full carer’s credit but it was a start, although it applied only to the basic state pension. Then in the Conservatives’ Social Security Act 1986 they planned to extend that home responsibilities protection to the second-tier earnings-related pension but they never laid the regulation, so it never happened.
Rowing forward, we had the Child Support, Pensions and Social Security Act 2000, which introduced the second state pension to replace the existing SERPS earning-related element. It provided for carer’s credit for the second earnings-related pension in addition to the state pension. That was a victory. A lot of hard work went into winning that principle, and it applied to carers who looked after a disabled person for more than 35 hours a week or a child under six, but still people argued that it should be improved again beyond that. In the Pensions Act 2007, which, importantly, brought in a major part of the state and auto-enrolment reforms, carer’s credits and how they operated for the basic state pension and the earnings-related element were improved considerably for carers of children up to the age of 12 and the qualifying threshold for carer’s credits for caring for disabled people was lowered to 20 hours.
Those principles, that you credit carers because it is an economic activity—it is a real contribution to the economy—and that you do it in both the basic state pension and the earnings-related pension, were a victory that people thought they had banked, but suddenly, as a consequence of the reforms, that crediting is only in the basic state pension—it no longer exists through auto-enrolment and workplace pensions. The Fawcett Society, along with an increasing number of other organisations—there is quite a build-up of consensus around this—supports the introduction of a carers’ top-up, re-establishing the principle that people thought had been achieved and consolidated in 2007.
A seminal report from Insuring Women’s Futures, the product of a voluntary market-led programme under the Chartered Insurance Institute, looked at improving women’s financial resilience. It has brought in a range of people—business leaders, policy experts, regulation experts, academics and so on—and looks at the root causes of women’s lack of financial resilience.
I am probably using a lot of words to say it, but the report basically says that more needs to be done to allow all women access to pensions, to support women in attaining an adequate pension—reflecting their whole contribution to society and the economy—and to allow them to enjoy pensions parity in the workplace. It also says that the complexity of pensions, together with the wider financial risks in life that have an impact on women’s pensions journey, means that women need differentiated support and guidance at moments that matter, such as when they step out from or step down in their engagement with the labour market because they are doing the economically important job of caring.
Much was achieved by auto-enrolment—it is tempting to say that I would say that—and the Government were right to focus their energies on its successful implementation. I never argued with a Conservative Minister who said, “That is the priority and that is what we must do”; that was right. However, this gap in the pension position of many women relative to men persists, and there is a growing consensus—it is not just a few arbitrary voices—saying that the issue needs fresh attention.
A principle embedded in the reform of state and private pensions is that women should accrue retirement income in their own right. That is reflected in the fact that, since 2016, women no longer accrue state pension rights through their spouse’s entitlement and that, in a DC world and with pension freedoms, women’s hopes of depending on their partner’s accrued long-term savings are much weaker. The environmental factors shout out that the Government have been successful in consolidating auto-enrolment. However, this is an area of outstanding weakness and needs a new look because, in summary, women make a huge economic contribution by caring, for which they face financial penalties. There is an expectation that they will accrue pensions in their own right, but the support given to them to achieve that still has significant weaknesses.
My amendment and that of the noble Baroness, Lady Janke, ask the Government to review and report on the nature of the pensions gap and on further measures to address it, because the demographics clearly show that the one thing that the state depends on is that women will be carers—even more so going forward. However, as a consequence, they end up with reduced financial resilience when they come to retirement.
I am conscious of there being competing issues on Report; there are some very important issues in this Bill that noble Lords wish to return to. I am trying to take that into account. There is, however, a growing consensus. It is not aggressive; it is just saying—as I saw when I ran through the history of how we built up the carer’s credit—that the Government need to give this attention. There is consolidated auto-enrolment and a range of areas where the Government are reviewing what they can do, but they have not put centre stage how efficiently this is working for carers; they need to look at that.
Again, conscious of the competing demands on Report, I urge the Government to respond to the noble Baroness, Lady Janke, and myself as positively as they can to show those communities that are building up together—the gender alliance can be quite formidable when it gets truly organised—that there is a responsiveness that says, “Yes, we will review these issues.” I have loads of emails that say, “I am so glad you are raising this”, and, “Say this and say that.” I have probably overindulged and not covered half the list of things that people want to say. They will, however, be listening to the Government’s response because they want the Government at least to accept that they should give some attention to this issue again.
My Lords, I want to ask a few questions on the back of that. I thank my noble friend Lady Drake and the noble Baroness, Lady Janke, for raising these issues. It is good to hear some attention being given to the fact that we have a significant problem about women and pensions. I would have liked to see the Bill take the opportunity to do something for the women born in 1950s who lost out so much when the state pension age was raised so sharply. Given that it has not done that, at least the calls for review may give an opportunity to look at the wider range of issues.
The statistics we have heard are really quite stark. If there is that huge a gap in pension wealth between men and women, the situation will only get worse. It is clearly something that the Government need to do something about.
I want to pick up on a couple of specifics. One is the issue of people with multiple jobs below the earnings threshold. This is the point at which I miss most acutely my friend Lady Hollis of Heigham, who raised this at any given opportunity. I feel that her memory is forcing me to do so now, otherwise I could not go back to my office and sit down with any peace. I ask the Minister to comment on that. We see people with multiple jobs—many are women, of course—none of whom make the threshold but who would be over the threshold if their incomes were added up, not getting into auto-enrolment. I worry that this group will keep rising as a result of part-time working and zero-hours contracts. Even the DWP, for example, encourages those on universal credit to take extra jobs to top up their hours or income. What are the Government doing about this? Do they have a sense of the scale of the problem and the direction of travel?
Secondly, I want to say a word about my noble friend’s case on carers. Clearly, women are more likely to work part-time because of caring responsibilities. That is a clear issue for public policy. A society needs women’s reproductive capabilities and their caring work. Women, in turn, deserve to be able to live adequately in retirement. I was delighted to hear my noble friend detail how we got here, not just because I probably have more of an appetite for social security detail than is strictly socially acceptable. If we do not take the time to work out how we got here, we will lose this in future. Those rights were hard-won. It took a long time, step by step, to get the caring responsibilities of women recognised in all parts of the state pension system; then they somehow got lost in the Government’s reforms. I am sure that that was not the intention and I have no doubt that the Government will come back and say, “Yes, but people will get these bigger amounts and more of them will get a full pension”, but that makes no difference. One would get those whether one was a carer or not. They have still lost any recognition of those caring responsibilities in the second state pension. Have the Government looked at the idea of a carer’s top-up, which has been around for a while? If so, what is their response to it? If they do not like it, what is their proposal for addressing this issue?
On Monday, we discussed in Committee Amendment 78 in the name of the noble Baroness, Lady Altmann. It recommended that a member of a scheme should not be allowed to use the pension freedoms to transfer out without the consent of his or her spouse or civil partner. I asked whether the Minister would go away, talk to the department, take some advice and return to it during today’s debate, which she kindly agreed to do. Can the Minister give us a reaction? Has the department established that there is an issue, and what is it doing about it? That would be really helpful.
My noble friend Lady Drake said the gender pay gap will not close until 2050 and pension parity will therefore not be reached until something like 2100. We just cannot wait that long. This is a matter of public policy, economics and societal need, but it is also a basic issue of justice. What are the Government going to do about it?
My Lords, the amendments tabled in the names of the noble Baronesses, Lady Janke and Lady Drake, and the noble Lord, Lord McKenzie, all concern automatic enrolment into workplace pensions.
Amendment 87 would lower from 22 to 18 the minimum age at which a qualifying worker would be eligible to be automatically enrolled by making a change to the Pensions Act 2008.
Amendment 88 would require the Secretary of State to lay a report on the effectiveness of our pension reforms within six months of this Bill becoming law. That review would mandate government to consider the minimum age at which qualifying workers must be automatically enrolled, the minimum level of pension contributions and whether existing legislation offers sufficient opportunity for low-paid workers to save for retirement. The Secretary of State would then have to make a recommendation about whether to bring forward new legislation in the light of its findings.
Amendment 95 would make changes to the criteria for a qualifying worker in automatic enrolment, known as a jobholder. These would lower the minimum age for a worker to be automatically enrolled from 22 to 18, abolish the £10,000 automatic enrolment trigger and make pension contributions payable from the first £1 of earnings.
Perhaps I may begin with the proposed changes to the automatic enrolment criteria. The amendment of the noble Lord, Lord McKenzie, would abolish the £10,000 automatic enrolment trigger. The Government review the operation of the trigger annually under the statutory automatic enrolment thresholds review. That approach means that a range of factors can be assessed, including affordability for employers and whether it pays to save for individuals. Since 2014-15, we have frozen the trigger at £10,000, which has expanded coverage each year due to wage growth. In the tax year 2020-21, this will see an extra 80,000 people brought into pension saving, of whom around three-quarters will be women. This is surely one policy area where we should aim to ensure that we proceed on the basis of sound evidence. We do not have evidence at this time that would support the abolition of the trigger. So, I am afraid that the Government cannot support this amendment.
Turning to the amendments in the names of the noble Baroness, Lady Janke, and the noble Lord, Lord McKenzie, which would reduce the minimum age to 18 and require pension contributions to be paid from the first £1 of earnings, the Government’s 2017 review of automatic enrolment—Maintaining the Momentum —has already set out our next steps in this area. The core proposals are a reduction in the minimum age for being automatically enrolled to 18 and the removal of the automatic enrolment lower earnings limit.
Our review involved extensive engagement with interested parties, including consultation, and was supported by an expert advisory group. Its conclusions were robust and remain correct. However, we have also been clear that these ambitions must be subject to learning from the contribution increases and finding the right approach to implementation. The timetable cannot be forced without risking both the consensus that we have achieved and the very significant policy achievements that have, rightly, been lauded across this House. Therefore, again, the Government cannot support these amendments.
I turn now to Amendments 90 and 91, tabled by the noble Baroness, Lady Drake, and Amendment 96, tabled by the noble Baroness, Lady Janke. They relate to the gender pensions gap and automatic enrolment. Since the introduction of automatic enrolment, workplace pension participation for all women employed full-time in the private sector— not only those eligible for automatic enrolment—has increased from 35% in 2012 to 83% in 2019. This is now the same as the participation rate for men, compared with 2012 when the participation rate for men was six percentage points higher. Our aim remains to increase the level of retirement saving across all groups. The 2017 review ambitions strengthen the framework of workplace pension saving for lower-paid workers, many of whom are women working part-time. As I have already made clear about the implementation, we will remain guided by evidence.
Amendment 90 would require the Secretary of State to undertake a review within six months of passing the Bill. The review would consider how to legislate to provide automatic enrolment contributions to people with caring responsibilities as parents or carers, with reference to a target group.
The new state pension system—introduced for people who reached state pension age from 6 April 2016 onwards—took forward the existing national insurance crediting arrangements. These included the credits brought into effect by Section 23A of the Social Security Contributions and Benefits Act 1992. The majority of people providing care and those who build a qualifying year for their state pension through the carer’s credit are women. The design of the new state pension means that, on average, women, those in lower-paid work and self-employed people receive higher outcomes than under the previous system.
More than 3 million women stand to receive an average of £550 more per year by 2030 as a result of the recent reforms. Women benefit most from the new state pension. Average weekly state pension payments for women are £152.44 under the new system, compared with £135.24 under the previous system. Outcomes are projected to equalise with those for men more than a decade earlier than they would have done under the previous system.
Under the system that operated from 2010 to 2016, people who were caring for more than 20 hours a week could claim the carer’s credit for additional state pension in addition to building qualifying years of the state pension. The full rate of the new state pension is more than £40 a week higher than the full basic state pension. As a result, unless someone had received carer’s credits for the majority of the 35 years of national insurance needed for the state pension, it is unlikely that they would have been in a better position than they will be now under the new state pension.
A key objective of the new state pension was to increase outcomes for women and lower-paid earners, accelerating the equalisation of state pension outcomes for men and women. The new state pension is successfully achieving these objectives. The settlement made in 2016 is building a clearer, simpler foundation for people’s private pension saving and we do not intend to reopen it.
I understand that the noble Baroness, Lady Drake, is concerned that parents and carers who are not working will miss out on automatic enrolment. Most parents and carers will work before or after periods of caring, or will combine part-time work with caring. The introduction of automatic enrolment has helped workers to build on the foundation of the state pension, while implementation of the 2017 review measures will enable them to build up more savings when they are working, improving their financial resilience in retirement. The amount being saved would be transformative: a national living wage earner with a 10-year career break could see an 88% increase in their pot size at retirement.
Amendments 91 and 96 would require the Secretary of State to conduct a review within six months of the Bill becoming law, concerning the sex equality impacts of the current framework. I always read amendments carefully but, if I may speak on a slightly lighter note, Amendment 91—tabled by the noble Baroness, Lady Drake—shows how important it is to read to the end of every sentence. When I first looked at it, I thought that it sought to ensure that the Secretary of State conducts a review of differences between men and women, which, it struck me, could be rather a lengthy exercise—but that is not the case at all. If one reads the amendment in full, it is a model of clarity in referring to a number of specified groups and I want to be serious in addressing it.
Amendment 91 would require the Secretary of State to make recommendations on how legislation and policy could correct any inequalities in automatic enrolment. Amendment 96 relates to the impact of public policy regarding pension schemes on women and the action being taken by government to close the pensions gap between men and women, with recommendations for possible further legislation.
The Government already carry out and publish a range of analysis and evaluation in relation to these matters, and benefit from valuable external evidence. The department currently evaluates the gender impact of changes to automatic enrolment policy on participation—in our annual thresholds review, for example, where this year we estimated that three-quarters of the employees made eligible by the freezing of the trigger were women. We measure and publish statistics on participation rates by gender. We carry out regular monitoring of the rates of stopping saving by gender. We also draw on a wide range of evidence across and outside government on the gender pensions gap, while working closely with the Government Equalities Office.
All that should, I hope, indicate to noble Lords that this is not a matter that we will just let drift and then monitor at some point in the future. We do so regularly as we go along, and in some detail. Outside of DWP’s evaluation of automatic enrolment—AE, if I may call it that—data and analysis of the gender pensions gap is produced from various sources across government. We will continue to draw on this evidence alongside our developing evaluation of AE, post phasing, to assess the impact of AE on the gender pensions gap.
The noble Baroness, Lady Drake, mentioned the need for differentiated support for women at the moments that matter. The noble Baroness, Lady Sherlock, asked, essentially, what more the Government are doing in this area. I refer in particular to the Government Equalities Office, which held a joint listening workshop with the Money and Pensions Service in the summer on women and personal finance. That fed into the development of the national financial well-being strategy, which was launched in January with gender as a cross-cutting lens. The Money and Pensions Service has set up challenge groups, including on gender and financial well-being, tasked with creating bold and innovative proposals. The Government Equalities Office will directly support the gender challenge group, feeding into the development of the action plan on women’s financial well-being.
We also need to address the main causes of the gender pensions gap, namely differences in working patterns and earnings between men and women. The Government remain committed to challenging gender stereotypes that result in women taking on a greater role in caring than men, and minimising the gender pay gap. Our gender equality road map, published in July, sets out how we will do this.
Alongside this, the Money and Pensions Service has made financial well-being for women a cross-cutting lens in its strategy for financial well-being; as I just mentioned, it has set up a challenge group. We continue to monitor the impact of private pensions reforms on women and we would welcome hearing a range of insights and perspectives from representatives of employees, employers, unions and consumers in addition to the pensions industry.
It would be very valuable to us if the noble Baronesses, Lady Drake and Lady Janke, continued to work with the Government in helping us to deliver on our strategy to tackle the important issue of the gender pensions gap; I am sorry, I do not mean to miss out the noble Baroness, Lady Sherlock, in that. With that in mind, I hope that the noble Baroness, Lady Janke, will feel able to withdraw her amendment at this stage.
I want to take the first opportunity to come back on this because I am conscious that a lot of people are interested in this debate.
I am a little disappointed that the major part of the Minister’s contribution was a bit of a push-back, saying that the Government are all over this and that this is fine when evidence for that is not there. He did become more conciliatory at the end; I hope that the department find a way to bring together an eclectic group of people.
I simply disagree with some of the things that the Minister said. In reference to the small pots, the DWP did a great deal of work on the earnings threshold. It was set at a much lower level based on the DWP’s work, though perhaps not under the current Administration. In the review that led to that threshold going up—originally, it would have gone up to as high as £12,500 if a stroppy group of Peers had not turned up every time automatic enrolment earnings threshold regulations came before the House; in the end, somebody waved the white flag and said, “Oh, freeze it, we can’t face that lot every year”—the reason given, which is on the record, is that if you take it lower than £10,000, it produces small pots, which are inefficient to the industry. Well, that is irrelevant. This is a piece of public policy for mass coverage. That is what made me so angry. It was not based on a gender analysis; it was based on inefficiency in the industry. I invite noble Lords to go back to the report that gave the reason for raising that earnings trigger. There is evidence there. It may be that more modelling or more debate about the behavioural impact of coming significantly below the trigger is needed, but that work was done by the DWP. It may have a different view now but its view a few years—perhaps 10 years—back presented the evidence in a different way.
I do not disagree with the Minister that automatic enrolment has had a real benefit for women—if they are in the eligible population. If they are not, they cannot be among the people gaining from the upside of auto-enrolment. Many carers are precisely the people who are not in the eligible population.
I entirely accept that for a lot of women, an absolute improvement arose as a result of the new state pension, but the pension gap—the pay gap—is about relativity. If you give a man a pay rise of £10 and you give a woman a rise of £5, you can stand up and assert, “The woman is £5 better off: let us celebrate!”. What you have missed is that the pay gap has increased, because the man got £10. The benefits of the single state pension improve the relative position of a lot of people, not just the low-paid but huge numbers of people right across the public sector in DB schemes and generous DC schemes who, for a most modest increase in their national insurance, got that improvement in the state second pension together with the benefits of auto-enrolment or their defined benefit pension system as well. Therefore the relative position of carers was disadvantaged. Yes, their absolute position over a certain period—or after a certain period, although that is not the case—has improved, but the relative relationship did not, because everybody had that benefit from the reform to the state second pension.
I do not want to dwell on that, but there is a community out there who, if I did not do them justice and push back, would say, “Jeannie, why did you just accept those arguments?” I take the Minister’s final remarks about working for the Government. There are groups out there in industry, employers, academics and gender groups who want to work this out with the Government. I hope that the Government can find a way fairly soon to bring together a working group, or whatever. There is a feeling, “How does one communicate to the Government the growing feeling on the gender pension gap?” I felt that I had to push back, because there was a slightly dismissive approach that there was no gender pension gap problem, and there is.
I hope that the noble Baroness will not go away with that impression. We are aware that there is a gap to be bridged. The key point I would ask her to reflect on is that, despite the desire to go faster in this area, there is a risk in doing so. We have learned lessons from the phased approach that we have already adopted. It was the right approach. The gradual approach brought everybody on side. We gathered evidence in the process; we are still gathering that evidence, and the evidence-based approach is the other watchword to bear in mind.
I will follow up a couple of questions that I asked the Minister: one was about mini-jobs, and I do not think that he responded to the other—I am sorry if I missed it—on the issue of spousal consent and pension freedom sharing. In Grand Committee on Monday, we were having a conversation about this. The Minister pushed back quite hard. I suggested that she go back to the department to establish whether there was a problem, and the noble Baroness, Lady Stedman-Scott said:
“The suggestion made by the noble Baroness, Lady Sherlock, is very helpful. I would be happy to do that before we come back to this on Wednesday”—[Official Report, 2/3/20; col. GC245.]
The reason I suggested that is that I knew we were going to have a debate on women’s pensions and therefore we could have it informed by some information. There is not much point in our having assurances if they do not happen. Is there anything to be said on that?
I understand from officials in the Ministry of Justice that there has been a relatively small number of cases where the pension scheme member has taken advantage of the pension freedoms to act in a way that frustrates the intention of an attachment order. However, I would like to establish what evidence there is of the scale of the wider problem, as outlined by my noble friend Lady Altmann and the noble Baroness, Lady Drake, in our debate on Monday, before deciding on the appropriate government response. I can tell the noble Baroness that my officials will work with others across government to gather the available evidence.
I thank the Minister for his assurances and for the information he gave. I am sure that the Government want to pursue the evidence-based approach, but the actual situation is very hard for many women at this moment. I welcome his offer to work with the Government on this. As the noble Baroness, Lady Drake, said, many groups will be interested in doing so; I hope that we can engage them in positive working on this issue.
A much larger proportion of those now in pensioner poverty are women because their caring responsibilities were never represented in the past. I feel that there has to be a recognition of the current situation while agreeing that we must move forward and take people with us on this.
On the amendments in the name of the noble Baroness, Lady Altmann, it is not only a question of spousal consent to an attachment order. It is often not possible to make a pension settlement because it takes place before the process reaches that stage. Spousal consent is essential because, as others have said, once the money has gone, it is extremely difficult to recover it. The ABI has written a briefing on divorce and pensions; I recommend it to the Government. Pensions in divorce is another issue that is extremely important to women.
Again, I thank the Minister for his response. I beg leave to withdraw the amendment.
Amendment 87 withdrawn.
Amendment 88 not moved.
My Lords, I understand that Amendment 89 has already been debated even though it did not appear on the groupings.
Amendments 89 to 92 not moved.
93: After Clause 128, insert the following new Clause—
“Suitability of pension schemes for automatic enrolment
(1) The Secretary of State must by regulations made by statutory instrument make provision to require that, where an employer makes arrangements by which a jobholder to whom section 3 of the Pensions Act 2008 applies, or a worker to whom section 9 of that Act applies, becomes an active member of an automatic enrolment or other pension scheme, the employer and the trustees, managers and administrators of the scheme have ensured that it is suitable for low-paid jobholders or entitled workers such that they are treated fairly in connection with their contributions. (2) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment aims to ensure that employers, trustees, managers and administrators have assessed the scheme they use for auto-enrolment to ascertain that it treats low paid staff fairly and does not force them to pay additional contributions to replace tax relief they have lost.
My Lords, noble Lords will understand that I believe that this amendment is vital to the ongoing success of automatic enrolment.
I add my congratulations to the noble Baroness, Lady Drake, for the work that she did with the original Pensions Commission, which set up automatic enrolment. It has been a success. My amendment seeks to build on auto-enrolment by introducing protections particularly for low earners—at least 70% of whom are women—and provides that the Secretary of State must make regulations that require the trustees, managers, administrators and employers of these workplace pension schemes to ensure that the scheme is suitable for low earners and treats them fairly.
I seek to introduce this into the Bill because, currently, more than 1 million women who are earning below the personal tax threshold, which is around £12,500 in any one job, are required to pay—unwittingly and unknowingly in probably all cases—25% more for their pension because their employer has chosen a particular pension scheme that is not suitable for them because it charges them so much extra.
The noble Lord, Lord McKenzie, referred to addressing pensioner poverty and undersaving. Clearly, the fact that the lowest earners in the country have an extra 25% added to the cost of their pension, which has to come out of their pay, makes them more likely to have affordability issues and could, potentially, lead to them opting out of the pension because of the extra costs. These are, generally speaking, the people who most need help to build up a pension for later life and who are at greater risk of pensioner poverty. That is what the auto-enrolment system was meant to address, given that we have the lowest state pension in the developed world.
Therefore, there is an important lacuna in the automatic enrolment framework, in that an employer merely has to set up a pension scheme without having to decide, investigate or even consider whether the scheme is suitable for its staff. I am particularly concerned about low earners. The types of scheme that they are being put into are better for higher earners and higher-rate taxpayers—and better for the scheme providers—because they bring more money into the scheme. For low earners, however, there is a significant issue.
There is understandable concern about putting too much burden on employers. People say, “It is bad enough that they have to set up pension schemes and pay into them for their staff even if they employ only one person, so let us make it easy for them.” I accept that, but a social injustice in the current system has worsened: it was not such a problem before the changes in personal tax thresholds. I have been trying to find a resolution for it for several years and nothing has changed.
I felt, therefore, that this Bill might provide the opportunity to place such a requirement on employers. I have been working with an industry group, the Net Pay Action Group, which is attempting to persuade the Treasury to ensure that Her Majesty’s Revenue & Customs uses the annual reconciliation of individuals’ PAYE data to identify low-income workers making pension contributions under the net pay scheme and to provide tax relief equivalent to what they would have received in another scheme.
The current problem is that, if their employer uses one of the master trusts that mostly operate a net pay arrangement, as it is called, low earners have to pay their own tax relief and cannot in any circumstances reclaim it from the Treasury. This is about £150 a year, and one of the arguments used to justify it is that it is not a lot of money. Frankly, however, to a woman who is a low earner, £150 is not nothing. Even £50 a year is not nothing. It is money that they would have if their employer had used a scheme like NEST, or a scheme that operates a relief-at-source system, where they get the tax relief that they are entitled to automatically.
Even if there was a resolution—there is no sign of that at the moment—every month, these workers are being charged an extra amount that is going into their pension scheme, unbeknown to them. The sooner we sort this out, the better. Notwithstanding any resolution, there should be an obligation on an employer that is putting its staff into a pension scheme—given that staff cannot control which scheme their employer uses—to set up a scheme that is suitable, specifically for low earners but one could expand that more broadly.
I hope, therefore, that noble Lords will recognise that this would be a way to improve the operation of auto-enrolment. For example, if the employer has one or two low earners but most of the staff are highly paid and it wants to use a net pay scheme, it would be fine if the employer paid those few extra pounds into the scheme on behalf of its low-paid staff. High earners do not have to reclaim the higher-rate relief in one of these schemes and it may be considered more convenient for those high earners, but the problem is for those earning below the personal tax threshold. Nobody is compensating them for the fact that they are being charged 25% too much. We have capped charges on default funds in pension schemes at 0.75% a year, yet this is 250 basis points that these women are paying extra for no good reason. They are not getting a better pension; they are getting the same as the others.
I would be grateful if my noble friend could help me to understand whether the Government might consider accepting this or whether they have other plans to address urgently the problem of low-earning women paying too much for their pensions in their employer’s scheme, in what I genuinely believe is a very successful auto-enrolment system that I want to see thrive. Unfortunately, this has the potential to damage confidence in auto-enrolment significantly if more and more women are affected; as I say, that number is probably well over 1 million now. I beg to move.
My Lords, I signed this amendment and I do not think there is a great deal to add to what the noble Baroness, Lady Altmann, has said. I am sure we are all familiar with the phrase that two wrongs do not make a right. As has been explained, this is one of those instances in which two rights have ended up making a wrong, in that auto-enrolment and raising the tax thresholds were right but have resulted in more and more people falling into this trap. If we are to believe all the things we read in the newspapers about the Budget, it may be that more right things will be done, in terms of tax thresholds, that will then trap more people in this wrong of paying more than they should for their pension. These people would be better off if they were not in the scheme but in a private pension scheme because there would be mechanisms for them to get that tax relief.
The problem could be adjusted through the tax system because it knows who they are. There are various ways in which it could be addressed. The noble Baroness, Lady Altmann, has put forward one in which it is up to employers to seek out the solution. If that is regarded as too onerous, something else must be done because this really is very bad, once again hitting the people who always seem to be at the rough end of every deal and are predominantly women. I am not quite sure how it is taken into account in universal credit—whether it asks, “Are you paying more for your pension than you should?”—but I would not mind betting that many of them will be the same people who suffer at every twist and turn. I therefore strongly support this amendment.
My Lords, I, too, support this amendment. We should congratulate the noble Baroness, Lady Altmann, on the diligence with which she has persisted on this matter for quite a long while. As she hinted, she was responsible for convening an industry group that spent a lot of time digging into this to make sure its focus was right.
The reality is clear. There are two systems giving tax relief and no reason in principle why they should not both deliver the same result. One does not for low earners at the moment. Which of the two systems you are in depends on your employer’s choice. That simply cannot be right. As the noble Baroness said, there are ways of dealing with this. I understand that the Treasury has set its face against that to date. Of course, for the Treasury, the downside is that providing a bit more tax relief means having a little less revenue. However, we are talking about the lowest paid, who are being disadvantaged by this. It is about time that this was brought to a halt.
My Lords, I am grateful to my noble friend Lady Altmann for her amendment. I am well aware that she is a passionate and long-standing campaigner on the issue of lower-paid workers automatically enrolled into a workplace pension who may not benefit as much as other lower-paid workers for their pension saving.
As my noble friend will know—I hope she will not mind my saying this en passant—pensions tax relief is a matter for the Treasury, with the differing treatment of people in net pay arrangements and relief at source pension schemes determined by the Finance Act 2004 which, strictly speaking, is outside the scope of the legislation before us. That does not prevent me giving her as full an answer as I can.
Automatic enrolment legislation defines which qualifying workers are to be put into workplace pensions by reference to their age, earnings level and their being working or ordinarily working in the UK. I appreciate that this is essentially a probing amendment and that the precise wording is of secondary importance, but its reference to the low paid is not a definition recognised in the Pensions Act 2008. It would make it very complex and burdensome for employers accurately to identify the group to be covered by the proposed regulation-making powers.
Automatic enrolment has always sought to balance its core aim of helping working people build up their retirement savings with an implementation approach that recognises the costs and administrative burdens that will inevitably fall on employers. We are mindful that those duties must be proportionate and restricted to the minimum necessary to achieve our policy objectives. That is why pension scheme choice under automatic enrolment is reserved to the employer, who is required to use a scheme that meets minimum quality standards set out in legislation. Tax relief is only one of the factors that an employer should be considering when choosing a scheme for its employees, alongside whether it will accept all its staff, how much it will cost for the employer to administer and whether it will work with the existing payroll systems.
The employer’s decision will be informed by detailed guidance provided by the Pensions Regulator via its automatic enrolment compliance website, including information about the tax implications of different types of scheme. We should remind ourselves that there is guidance on the Pensions Regulator’s website to help employers understand the impact of scheme choice on lower earners below the personal allowance. I am well aware of how much assistance my noble friend gave on this when she was Pensions Minister.
Consequently, the current legislative framework is not set up to allow government to impose broad, undefined requirements on pension scheme trustees, managers or administrators in the way proposed by the amendment. Employers have duties under automatic enrolment, and they select a pension provider from the marketplace, based on their legal obligations towards qualifying workers and the commercial needs of the organisation.
The suitability of an automatic enrolment scheme is determined primarily through statutory quality requirements. Many employers will choose a master trust scheme, which is subject to an additional regulatory framework. All automatic enrolment schemes are registered pension schemes and their members are further protected by the broader legislative framework for occupational and personal pension schemes.
I understand my noble friend’s desire to see resolution of this issue and I know that she has raised it with the Treasury. For the reasons I have given, I am afraid that I cannot accept her amendment, but I hope she will welcome the new Government’s manifesto commitment to carry out a comprehensive review into how best to fix this complex issue. The Government believe this review is the right way to move forward, and Treasury colleagues will make announcements on the next steps in due course. My noble friend is always very supportive and constructive in her approach to policy issues. I hope she will therefore help us to fulfil our intention of identifying how best to address the operation of pensions tax relief, both as we proceed with the comprehensive review and, in the first instance, if I may suggest, by withdrawing this amendment.
I thank my noble friend for his response. I welcomed, very much, the commitment in the manifesto to look at this issue. However, I hope he will forgive me if I suggest that this is not necessarily a matter just for the Treasury. Tax relief is, of course, a matter for the Treasury but the duties of schemes, trustees, IGCs and employers is a matter for the Pensions Regulator. Also, auto-enrolment falls under the Department for Work and Pensions. Might it therefore be possible—I humbly request this of my noble friend—to go back to the department to consider whether this issue of suitability could go broader than just tax relief? It could include all sorts of other areas: for example, an employer might choose a scheme that the majority of the workforce might not like to be in, but there is no mechanism for them not to be put into it.
If that is considered too difficult, I certainly take the point on low earners. This is a probing amendment and I would, for example, be happy to specify those earning below the personal tax threshold—that is really what we are talking about and it could be addressed. I understand and recognise that there is guidance for employers on the Pensions Regulator’s website but the requirements for master trust authorisation, or the requirements put on IGCs and trustees of these pension schemes, do not include taking any concern for the extra costs imposed on those earning below the personal tax threshold. One wonders how value for money could be confirmed by those running pension schemes if many people in those schemes pay 25% more than they would if they were in an alternative scheme. There is a requirement for a value-for-money assessment but it does not seem to take account of these low-earning women.
I would be delighted to help the Government fulfil their aim of addressing this issue. Notwithstanding that, I would be grateful if my noble friend might consider whether there should be some extra duty. If it is not just on employers—I take that point and I mentioned it in moving the amendment—at the very least the trustees, the IGCs and the regulator know what is going on, even if in most cases the small employer does not. I have seen the wording on the Pensions Regulator’s website; it is not really clear, if you are someone who does not know what this is all about, that actually it means that because of the scheme you have chosen, your low earners will pay 25% more than they otherwise would.
Whether or not we can address this in the Bill—I hope that maybe we can—I am grateful to noble Lords who have supported the amendment. I am also grateful to my noble friends the Ministers, and the department, for having taken the time to continue to discuss the issue. I beg leave to withdraw the amendment.
I heard the Minister’s reply, which seemed a recipe for no action—not this year or next. Given all the hard work that has gone into developing thoughts on this, that does not seem fair. If we are saying that the legislation—or the regulation—is not fit for purpose as it is, why do we not change it? Whatever happened to taking back control?
I promise that nothing I said was intended as a recipe for no action. The problems that my noble friend articulated well relates to how we solve this problem, not whether we are committed to doing so. Unfortunately, it does not admit of a straightforward answer. If it did, we would have solved it long ago.
Amendment 93 withdrawn.
94: After Clause 128, insert the following new Clause—
“Multi-employer pensions scheme
The trustees of a multi-employer pension scheme may cancel a debt which became due from a departing employer before the coming into force of this section in relation to the scheme under section 75 of the Pensions Act 1995 if—(a) failure to pay the debt would not materially reduce the scheme’s assets relative to the estimated debt in relation to the scheme,(b) the majority of the debt relates to liabilities in respect of members working for employers no longer participating in the scheme,(c) the employer has not done an act or engaged in a course of conduct that detrimentally affected in a material way the likelihood of accrued scheme benefits being received (whether the benefits are to be received as benefits under the scheme or otherwise),(d) at the time of the cessation of the employer’s participation in the scheme, the scheme was estimated to have sufficient and appropriate assets to cover its technical provisions and the employer had no reason to believe there was a significant scheme deficit,(e) the employer has been operating as an unincorporated business and the owner would face personal bankruptcy, or the employer has been operating as a small business which would become insolvent, if required to pay the debt,(f) the debt is below a de minimis threshold in relation to the size of the overall scheme liabilities, as estimated by the trustees or managers on advice of the scheme actuary as if the whole scheme had been winding up at the time the debt was treated as becoming due, and(g) the employer has always taken all reasonable steps to fund the scheme as demanded by the trustees before the employer cessation event.”
My Lords, perhaps I should apologise for taking the Committee’s time on issues that I feel have an opportunity to be resolved in the Bill. I hope that noble Lords will understand that I am doing this because I want to see pensions work better, and I care passionately about a system which I believe works really well in general. but there are areas that are causing significant problems which we may be able to address.
The issue at hand in this amendment is directly relevant to the Bill. It is about multi-employer pension schemes, where the current legislation has unintended consequences and causes significant damage in ways that it was never designed to do. There may be a way in which we can try to address that. I am not claiming that the wording of this probing amendment will fit the bill, as it were. However, in the plumbing multi-employer pension scheme—the one I have most experience of, but by no means the only one; there are a number of charity schemes as well—the trustees seem to be trying to force good employers into personal insolvency and homelessness to pay into the scheme the cost of buying annuities for workers who never worked for them. This is in a scheme which has always been said to be fully funded, with enough money to pay all its pensions: in the December 2019 employer update it was reported to be funded to 108%. It had an 8% surplus at its last measure. The scheme will not buy the annuities that these people’s homes will be taken away to pay for, while the employers have paid every penny of the contribution ever requested by its trustees.
In this pensions Bill we are dealing, quite rightly, with new measures for the Pensions Regulator to deal with recalcitrant employers, who may have deliberately decided—or the regulator may believe have deliberately decided—not to put enough money into the pension scheme. We are introducing measures which I have tried to build upon in my amendment, which gives reasons why the regulator may not impose a contribution notice, for example, on such a recalcitrant employer. I am trying to look at the conditions we might able to introduce in multi-employer schemes, which go back some time—for example, the ones I have looked at go back to the 1970s—and used to have 4,000 employers. Many of them have been allowed to leave or have failed. Now there are around 400 left. These are responsible for all the people who worked for those thousands of other employers, as well as the very few who worked for them.
I wonder whether we can find ways that mimic the easements for recalcitrant employers to salvage the situation for these often unincorporated businesses, such as partnerships which have been in a family for decades or very small companies. If the owner or the individual retires, they crystallise the Section 75 debt. If they try to pass the business to their son, they trigger the Section 75 debt. If they incorporated from a partnership to a company, they triggered the Section 75 debt but nobody ever told them. The size of the debt they owe is immaterial to the survival of the scheme. I am trying to see whether we can use a materiality test, a solvency test or a reasonableness test to deal with this unintended consequence of Section 75 debt, which had a strong and right purpose: if an employer was to walk away from a pension scheme, it needed to make sure that it had put enough money in to meet its promises to all its staff.
I have tried to introduce conditions through this amendment which would permit trustees not to collect the Section 75 debt. They are: if failing
“to pay the debt would not materially reduce the scheme’s assets relative to the estimated debt”;
“the majority of the debt”
owed by the employer is for orphan assets—workers who never worked for that employer, so the main employer could not try to use this provision; if the employer has never tried to avoid the debt or to damage funding; if
“at the time of the cessation”—
the Section 75 crystallisation—the scheme was fully funded on technical provisions; if the employer is unincorporated or a small business, and we may need to add partnerships, and faces personal bankruptcy or insolvency; and if the employer has always paid all the contributions asked for, then the trustees would explicitly be permitted not to collect the debt.
The total debt for the employers which I have seen suffering particularly from this is £7.2 million. That may sound a lot of money, but this scheme is worth well over £2 billion, so whether it collects that extra few million pounds will not make a difference to its solvency and survival in the long term. We seem to have lost sight of reasonableness. I hope we might define the circumstances tightly so that other employers cannot use this provision as a precedent. I completely understand concerns that we do not want it to be used as a precedent. The size of the debt is immaterial, relative to the solvency of the scheme.
I have deliberately worded Amendment 94 so that it follows new Section 58B(2) on page 91 of the Bill. Under that provision, the Section 75 debt or contribution notice will not have to be imposed. It says:
“A person commits an offence only if (a) the person does an act or engages in a course of conduct that detrimentally affects in a material way the likelihood of accrued scheme benefits being received”.
Clearly, in the case I described, in multi-employer schemes that test would not be met for imposition of the debt. The new section continues:
“(b) the person knew or ought to have known that the act or course of conduct would have that effect”.
These employers have paid everything that they were ever asked for and were always told that the scheme was fully funded, so they would never have known that there was a problem. The trustees of the scheme did not even try to collect Section 75 debt between 2005 and the past couple of years. The new section then says:
“(c) the person did not have a reasonable excuse for doing the act or engaging in the course of conduct”.
Again, if someone is paying everything that is due, the size of the debt is not material to the solvency of the scheme and the scheme is not buying annuities anyway, can we not inject some reasonableness? There are already easements but they do not meet these circumstances.
The trustees of the scheme seem to be afraid that they cannot help out these employers without a change in the legislation, which is what Amendment 94 seeks to deliver. It is a probing amendment and I would be grateful if the Minister and the department would further consider whether there are any ways in which this might be achieved. Some people have terminal cancer and less than a year to live; they face personal bankruptcy and destitution as a result of a debt that a large, recalcitrant employer would not be forced to pay as a result of the measures in this Bill. I beg to move.
My Lords, I have added my name to this amendment because the circumstances that have been outlined are distressing and there seems to be no easy way for the affected people to address them. If they were bigger and more powerful, it is certain that they would not be pursued—not least because the instructions for pursuit, if I can call them that, are that you have to be able to recover more than it costs you to do so. It would not take a great deal of litigation for that to be backed off from.
It is another example of how unfair it is when people who have run a business as a partnership, unincorporated, are at a disadvantage compared with those who take advantage of limited liability. You are not doing anything bad by putting yourself and your livelihood on the line. It may be that it has not been done in the way that it should have been in small practices, such as plumbing companies, but when you find yourself in this kind of situation—which you would not be in if you had been incorporated—it has always been difficult to see fairness in the law.
The noble Baroness, Lady Altmann, has produced a tightly composed amendment. I have studied it and it seems to fit the bill. Obviously, if someone can improve on it that would be fine. Otherwise, I do not see how there will be fairness for those who do not have equality of arms with the larger companies, which have sometimes been allowed to leave schemes without necessarily paying up as much as they should. In such cases, the burden falls on smaller firms. The trustees should have taken that into account long ago. If they have not, why should the burden fall on those who cannot find the means to take the matter to court? Basically, that is what this is about. A large employer in the scheme would fight the case and perhaps there would be claims for negligent behaviour for some of what has gone on. This solution avoids quite a lot of unpleasantness and untidiness that might otherwise be the only way. If there is any way that the Government can pursue this amendment, it would be a very good thing.
I thank my noble friend Lady Altmann for tabling this amendment and congratulate her on her tenacity in continuing her campaign to resolve this situation. If we were giving awards for tenacity, she would win, I am sure.
The Government understand the difficulties facing employers in these situations, especially where, in the past, they have taken all reasonable steps to fund the scheme as requested by the trustees. The amendment seeks to amend Section 75 of the Pensions Act 1995 to allow trustees further discretion to cancel a departing employer’s debt in certain circumstances. It raises a number of issues that I will address.
The effect of this amendment would be that every time it is applied, the employer covenant would be weakened, increasing the risk of thousands of members not getting their benefits in full. It is hard to envisage a scenario where trustees could agree to such an arrangement and still be compliant with their fiduciary duty to act in the best interests of scheme members. In particular, the proposals for a new de minimis threshold raise significant issues. Even if the threshold is set at a very low level, it could enable a large number of small employers to depart schemes without payment. The aggregate impact of this could be significant. Passing this level of debt on to employers who remain could make them insolvent.
It is worth noting that some flexibility already exists for trustees to collect reduced employer debts as long as the scheme is funded above a Pension Protection Fund level basis. It is set at this level to ensure that schemes do not place an additional burden on the Pension Protection Fund and, ultimately, the levy payers.
The amendment also proposes that debts could be compromised if the majority of the debt relates to orphan members whose employers no longer remain in the scheme. This would be very difficult for the scheme trustees, who have a duty to ensure that orphaned members’ rights are protected and that their scheme is properly funded. Removing orphan debts from the employer debt calculation would ultimately worsen the scheme’s funding position, putting thousands of members’ pensions at risk.
Further, this amendment would impose different statutory requirements on unincorporated and small employers, creating a number of challenges. For example, if all or the majority of the scheme’s employers were either unincorporated or small, it could mean that none, or very few, employer debts would ever be collected; in the long term, that could create a severe underfunding situation, with all the risks that entails.
The Government’s Green Paper and subsequent White Paper, which was published in March 2018, on defined benefit pension schemes looked very closely at this issue and considered carefully what could be done to relieve the pressure that some employers face from their obligation to pay an employer debt. The White Paper concluded that the existing arrangements in legislation, along with the deferred debt arrangement introduced in April 2018, provide enough flexibility for employers to manage their employer debts. Further, the current full buyout calculation method is the most secure and effective way of protecting members and remaining employers in a multi-employer scheme.
While the Government recognise the difficulty facing companies in managing this debt, they cannot, at this time, offer any easements beyond those already provided for in legislation. However, recognising the many representations that the Government have received supporting a change that would assist employers in this difficult position, we will keep this under review and continue the dialogue.
My noble friend Lady Altmann raised the issue of retired employers triggering a debt and being unable to pass it on. Flexibility in the rules enables retired employers to pass their scheme on to another employer without triggering an employer debt. The scheme has a streamlined, flexible apportionment arrangement, which could help employers in this situation.
My noble friend also made the point that some people find themselves in extreme difficulties, with the potential to lose their home. The employer debt regime is designed to protect employers who remain in a multi-employer scheme. It would be unfair to burden remaining employers with additional unplanned costs to cover the shortfall that would be created by relaxing requirements for one group of employers. The flexible apportionment arrangement currently available in legislation can be used to help unincorporated employers who wish to incorporate.
My noble friend Lady Altmann also asked whether the scheme is fully funded. My noble friend the Minister mentioned that the scheme is fully funded on a technical provision basis. However, I understand that the scheme is underfunded on both a budget basis and a PPF basis. The next scheme valuation is due in April 2020, which will give us a clearer picture of the scheme’s funding position.
I thank my noble friend and other noble Lords for their contributions to the debate on this amendment. I know how important it is to my noble friend, but, on the basis of my response, I respectfully ask her to withdraw the amendment.
I thank my noble friend for her response, but I confess to being extremely disappointed with the robust refusal to address the issue. The current easements are not working, otherwise I would not be trying to press this amendment. The deferred debt arrangement does not remove the debt; it just pushes it into the future, so the person will still be made destitute at some point. Trustees are refusing a flexible apportionment arrangement, so clearly that is not an option.
We seem to have lost sight of the materiality issue and of what we are trying to do with the bigger employers. There are already some ways in which trustees can not collect Section 75 debt. I am just trying to extend those very slightly; it will not apply to the majority of employers in the scheme and it will not materially impact on the solvency and survival of the scheme.
I beg leave to withdraw the amendment, but I urge my noble friend to go back to the department to see whether there are any ways in which we might be able to inject some further easement for multi-employer, non-associated schemes, which were never designed to do this to good employers.
Amendment 94 withdrawn.
Amendments 95 to 97 not moved.
Schedule 11: Further provision relating to pension schemes
98: Schedule 11, page 186, line 16, at end insert—
“11A_(1) The Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)) is amended as follows.(2) After Article 41 insert—“41A Climate change risk(1) Regulations may impose requirements on the trustees or managers of an occupational pension scheme of a prescribed description with a view to securing that there is effective governance of the scheme with respect to the effects of climate change. (2) The effects of climate change in relation to which provision may be made under paragraph (1) include, in particular— (a) risks arising from steps taken because of climate change (whether by governments or otherwise), and(b) opportunities relating to climate change.(3) The requirements which may be imposed by the regulations include, in particular, requirements about—(a) reviewing the exposure of the scheme to risks of a prescribed description;(b) assessing the assets of the scheme in a prescribed manner;(c) determining, reviewing and (if necessary) revising a strategy for managing the scheme’s exposure to risks of a prescribed description;(d) determining, reviewing and (if necessary) revising targets relating to the scheme’s exposure to risks of a prescribed description;(e) measuring performance against such targets;(f) preparing documents containing information of a prescribed description.(4) Regulations under paragraph (3)(b) may, in particular, require assets to be assessed by reference to their exposure to risks of a prescribed description and may, for the purposes of such an assessment, require the contribution of such assets to climate change to be determined.(5) In complying with requirements imposed by the regulations, a trustee or manager must have regard to guidance prepared from time to time by the Department.41B Climate change risk: publication of information(1) Regulations may require the trustees or managers of an occupational pension scheme of a prescribed description to publish information of a prescribed description relating to the effects of climate change on the scheme.(2) Regulations under paragraph (1) may, among other things—(a) require the trustees or managers to publish a document of a prescribed description;(b) require information or a document to be made available free of charge;(c) require information or a document to be provided in a form that is or by means that are prescribed or of a prescribed description.(3) In complying with requirements imposed by the regulations, a trustee or manager must have regard to guidance prepared from time to time by the Department.41C Articles 41A and 41B: compliance(1) Regulations may make provision with a view to ensuring compliance with a provision of regulations under Article 41A or 41B.(2) The regulations may in particular—(a) provide for the Authority to issue a notice (a “compliance notice”) to a person with a view to ensuring the person’s compliance with a provision of regulations under Article 41A or 41B;(b) provide for the Authority to issue a notice (a “third party compliance notice”) to a person with a view to ensuring another person’s compliance with a provision of regulations under Article 41A or 41B;(c) provide for the Authority to issue a notice (a “penalty notice”) imposing a penalty on a person where the Authority are of the opinion that the person—(i) has failed to comply with a compliance notice or third party compliance notice, or (ii) has contravened a provision of regulations under Article 41A or 41B; (d) provide for the making of a reference to the First-tier Tribunal or Upper Tribunal in respect of the issue of a penalty notice or the amount of a penalty;(e) confer other functions on the Authority.(3) The regulations may make provision for determining the amount, or the maximum amount, of a penalty in respect of a failure or contravention.(4) But the amount of a penalty imposed under the regulations in respect of a failure or contravention must not exceed—(a) £5,000, in the case of an individual, and(b) £50,000, in any other case.(5) In this Article “First-tier Tribunal” and “Upper Tribunal” mean those tribunals established under section 3 of the Tribunals, Courts and Enforcement Act 2007.”(3) In Article 113 (breach of regulations), in paragraph (3)(b), after “10” insert “or under provision contained in regulations made by virtue of Article 41C”.(4) In Article 167 (Assembly, etc. control of orders and regulations), after paragraph (3) insert—“(3A) Paragraph (2) also applies in relation to the first regulations made by virtue of Article 41A or 41C (whether made alone or with other regulations).””Member’s explanatory statement
This amendment makes provision for Northern Ireland that is equivalent to the provision made by the Minister’s amendment to insert a new Clause after Clause 123.
Amendment 98 agreed.
99: Schedule 11, page 186, line 22, after “(d)” insert “, (2A)(a), (b) or (d)”
Member’s explanatory statement
This amendment makes provision for Northern Ireland that is equivalent to the provision made by the Minister’s amendment at page 118, line 11.
Amendment 99 agreed.
Schedule 11, as amended, agreed.
100: Before Clause 129, insert the following new Clause—
Within six months of the passing of this Act the Secretary of State must lay an impact assessment before each House of Parliament setting out the expected costs of its provisions for businesses, and governmental and non-profit organisations.”
My Lords, my noble friend Lord Howe took great trouble in Grand Committee on 2 March—at column GC237 in Hansard—to respond to my earlier amendment on impact assessment. He made an admirable commitment to transparency, both on costs and benefits, on the range of measures in the Bill. Time is passing and I see no need to delay the Committee further. If it is in order, I will not move the amendment.
Amendment 100 not moved.
101: Before Clause 129, insert the following new Clause—
Regulations under this Act may not—(a) create a new criminal offence,(b) create a regulator,(c) create multi-employer collective money purchase schemes,(d) significantly restrict the powers of trustees, or(e) amend primary legislation.”
My Lords, in Committee there has been broad resistance by the Government to positive amendments suggesting what could be put in the Bill to give reassurance about many of the issues raised. The Government claim that that needs to be the case to preserve flexibility, but that does not get over the fact that there are very broad delegated powers in the Bill, as pointed out by my noble friend Lord Sharkey on the first day in Committee and by the Delegated Powers Committee. There is no certainty about how far those broad powers will be used. They are not called Henry VIII clauses for nothing, although delegated powers nowadays put Henry VIII in the shade. I believe the noble and learned Lord, Lord Judge, elaborated on that last year.
This amendment goes the other way. Instead of making suggestions to clarify what needs to be done, it clarifies five things that the Government may not do under the delegated powers. It is, of course, a probing amendment. I could have made a longer or different list, and a couple of matters are in it specifically to enable further discussion. However, despite the probing nature of the amendment, its form is not novel. It has appeared in other legislation, and I believe it appears several times in the withdrawal Act. It is a known way of addressing issues of concern in skeleton legislation. I may have helped it into a few pieces of legislation, but I consider that such a clause should always exist.
I shall take each of my points in turn. Proposed paragraph (a) states:
“Regulations under this Act may not … create a new criminal offence”.
That provision has been used before to constrain broad powers in legislation. A new criminal offence should always come to Parliament in such a way that it can be amended or rejected. I believe there are examples of finding a new criminal offence within a set of regulations with no amendment possibilities; indeed, I have been on one of the Secondary Legislation Scrutiny Committees, and there were examples. That should not happen. It would be a disproportionate use of delegated power—that has been suggested when I have run such a proposed clause—yet it has been used and therefore it is reasonable to suggest that it should not be. In the instance of pensions, and despite the fact that I have argued on this Bill that the criminal offences are not drawn wide enough, so I am certainly not a dud with regard to them, I do not believe that it would be reasonable to make new ones by regulation. The relevant clauses in the Bill are easily wide enough to do that.
Proposed paragraph (b) is about not creating a regulator. There appears to be a strong danger of that here because the wording that enables powers to be conferred on any person could enable the creation of a regulator. I think the wording is “discretion”, but my noble friend Lord Sharkey inquired as to what it meant and the reply came back that it could be any powers to any body, therefore it would enable the creation of a regulator. There is an example of that in Clause 51. If the person who is designated is already a regulator which has been set up under primary legislation, it is not a problem to expand its powers appropriately, but if a new regulator is created, that would be wrong. So why are there clauses in the Bill that are wide enough and of a description that would enable that? My wording here does not capture all the wrongs that could happen under any power to any person provisions, but at least it draws a line.
Proposed new paragraph (c) prohibits the creation of a multi-employer collective money purchase scheme through regulations. I refer back to issues that have already been discussed with regard to problems in the plumber pension scheme. There are other examples of difficulties caused by withdrawals from collective DB schemes. It can come around in particular when large and small employers are put together. Our discussions with regard to collective money purchase schemes have already made it clear that there are issues on which we are still uncomfortable in the context of the employee risk, even in a single CDC scheme. The Post Office scheme is not an everyday case; they will start out with some advantages. There will be even more unknowns in the multi-employer scheme. For example, the pool for risk-sharing is larger, which might seem attractive, but the risk of a larger group leaving is then an awfully large matter for the remaining pensioners to take on board.
Proposed new paragraph (d) is not to
“significantly restrict the powers of trustees”.
I do not mean to override the powers the regulator has to sanction trustees for improper behaviour. I put this point in because there has already been discussion as to whether some of this Bill’s provisions are encroaching on the day-to-day decision-making of trustees—for example, with regard to investment policies. There are noble Lords here who have far more experience of pension trustees than I do, and I particularly value thoughts on the usefulness of this provision. I want to be clear: I am not suggesting that this is anything to do with preventing regulators having the right balance of powers to do things. It is where they would intervene on day-to-day matters.
Proposed new paragraph (e) prevents amendment of primary legislation. I am aware that this is in conflict with the powers the Government have given themselves in Clause 47(5). It is a matter of principle. Pensions are a highly sensitive policy area, and it would be wrong if a Government could selectively change or revoke significant consumer protection provisions without scrutiny at the level of primary legislation. The clause says:
“Regulations under this section may among other things … amend, repeal or revoke a provision of this Part or any other enactment.”
A short while ago, when we were discussing one of the amendments from the noble Baroness, Lady Altmann, I think I heard that the Minister did not think there was the power to do certain things. Actually, the Government jolly well have it here, because they can “amend, repeal or revoke” anything they like—any enactment—so I think that was not a valid excuse, if I can put it that way.
Of course, the real problem here is that parliamentary procedures are deficient in that departments have to enter into a bidding process to get Bills and, because of time constraints, they do not come around superabundantly. The only other option, regulations, is not really democratic on the level on which they have become used. It is possible for the Government to do something about that, but it is my view that, until it is done, restraints must be placed on powers in the manner I propose—all the more so when there is lack of policy guidance.
I know we have had exchanges before on whether there is adequate policy guidance. Some of us think there is not, and the noble Earl has said it is all about implementation and the policy is there. I cited Clause 47(5), and Clause 51(3) says:
“Regulations under this Part may … confer a discretion on a person”.
When that was discussed—when the noble Lord, Lord Sharkey, raised the clause stand part debate on Clause 51—my immediate scribble was “may not create a regulator”, which was directly in response to what could be covered under “discretion”. That, therefore, is the reasoning. I could give more reasons and find many more examples of where discretion is conferred: a failure to really tie it down to the policies. Given that where helpful suggestions have been put forward that would perhaps have given more reassurance on the true nature and scope have been resisted, there is no alternative but to outline what may not be done. I beg to move.
My Lords, I add my support to many aspects of the amendment from the noble Baroness, Lady Bowles. She is trying to do something very helpful for the Committee and the Bill. We have all expressed concerns about the wide-ranging powers in this Bill, which seem to go a lot further than normal for such Bills. I recognise that pensions Bills tend to have wide powers added to them, but it makes sense to identify areas where we would not wish the legislation to allow a Minister to do things that would normally come back to Parliament for our scrutiny or further legislation.
My Lords, I, too, share the aspiration of the noble Baroness, Lady Bowles, to constrain somewhat the use of the extensive powers that the Government are blessing themselves through this Bill. I will not, however, reopen that debate in any great detail, although there is a temptation to say “We have another whole hour of Committee, we can debate this at great length”. The danger of a list is that some noble Lords will have concerns about particular aspects, such as constraining trustee power, while some will be in favour of multi-employer collective money purchase schemes. Most of us, however, would have reservations about the ability to amend primary legislation.
Although it may not feel as though Bills come along in super abundance, in the field of pensions it feels like they come along all the time like the number 19 bus, but I take the point. In fact, if we are going to have a list I would like to add to it: I would start with not allowing dashboards to do transactions without covering that in primary legislation. I have a long list in my notes which I will develop at length should we return to this. What might be helpful is if the Minister, in replying, would tell Committee whether the Government intend to do any of these things.
My Lords, the question of delegated powers has already been extensively discussed in relation to the relevant clauses. My noble friend Lord Howe has already eloquently covered the Government’s position on these powers. As I said before to this Committee, the use of secondary legislation to set out more detailed technical matters, or to amend primary legislation for specified purposes, is consistent with the general approach in pensions legislation.
As with other pensions legislation, the provisions in the Bill embody the fundamental policy, while provisions of a more technical nature, or which are by their nature liable to change, are delegated to secondary legislation. This staged approach has two benefits. First, it enables flexibility to ensure that the legal framework remains appropriately tailored to developments in the pensions industry. Secondly, it enables government to provide legal certainty more quickly. This is important for the pensions industry and for member protection. It is a common feature of pensions legislation, which is by its nature very technical and can be subject to change.
I turn now to some of the areas singled out by the noble Baroness, Lady Bowles, in her amendment. One was the rationale for a delegated power to introduce new criminal sanctions. There is no delegated power in the Bill to create a new criminal offence through regulations. However, the noble Baroness might have in mind in tabling this amendment the delegated powers in Clause 107. These allow regulations to prescribe schemes or types of DB pension schemes to which the offence of failing to comply with a contribution notice or employer debt liability will not apply. These powers are necessary to fine tune how the offence will apply in order to target the types of schemes most at risk. It will also allow the Government to respond to any changing and emerging risks to pension schemes.
On the rationale for delegated power to restrict the powers of trustees, the amendment would also prevent us using regulations to place significant restrictions on trustee activities. There are some areas where we think the powers could be seen to enable regulations to restrict the powers of trustees to some extent. For example, there is a delegated power in Clause 18 to prescribe and then, if necessary, amend the framework which trustees of a CDC scheme must follow when setting the rules for the calculation and adjustment of CDC benefit values.
We do not wish to interfere with trustees’ activities unless necessary. For example, as I said in Committee last week in relation to Clause 18, we would not want to interfere with authorised CDC schemes that meet all the Pensions Regulator’s supervisory criteria. Pension scheme trustees are directly responsible for millions of ordinary people’s retirement incomes. For CDC schemes, in particular, trustee decisions might directly affect the amount of pension income a person gets to live on each month. It is therefore right, and indeed necessary, that the Government have the powers in some circumstances to place regulatory restrictions on trustee discretion.
There are regulation-making powers in the Bill which could potentially restrict the power of pension schemes’ trustees on investments. These powers are taken because there could be situations where members’ benefits might be at risk. It is important that the Government can, where necessary, use regulations to place requirements on trustees in order to safeguard members. We are mindful that we do not wish to interfere unnecessarily but our view is that taking a power to act swiftly where required is appropriate and proportionate.
The noble Baroness, Lady Bowles, raised a point about the rationale for delegated power to amend the legislation in order to create multi-employer collective money purchase schemes. The amendment would also prevent us using regulations to amend this Bill to provide for CDC master trusts and other kinds of non-connected multi-employer CDC schemes.
As I said previously in this Committee, many people, including those from the insurance industry, trade unions, pension providers and pensions commentators, have called for CDC provision to be extended to master trusts, decumulation-only vehicles and other models of non-connected multi-employer schemes. Part 1 was drafted with the intention of using regulations to open it up to other kinds of CDC schemes in the future. Primary legislation sets the framework and principles all CDC schemes must follow, and regulations will then be used to ensure the legislation works appropriately for different kinds of schemes.
The proposed amendment to these powers would delay the rollout of these other scheme types, as it would require us to bring forward new primary legislation to achieve it. This would mean that many employees and businesses would not get the benefit of CDC pensions as early as would otherwise be possible. As I said last week, the power in Clause 47 to disapply the prohibition on master trusts and other types of non-connected multi-employer schemes to provide CDC benefits via regulations is subject to the affirmative procedure to enable debate. We intend that any such regulations will also be the subject of further consultation.
As the Committee is aware, there are a number of Henry VIII powers in this Bill. These powers to amend legislation through regulations will ensure that the legislation can be adapted to cover future developments in the pensions industry, while keeping members well protected. I am aware of the views expressed by the Committee about the use of any Henry VIII powers. I have listened to those concerns today and when they have been expressed to me previously. However, I am also clear that they appear in this Bill only for wholly appropriate reasons. These powers are included to ensure that the legislation can operate effectively and, where necessary, respond to developments in industry.
I want to be clear to noble Lords that there is no need to rule out the creation of a regulator through regulations, as there are no powers in this Bill to create a regulator.
I should have included this point in my response to questions about the Henry VIII powers, so forgive me for not doing so. As CDCs are a new type of benefit, we want to ensure that they work as intended. Royal Mail is currently the only employer that has committed to establish a CDC scheme, and we want to take the time to learn before opening up CDC provisions more widely. We are aware that various industry bodies have expressed an interest in other models of CDC benefit provision. This power would enable the Government to react to industry developments, so that CDC provisions can be extended to other models, such as non-connected multi-employer or commercial providers, but only to the extent appropriate, as the noble Baroness pointed out.
The noble Baroness, Lady Bowles, raised a point about not using delegated powers to create a new regulator. I have already covered that.
As for delegated powers to amend the legislation in order to create multi-employer collective money purchase schemes, and the fact that these provisions are not in the Bill, we need to consult with actuaries, pension lawyers, pension providers, employers and any other interested parties before we finalise our provisions in this area. The design of CDC master trusts and other non-connected multi-employer CDC schemes might need to have slightly different authorisation requirements or continuity strategies, and we need to engage with the industry on this.
With the further assurances I have provided, I respectfully request that the noble Baroness withdraw her amendment.
I thank the Minister for her responses. Referring to the question put by the noble Baroness, Lady Sherlock, as to which of these the Government may be doing, I think the answer has come back: all of them. I will go through them.
With proposed new paragraph (a), to
“create a new criminal offence”,
I was not focusing on fine-tuning Clause 107. We are used to how fine-tuning of an existing offence is done. If you look at some other areas, such as sanctions and anti-money laundering, you will see that it is a new criminal offence every time a new sanction is created, but the framework for what has to be done to create such a sanction is laid out in the Bill. If the right kind of policy direction is given in the Bill, you can be allowed to do more. I beg to differ with the assumption that there are no powers here, when the Government can amend any enactment. It puts no restriction on what they may do, so I do not think there is any legal certainty around not creating something that is a completely new idea of a criminal offence.
I am pleased to hear that there is no power here to enable the creation of a regulator. I would be interested to look again at the Hansard from the first day of Committee, because under the requirement to
“confer a discretion on a person”,
the person can be a body corporate and the discretion was specifically referenced as “powers”, if I remember rightly. I would be happy to accept a Pepper v Hart statement that there is to be no creation of regulators, if the Minister felt able to make one.
It has been made clear that there is the intent to create multi-employer collective money purchase schemes. This worries me greatly: having looked at it further, I am now less than certain about the general benefits and there is a risk to pensioners and employees. So many of the points put forward over the four days of Committee debates show that we have not got sufficient guidance as to what that shape will be. It worries me quite a lot that although we cannot yet work out how to do it fully for one, we are going with the more risky multi-employer system.
The requirement to
“significantly restrict the powers of trustees”
is, I suppose, a trick point. If anything does not deserve to be in the list, it is that, but I have drawn out a debate around the point, as I hoped to. Perhaps we have to be able to do that, but maybe there is some other way to make sure that it is framed with care.
My amendment then comes back to the amending of primary legislation. This is a wide power and I know that it can be used usefully, but such wide powers are never based on a single regulation. An individual regulation that could amend or revoke primary legislation would mean that Parliament could then reject it without being accused of always throwing the baby out with the bath water and losing all the other good things in the regulations. That might be a more reasonable way to approach things, but we know that that is not how it happens: we find ourselves doing something that we do not like because it is a small element of a much bigger thing. It is always done when the Government can make the case that it is urgent and that it will be a total disaster if it is booted out.
I am grateful to the noble Baroness for giving way, especially as I am about to abuse her generosity by asking a more general question. It is directed across the table, and is something that I forgot to ask in my own contribution.
The noble Baroness asked for assurance on various points. At various times during the Committee, the Minister has kindly agreed to write to noble Lords. Can the Minister confirm that those letters will come before Report?
Amendment 101 withdrawn.
Clauses 129 to 131 agreed.
Bill reported with amendments.
Committee adjourned at 6.59 pm.