Pensions Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Pensions Bill

Pensions Bill
Part 7 — Miscellaneous and supplementary
152

(c)
an unincorporated body or association with offices outside the United
Kingdom,
the references in subsection (6) to its principal office include references to its
principal office within the United Kingdom (if any).
(8)
In this section “notification” includes notice; and references in this section to
5
sending a document to a person include references to making an application to
him.
(9)
This section has effect subject to section 228.
228
Notification and documents in electronic form
(1)
This section applies where—
10
(a)
section 227 authorises the giving or sending of a notification or other
document by its delivery to a particular person (“the recipient”), and
(b)
the notification or other document is transmitted to the recipient—
(i)
by means of an electronic communications network, or
(ii)
by other means but in a form that nevertheless requires the use
15
of apparatus by the recipient to render it intelligible.
(2)
The transmission has effect for the purposes of this Act as a delivery of the
notification or other document to the recipient, but only if the requirements
imposed by or under this section are complied with.
(3)
Where the recipient is a relevant authority—
20
(a)
it must have indicated its willingness to receive the notification or other
document in a manner mentioned in subsection (1)(b),
(b)
the transmission must be made in such manner, and satisfy such other
conditions, as it may require, and
(c)
the notification or other document must take such form as it may
25
require.
(4)
Where the person making the transmission is a relevant authority, it may
(subject to subsection (5)) determine—
(a)
the manner in which the transmission is made, and
(b)
the form in which the notification or other document is transmitted.
30
(5)
Where the recipient is a person other than a relevant authority—
(a)
the recipient, or
(b)
the person on whose behalf the recipient receives the notification or
other document,

must have indicated to the person making the transmission the recipient’s
35
willingness to receive notifications or documents transmitted in the form and
manner used.
(6)
An indication given to any person for the purposes of subsection (5)—
(a)
must be given to that person in such manner as he may require,
(b)
may be a general indication or one that is limited to notifications or
40
documents of a particular description,
(c)
must state the address to be used and must be accompanied by such
other information as that person requires for the making of the
transmission, and

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(d)
may be modified or withdrawn at any time by a notice given to that
person in such manner as he may require.
(7)
An indication, requirement or determination given, imposed or made by a
relevant authority for the purposes of this section is to be given, imposed or
made by being published in such manner as it considers appropriate for
5
bringing it to the attention of the persons who, in its opinion, are likely to be
affected by it.
(8)
Where both the recipient and the person making the transmission are relevant
authorities—
(a)
subsections (3) and (4) do not apply, and
10
(b)
the recipient must have indicated to the person making the
transmission the recipient’s willingness to receive notifications or
documents transmitted in the form and manner used.
(9)
Subsection (8) of section 227 applies for the purposes of this section as it applies
for the purposes of that section.
15
(10)
In this section, “relevant authority” means the Regulator, the Board or the
Secretary of State.
(11)
In this section and section 229, “electronic communications network” has the
same meaning as in the Communications Act 2003 (c. 21).
229
Timing and location of things done electronically
20
(1)
The Secretary of State may by order make provision specifying, for the
purposes of any enactment contained in, or made under, this Act, the manner
of determining—
(a)
the times at which things done under that enactment by means of
electronic communications networks are done, and
25
(b)
the places at which such things are so done, and at which things
transmitted by means of such networks are received.
(2)
The provision made under subsection (1) may include provision as to the
country or territory in which an electronic address is to be treated as located.
(3)
An order made by the Secretary of State may also make provision about the
30
manner of proving in any legal proceedings—
(a)
that something done by means of an electronic communications
network satisfies the requirements of an enactment contained in, or
made under, this Act for the doing of that thing, and
(b)
the matters mentioned in subsection (1)(a) and (b).
35
(4)
An order under this section may provide for such presumptions to apply
(whether conclusive or not) as the Secretary of State considers appropriate.
General
230
Overriding requirements
(1)
Where any provision mentioned in subsection (2) conflicts with the provisions
40
of an occupational or personal pension scheme—
(a)
the provision mentioned in subsection (2), to the extent that it conflicts,
overrides the provisions of the scheme, and

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(b)
the scheme has effect with such modifications as may be required in
consequence of paragraph (a).
(2)
The provisions referred to in subsection (1) are those of—
(a)
any order made by the Regulator under Part 1;
(b)
any regulations made under section 21(7);
5
(c)
Part 2 (other than Chapter 1), any subordinate legislation made under
that Part and any direction given under section 106 or 119;
(d)
Part 3 and any order made by the Regulator under section 188;
(e)
any regulations under section 194;
(f)
sections 196 and 197, any regulations made under sections 196 to 198
10
and any arrangements under sections 196 and 197;
(g)
sections 200 and 201 and any regulations under sections 200 to 202;
(h)
section 204;
(i)
any regulations under section 231, 238(6) or 241(2) and any order under
section 245(5).
15
(3)
Subsection (1) is without prejudice to section 28(1) (overriding effect of
freezing orders made by the Regulator) and section 119(9) (overriding effect of
requirement to wind up pension scheme under Part 2).
(4)
In the case of a company to which section 197 (requirement for member-
nominated directors of corporate trustees) applies, where any provision
20
mentioned in subsection (5) conflicts with the provisions of the company’s
memorandum or articles of association—
(a)
the provision mentioned in subsection (5), to the extent that it conflicts,
overrides the provisions of the memorandum or articles, and
(b)
the memorandum or articles have effect with such modifications as
25
may be required in consequence of paragraph (a).
(5)
The provisions referred to in subsection (4) are those of—
(a)
section 197;
(b)
any regulations made under section 197 or 198;
(c)
any arrangements under section 197.
30
231
Modification of this Act in relation to hybrid or multi-employer schemes
(1)
Regulations may modify any of the provisions mentioned in subsection (2) as
it applies in relation to—
(a)
hybrid schemes;
(b)
multi-employer schemes.
35
(2)
The provisions referred to in subsection (1) are those of—
(a)
Part 1 (the Pensions Regulator),
(b)
Part 2 (the Board of the Pension Protection Fund), other than Chapter 1,
(c)
section 194 (combined pension forecasts), and
(d)
sections 203 and 204 (pension protection).
40
(3)
In this section—

“hybrid scheme” means an occupational pension scheme—
(a)
which is not a money purchase scheme, but
(b)
where some of the benefits that may be provided are—

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(i)
money purchase benefits attributable to voluntary
contributions of the members, or
(ii)
other money purchase benefits; and

“multi-employer scheme” means an occupational pension scheme in
relation to which there is more than one employer.
5
232
Offences by bodies corporate and partnerships
(1)
Where an offence under this Act committed by a body corporate is proved to
have been committed with the consent or connivance of, or to be attributable
to any neglect on the part of, a director, manager, secretary or other similar
officer of the body, or a person purporting to act in any such capacity, he as
10
well as the body corporate is guilty of the offence and liable to be proceeded
against and punished accordingly.
(2)
Where the affairs of a body corporate are managed by its members, subsection
(1) applies in relation to the acts and defaults of a member in connection with
his functions of management as to a director of a body corporate.
15
(3)
Where an offence under this Act committed by a Scottish partnership is proved
to have been committed with the consent or connivance of, or to be attributable
to any neglect on the part of, a partner, he as well as the partnership is guilty
of the offence and liable to be proceeded against and punished accordingly.
233
Admissibility of statements
20
(1)
A statement made by a person in compliance with an information requirement
is admissible in evidence in any proceedings, so long as it also complies with
any requirements governing the admissibility of evidence in the circumstances
in question.
(2)
But in proceedings to which this subsection applies—
25
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,

by or on behalf of the prosecution or (as the case may be) the Regulator, unless
evidence relating to it is adduced, or a question relating to it is asked, in the
proceedings by or on behalf of that person.
30
(3)
Subsection (2) applies to—
(a)
criminal proceedings in which that person is charged with a relevant
offence, or
(b)
proceedings as a result of which that person may be required to pay a
financial penalty under or by virtue of—
35
(i)
section 168 of the Pension Schemes Act 1993 (c. 48) (breach of
regulations) or section 10 of the Pensions Act 1995 (c. 26) (civil
penalties), or
(ii)
any provision in force in Northern Ireland corresponding to a
provision mentioned in sub-paragraph (i).
40
(4)
In this section—

“information requirement” means any statement made in compliance
with any duty imposed by or by virtue of—
(a)
section 39 (duties of trustees or managers to provide scheme
return);
45

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(b)
section 45 (duty to report breaches of the law);
(c)
section 46 (requirement to provide information to the
Regulator);
(d)
section 49 (inspection of premises: powers of inspectors to
examine etc);
5
(e)
section 52(2)(d) (power of inspector entering under warrant to
require a person to provide an explanation of a document);
(f)
section 152 (information to be provided to the Board);
(g)
section 153 (notices requiring provision of information to the
Board);
10
(h)
section 154 (entry of premises: powers of appointed persons to
examine etc);
(i)
section 156(2)(d) (power of inspector entering under warrant to
require a person to provide an explanation of a document);
(j)
section 170 (power to make order enabling PPF Ombudsman to
15
obtain information, documents etc);
(k)
section 173 or 174 (disclosure of information on references made
to PPF Ombudsman);
(l)
section 185 (failure to make payments in accordance with
schedule of contributions);
20
(m)
paragraph 19 of Schedule 1 (power to make regulations
enabling Regulator to summon persons to give evidence before
it);
(n)
paragraph 11 of Schedule 3 (the Pensions Regulator Tribunal:
evidence);
25

“relevant offence” means any offence other than one under—
(a)
section 51 (neglect or refusal to provide information etc to the
Regulator);
(b)
section 54 (providing false or misleading information to the
Regulator);
30
(c)
section 155 (neglect or refusal to produce information etc to the
Board);
(d)
section 157 (providing false or misleading information to the
Board);
(e)
any provision in force in Northern Ireland corresponding to a
35
provision mentioned in paragraphs (a) to (d);
(f)
section 5 of the Perjury Act 1911 (c. 6) (false statements made
otherwise than on oath);
(g)
section 44(2) of the Criminal Law (Consolidation) (Scotland)
Act 1995 (c. 39) (false statements made otherwise than on oath);
40
(h)
Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I.
1979/1714 (N.I. 19)).
234
Protected items
(1)
A person may not be required under or by virtue of this Act to produce,
disclose or permit the inspection of protected items.
45
(2)
For this purpose “protected items” means—
(a)
communications between a professional legal adviser and his client or
any person representing his client which fall within subsection (3);

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(b)
communications between a professional legal adviser, his client or any
person representing his client and any other person which fall within
subsection (3) (as a result of paragraph (b) of that subsection);
(c)
items which—
(i)
are enclosed with, or referred to in, such communications,
5
(ii)
fall within subsection (3), and
(iii)
are in the possession of a person entitled to possession of them.
(3)
A communication or item falls within this subsection if it is made—
(a)
in connection with the giving of legal advice to the client, or
(b)
in connection with, or in contemplation of, legal proceedings and for
10
the purpose of those proceedings.
(4)
A communication or item is not a protected item if it is held with the intention
of furthering a criminal purpose.
235
Liens
If a person claims a lien on a document, its production under any provision
15
made by or by virtue of this Act does not affect the lien.
236
Crown application
(1)
In this section “the relevant provisions” means—
(a)
Parts 1 to 5,
(b)
sections 230, 231, 233, 234, 235, 237, 238, 241(2) and 245(5).
20
(2)
The relevant provisions apply to a pension scheme managed by or on behalf of
the Crown as they apply to other pension schemes; and, accordingly,
references in those provisions to a person in his capacity as a trustee or
manager of, or person prescribed in relation to, a pension scheme include the
Crown, or a person acting on behalf of the Crown, in that capacity.
25
(3)
The relevant provisions apply to persons employed by or under the Crown in
like manner as if such persons were employed by a private person; and
references in those Parts to a person in his capacity as an employer include the
Crown, or a person acting on behalf of the Crown in that capacity.
(4)
This section does not apply to any of the relevant provisions under or by virtue
30
of which a person may be prosecuted for an offence; but such a provision
applies to persons in the public service of the Crown as it applies to other
persons.
(5)
Nothing in the relevant provisions applies to Her Majesty in Her private
capacity (within the meaning of the Crown Proceedings Act 1947 (c. 44)).
35
Regulations and orders
237
Breach of regulations
The following provisions of the Pensions Act 1995 (c. 26) apply to regulations
under this Act as if they were regulations made by virtue of Part 1 of that Act—
(a)
section 10(3) to (9) (power to impose civil penalties for contravention of
40
regulations under Part 1 of that Act);

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(b)
section 116 (power to provide for contravention of regulations under
that Part to be criminal offence).
238
Subordinate legislation (general provisions)
(1)
Any power conferred by this Act to make subordinate legislation is exercisable
by statutory instrument, except any order-making power conferred on the
5
Regulator.
(2)
Any power conferred by this Act to make subordinate legislation may be
exercised—
(a)
either in relation to all cases to which the power extends, or in relation
to those cases subject to specified exceptions, or in relation to any
10
specified cases or descriptions of case;
(b)
so as to make, as respects the cases in relation to which it is exercised—
(i)
the full provision to which the power extends or any lesser
provision (whether by way of exceptions or otherwise),
(ii)
the same provision for all cases in relation to which the power
15
is exercised, or different provision for different cases or
different descriptions of case or different provision as respects
the same case or description of case for different purposes of
this Act, or
(iii)
any such provision either unconditionally or subject to any
20
specified condition.
(3)
Any power conferred by this Act to make subordinate legislation—
(a)
if it is expressed to be exercisable for alternative purposes, may be
exercised in relation to the same case for any or all of those purposes,
and
25
(b)
if it is conferred for the purposes of any one provision of this Act, is
without prejudice to any power to make subordinate legislation for the
purposes of any other provision.
(4)
A power conferred by this Act to make subordinate legislation includes power
to provide for a person to exercise a discretion in dealing with any matter.
30
(5)
Any power conferred by this Act to make subordinate legislation also includes
power to make such incidental, supplementary, consequential or transitional
provision as appears to the authority making the subordinate legislation to be
expedient.
(6)
Regulations may, for the purposes of or in connection with the coming into
35
force of any provisions of this Act, make any such provision as could be made
by virtue of section 245(5) by an order bringing those provisions into force.
239
Parliamentary control of orders and regulations
(1)
Subject to subsections (2) and (3), a statutory instrument containing regulations
or an order or rules under this Act is subject to annulment in pursuance of a
40
resolution of either House of Parliament.
(2)
A statutory instrument which contains—
(a)
regulations under section 91(1) or (3) (administration levy in respect of
expenditure relating to the Board of the Pension Protection Fund);