Pensions Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Pensions Bill

Pensions Bill
Part 1 — The Pensions Regulator
45

(a)
the power to make a direction under section 50(8) extending the
retention period for documents taken into possession under section 49;
(b)
the power to make a direction under section 52(8) extending the
retention period for documents taken into possession under that
section;
5
(c)
the power to make an order under section 3 of the Pensions Act 1995
(c. 26) prohibiting a person from being a trustee;
(d)
the power to make an order under section 3(3) of that Act revoking such
an order;
(e)
the power to make an order under section 4 of that Act suspending a
10
trustee;
(f)
the power to make an order under section 4(5) of that Act revoking such
an order;
(g)
the power to make an order under section 7 of that Act appointing a
trustee;
15
(h)
the power under section 29(5) of that Act to give a notice waiving a
disqualification under section 29 of that Act;
(i)
the power to give directions under section 72B of that Act facilitating a
winding up;
(j)
the power under section 99(4) of the Pension Schemes Act 1993 (c. 48)
20
to grant an extension of the period within which the trustees or
managers of a scheme are to carry out certain duties;
(k)
the power under section 101J(2) of that Act to extend the period for
compliance with a transfer notice;
(l)
such other regulatory functions as may be prescribed;
25
(m)
the power under section 75 to vary or revoke any order, notice or
direction made or given in the exercise of any of the regulatory
functions mentioned in paragraphs (a) to (c), (e) and (g) to (l).
71
Special procedure: applicable cases
(1)
The special procedure in section 72 (and not the standard procedure) applies
30
to—
(a)
a case falling within subsection (2), and
(b)
a case falling within subsection (3).
(2)
A case falls within this subsection if—
(a)
the Regulator considers that it may be necessary to exercise a
35
regulatory function listed in subsection (4) immediately because there
is, or the Regulator considers it likely that if a warning notice were to
be given there would be, an immediate risk to—
(i)
the interests of members under an occupational or personal
pension scheme, or
40
(ii)
the assets of such a scheme,
(b)
the Regulator accordingly dispenses with the giving of a warning
notice and an opportunity to make representations as described in
section 70(2)(a) and (b), and
(c)
the Regulator determines to exercise the function immediately on the
45
basis that it is necessary to do so because there is, or the Regulator
considers it likely that if the function were not exercised immediately
there would be, an immediate risk to—

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Part 1 — The Pensions Regulator
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(i)
the interests of members under an occupational or personal
pension scheme, or
(ii)
the assets of such a scheme.
(3)
A case falls within this subsection if—
(a)
the Regulator gives a warning notice as described in section 70(2)(a) in
5
relation to a determination whether to exercise a regulatory function
listed in subsection (4), and
(b)
before it has considered the representations of those persons to whom
the warning notice is given, the Regulator determines to exercise the
function immediately on the basis that it is necessary to do so because
10
there is, or the Regulator considers it likely that if the function were not
exercised immediately there would be, an immediate risk to—
(i)
the interests of members under an occupational or personal
pension scheme, or
(ii)
the assets of such a scheme.
15
(4)
The regulatory functions referred to in subsections (2) and (3) are—
(a)
the power to make a freezing order under section 20;
(b)
the power to make an order under section 22(3) extending the period
for which a freezing order has effect;
(c)
the power to make an order under section 23 validating action taken in
20
contravention of a freezing order;
(d)
the power to make an order under section 24 directing that specified
steps are taken;
(e)
the power to make an order under section 26 giving a direction where
a freezing order ceases to have effect;
25
(f)
the power to make an order under section 27(3) directing the
notification of members;
(g)
the power to make an order under section 188 modifying a scheme,
giving directions or imposing a schedule of contributions;
(h)
the power to make an order under section 3 of the Pensions Act 1995
30
(c. 26) prohibiting a person from being a trustee;
(i)
the power to make an order under section 3(3) of that Act revoking such
an order;
(j)
the power to make an order under section 4 of that Act suspending a
trustee;
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(k)
the power to make an order under section 4(5) of that Act revoking such
an order;
(l)
the power to make an order under section 7 of that Act appointing a
trustee;
(m)
the power to make an order under section 11 of that Act directing or
40
authorising an occupational pension scheme to be wound up;
(n)
the power under section 29(5) of that Act to give a notice waiving a
disqualification under section 29 of that Act;
(o)
such other regulatory functions as may be prescribed;
(p)
the power under section 75 to vary or revoke any order, notice or
45
direction made, issued or given in the exercise of any of the regulatory
functions mentioned in paragraphs (a) to (h), (j), or (l) to (o).

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72
Special procedure
(1)
The procedure determined under section 67 must make provision for the
special procedure.
(2)
The “special procedure” is a procedure which provides for—
(a)
the giving of notice of the determination to exercise the regulatory
5
function to such persons as appear to the Regulator to be directly
affected by it (“a determination notice”),
(b)
the determination notice to contain details of the requirement for the
Regulator to review the determination under section 73(1) and of any
subsequent right of referral to the Tribunal under section 73(7),
10
(c)
the persons to whom the determination notice was given (as required
under paragraph (a)) to have an opportunity to make representations
in relation to the determination before it is reviewed under section
73(1),
(d)
the consideration of any such representations before the determination
15
on the review,
(e)
the giving of a notice in accordance with section 73(4) of the
determination on the review (“a final notice”),
(f)
the final notice to contain details of the right of referral to the Tribunal
under section 73(7),
20
(g)
the form and further content of determination notices and final notices
and the manner in which they are to be given, and
(h)
the time limits to be applied at any stage of the procedure.
73
Compulsory review
(1)
In a case where the special procedure applies, the Regulator must review the
25
determination to exercise the regulatory function.
(2)
The review must be determined as soon as reasonably practicable.
(3)
The Regulator’s powers on a review under this section include power to—
(a)
confirm, vary or revoke the determination,
(b)
confirm, vary or revoke any order, notice or direction made, issued or
30
given as a result of the determination,
(c)
substitute a different determination, order, notice or direction,
(d)
deal with the matters arising on the review as if they had arisen on the
original determination, and
(e)
make savings and transitional provision.
35
(4)
When the Regulator has completed a review under this section a notice of its
determination on the review must be given to such persons as appear to it to
be directly affected by its determination on the review.
(5)
If the final notice contains a determination to exercise a different regulatory
function to the function which was the subject-matter of the determination
40
notice, then the final notice may not be given unless—
(a)
such persons as appear to the Regulator to be directly affected by the
exercise of the regulatory function have been given an opportunity to
make representations, and
(b)
the Regulator has considered any such representations before it makes
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its determination on the review.

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(6)
Subsection (5) does not apply if the regulatory function is listed in section 71(4)
and the Regulator determines to exercise it immediately on the basis that it is
necessary to do so because there is, or the Regulator considers it likely that if
the function were not exercised immediately there would be, an immediate
risk to—
5
(a)
the interests of members under an occupational or personal pension
scheme, or
(b)
the assets of such a scheme.
(7)
The determination which is the subject-matter of a final notice may be referred
to the Tribunal (see section 76) by—
10
(a)
any person to whom the final notice is given as required under
subsection (4), and
(b)
any other person who appears to the Tribunal to be directly affected by
the determination.
(8)
The functions of the Regulator under this section are exercisable on behalf of
15
the Regulator by the Determinations Panel (and are not otherwise exercisable
by or on behalf of the Regulator).
(9)
The Panel must determine the procedure that it proposes to follow in relation
to the exercise of those functions.
(10)
Section 68 (publication of Regulator’s procedure) applies in relation to the
20
procedure determined under subsection (9) as it applies to the procedure
determined under section 67 (procedure in relation to the regulatory
functions).
74
Duty to have regard to the interests of members etc
(1)
The Regulator must have regard to the matters mentioned in subsection (2)—
25
(a)
when determining whether to exercise a regulatory function—
(i)
in a case where the requirements of the standard or special
procedure apply, or
(ii)
on a review under section 73, and
(b)
when exercising the regulatory function in question.
30
(2)
Those matters are—
(a)
the interests of the generality of the members of the scheme to which
the exercise of the function relates, and
(b)
the interests of such persons as appear to the Regulator to be directly
affected by the exercise.
35
75
Powers to vary or revoke orders, notices or directions etc
(1)
The Regulator may vary or revoke—
(a)
any determination by the Regulator whether to exercise a regulatory
function, or
(b)
any order, notice or direction made, issued or given by the Regulator in
40
the exercise of a regulatory function.
(2)
Subsection (1)(b) does not apply to—
(a)
an order under section 3(3) of the Pensions Act 1995 (c. 26) revoking a
prohibition order under that section, or

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(b)
an order under section 4(5) of that Act revoking a suspension order
under that section.
(3)
A variation or revocation of an order, a notice or a direction must be made by
an order, notice or direction (as the case may be).
(4)
A variation or revocation made under this section must take effect from a
5
specified time which must not be a time earlier than the time when the
variation or revocation is made.
(5)
The power to vary or revoke under this section—
(a)
is not to be treated for the purposes of subsection (1) as a regulatory
function, and
10
(b)
is in addition to any such power which is conferred on the Regulator
by, or by virtue of, this or any other enactment.
The Pensions Regulator Tribunal
76
The Pensions Regulator Tribunal
(1)
There shall be a tribunal to be known as the Pensions Regulator Tribunal (in
15
this Act referred to as “the Tribunal”).
(2)
The Tribunal is to have the functions conferred on it by this Act or any
provision in force in Northern Ireland corresponding to this Act.
(3)
The Lord Chancellor may by rules make such provision as appears to him to
be necessary or expedient in respect of the conduct of proceedings before the
20
Tribunal.
(4)
Schedule 4 (which makes provision as respects the Tribunal and its
proceedings) has effect.
(5)
But that Schedule does not limit the Lord Chancellor’s powers under this
section.
25
77
References to the Tribunal
(1)
A reference to the Tribunal under this Act must be made—
(a)
in the case of a referral under section 70(3) (referral following
determination under standard procedure), during the period of 28 days
beginning with the day on which the determination notice in question
30
is given,
(b)
in the case of a referral under section 73(7) (referral following
determination under special procedure), during the period of 28 days
beginning with the day on which the final notice in question is given, or
(c)
during such other period as may be specified in rules made under
35
section 76.
(2)
Subject to rules made under section 76, the Tribunal may allow a reference to
be made after the end of the relevant period specified in or under subsection
(1).
(3)
On a reference, the Tribunal may consider any evidence relating to the subject-
40
matter of the reference, whether or not it was available to the Regulator at the
material time.

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(4)
On a reference, the Tribunal must determine what (if any) is the appropriate
action for the Regulator to take in relation to the matter referred to the
Tribunal.
(5)
On determining a reference, the Tribunal must remit the matter to the
Regulator with such directions (if any) as the Tribunal considers appropriate
5
for giving effect to its determination.
(6)
Those directions may include directions to the Regulator—
(a)
confirming the Regulator’s determination and any order, notice or
direction made, issued or given as a result of it;
(b)
to vary or revoke the Regulator’s determination, and any order, notice
10
or direction made, issued or given as a result of it;
(c)
to substitute a different determination, order, notice or direction;
(d)
to make such savings and transitional provision as the Tribunal
considers appropriate.
(7)
The Regulator must act in accordance with the determination of, and any
15
direction given by, the Tribunal (and accordingly sections 70 to 73 (standard
and special procedure) do not apply).
(8)
The Tribunal may, on determining a reference, make recommendations as to
the procedure followed by the Regulator or the Determinations Panel.
(9)
An order of the Tribunal may be enforced—
20
(a)
as if it were an order of a county court, or
(b)
in Scotland, as if it were an order of the Court of Session.
78
Appeal on a point of law
(1)
A party to a reference to the Tribunal may with permission appeal—
(a)
to the Court of Appeal, or
25
(b)
in Scotland, to the Court of Session,

on a point of law arising from a decision of the Tribunal disposing of the
reference.
(2)
“Permission” means permission given by—
(a)
the Tribunal, or
30
(b)
if it is refused by the Tribunal, by the Court of Appeal or, in Scotland,
the Court of Session.
(3)
If, on an appeal under subsection (1), the court considers that the decision of
the Tribunal was wrong in law, it may—
(a)
remit the matter to the Tribunal for rehearing and determination by it
35
under section 77, or
(b)
itself make a determination.
(4)
An appeal may not be brought from a decision of the Court of Appeal under
subsection (3) except with the leave of—
(a)
the Court of Appeal, or
40
(b)
the House of Lords.
(5)
An appeal lies, with the leave of the Court of Session or the House of Lords,
from any decision of the Court of Session under this section, and such leave

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may be given on such terms as to costs, expenses or otherwise as the Court of
Session or the House of Lords may determine.
(6)
The Lord Chancellor may by rules make provision for regulating or
prescribing any matters incidental to or consequential on an appeal under this
section.
5
79
Redetermination etc by the Tribunal
(1)
This section applies where an application is made to the Tribunal for
permission to appeal under section 78(2)(a) from a decision of the Tribunal
disposing of a reference.
(2)
If the person who constitutes, or is the chairman of, the Tribunal for the
10
purposes of dealing with that application considers that the decision of the
Tribunal disposing of the reference was wrong in law, he may set aside the
decision and refer the matter—
(a)
for rehearing and redetermination by the Tribunal under section 77, or
(b)
for rehearing and determination under that section by a differently
15
constituted Tribunal.
80
Legal assistance scheme
(1)
The Lord Chancellor may by regulations establish a scheme governing the
provision of legal assistance in connection with proceedings before the
Tribunal.
20
(2)
The legal assistance scheme may, in particular, make provision as to—
(a)
the kinds of legal assistance that may be provided;
(b)
the persons by whom legal assistance may be provided;
(c)
the manner in which applications for legal assistance are to be made;
(d)
the criteria on which eligibility for legal assistance is to be determined;
25
(e)
the persons or bodies by whom applications are to be determined;
(f)
appeals against refusals of applications;
(g)
the revocation or variation of decisions;
(h)
its administration and the enforcement of its provisions.
(3)
Legal assistance under the scheme may be provided subject to conditions or
30
restrictions.
(4)
Those conditions may include conditions as to the making of contributions by
the person to whom the assistance is provided.
(5)
The Lord Chancellor must fund, out of money provided by Parliament, the costs of the
scheme including the costs of legal assistance provided under it.
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(6)
In this Part “the legal assistance scheme” means any scheme in force by virtue
of subsection (1).