Amendments proposed to the Pensions Bill - continued	House of Commons
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Publishing reports

   

Malcolm Wicks

NC31

To move the following Clause:—

    '(1)   The Board may, if it considers it appropriate to do so in any particular case, publish a report of the exercise of, or any matter arising out of or connected with the exercise of, any of its functions in that case.

    (2)   The publication of a report under subsection (1) may be in such form and manner as the Board considers appropriate.

    (3)   For the purposes of the law of defamation, the publication of any matter by the Board is privileged unless the publication is shown to be made with malice.'.

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No indemnification for fines or civil penalties

   

Malcolm Wicks

NC32

To move the following Clause:—

    '(1)   No amount may be paid out of the assets of an occupational or personal pension scheme for the purpose of reimbursing, or providing for the reimbursement of, any trustee or manager of the scheme in respect of—

(a)	a fine imposed by way of penalty for an offence of which he is convicted, or

(b)	a penalty which he is required to pay under or by virtue of section 10 of the Pensions Act 1995 (c.26) or section 168(4) of the Pension Schemes Act 1993 (c.48) (civil penalties).

    (2)   For the purposes of subsection (1), providing for the reimbursement of a trustee or manager in respect of a fine or penalty includes (among other things) providing for the payment of premiums in respect of a policy of insurance where the risk is or includes the imposition of such a fine or the requirement to pay such a penalty.

    (3)   Where any amount is paid out of the assets of an occupational or personal pension scheme in contravention of this section, section 10 of the Pensions Act 1995 (c.26) (civil penalties) applies to any trustee or manager who fails to take all reasonable steps to secure compliance.

    (4)   Where a trustee or manager of an occupational or personal pension scheme—

(a)	is reimbursed, out of the assets of the scheme or in consequence of provision for his reimbursement made out of those assets, in respect of any of the matters mentioned in subsection (1)(a) or (b), and

(b)	knows, or has reasonable grounds to believe, that he has been reimbursed as mentioned in paragraph (a),

then, unless he has taken all reasonable steps to secure that he is not so reimbursed, he is guilty of an offence.

    (5)   A person guilty of an offence under subsection (4) is liable—

(a)	on summary conviction, to a fine not exceeding the statutory maximum, and

(b)	on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.'.

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Increase in age at which short service benefit must be payable

   

Malcolm Wicks

NC33

To move the following Clause:—

    '(1)   In section 71 of the Pension Schemes Act 1993 (c.48) (basic principle as to short service benefit), for subsection (3) substitute—

    "(3)   Subject to subsection (4), short service benefit must be made payable as from an age which is no greater than—

(a)	the age of 65, or

(b)	if in the member's case normal pension age is greater than 65, normal pension age."

    (2)   In section 72 of that Act (no discrimination between short service and long service beneficiaries), at the end add—

    "(4)   This section is subject to subsections (3) and (6) of section 71 (age at which short service benefit is to be payable).".'.

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Consultation by employers: occupational pension schemes

   

Malcolm Wicks

NC34

To move the following Clause:—

    '(1)   Regulations may require any prescribed person who is the employer in relation to an occupational pension scheme and who—

(a)	proposes to make a prescribed decision in relation to the scheme, or

(b)	has been notified by the trustees or managers of the scheme that they propose to make a prescribed decision in relation to the scheme,

to consult prescribed persons in the prescribed manner before the decision is made.

    (2)   Regulations may require the trustees or managers of an occupational pension scheme not to make a prescribed decision in relation to the scheme unless—

(a)	they have notified the employer of the proposed decision, and

(b)	they are satisfied that the employer has undertaken any consultation required by virtue of subsection (1).

    (3)   The validity of any decision made in relation to an occupational pension scheme is not affected by any failure to comply with regulations under this section.

    (4)   Section (Further provisions about regulations relating to consultation by employers) contains further provisions about regulations under this section.'.

As an Amendment to Malcolm Wicks' proposed New Clause (NC34) (Consultation by employers: occupational pension schemes):

   

Mr David Willetts
Mr Nigel Waterson
Mr George Osborne
Mr Peter Atkinson
Gregory Barker

(a)

Line     21,     at end add—

    '(5)   A prescribed decision for these purposes is defined as one of the following:

(a)	closing a scheme to future accruals;

(b)	closing a scheme to new members;

(c)	changing from a defined benefits to a defined contribution basis;

(d)	significantly reducing or removing an employer contribution to a defined contribution scheme.

    (6)   The prescribed persons to be consulted hereunder will not include trade unions where an employer has established procedures for directly consulting employees in an alternative manner.'.

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Consultation by employers: personal pension schemes

   

Malcolm Wicks

NC35

To move the following Clause:—

    '(1)   Regulations may require any prescribed person who—

(a)	is the employer in relation to a personal pension scheme where direct payment arrangements exist in respect of one or more members of the scheme who are his employees, and

(b)	proposes to make a prescribed decision affecting the application of the direct payment arrangements in relation to those employees,

       to consult prescribed persons in the prescribed manner before he makes the decision.

    (2)   The validity of any decision prescribed for the purposes of subsection (1)(b) is not affected by any failure to comply with regulations under this section.

    (3)   Section (Further provisions about regulations relating to consultation by employers) contains further provisions about regulations under this section.'.

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Further provisions about regulations relating to consultation by employers

   

Malcolm Wicks

NC36

To move the following Clause:—

    '(1)   In this section "consultation regulations" means regulations under section (Consultation by employers: occupational pension schemes) or (Consultation by employers: personal pension schemes).

    (2)   Consultation regulations may—

(a)	make provision about the time to be allowed for consultation;

(b)	prescribe the information which must be provided to the persons who are required to be consulted;

(c)	confer a discretion on the employer in prescribed cases as to the persons who are to be consulted;

(d)	make provision about the representatives the employees may have for the purposes of the regulations and the methods by which those representatives are to be selected;

(e)	require or authorise the holding of ballots;

(f)	amend, apply with or without modifications, or make provision similar to, any provision of the Employment Rights Act 1996 (c.18) (including, in particular, Parts 5, 10 and 13), the Employment Tribunals Act 1996 (c.17) or the Trade Union and Labour Relations (Consolidation) Act 1992 (c.52);

(g)	enable any requirement for consultation imposed by the regulations to be waived or relaxed by order of the Regulator;

(h)	require the employer to communicate to the trustees and managers of the scheme any representations received by the employer in response to any consultation required by the regulations.

    (3)   Persons on whom obligations are imposed by consultation regulations, either as employers or as the trustees or managers of occupational pension schemes, must, if so required by the Regulator, provide information to the Regulator about the action taken by them for the purpose of complying with the regulations.

    (4)   Consultation regulations may make provision as to—

(a)	the information to be provided under subsection (3);

(b)	the form and manner in which the information is to be provided;

(c)	the period within which the information is to be provided.

    (5)   Nothing in consultation regulations is to be regarded as affecting any duty to consult arising otherwise than under the regulations.'.

As Amendments to Malcolm Wicks' proposed New Clause (NC36) (Further provisions about regulations relating to consultation by employees):

   

Mr David Willetts
Mr Nigel Waterson
Mr George Osborne
Mr Peter Atkinson
Gregory Barker

(a)

Line     13,     after 'ballots', insert 'where it is necessary for the purpose of selecting employee representatives.'.

   

Mr David Willetts
Mr Nigel Waterson
Mr George Osborne
Mr Peter Atkinson
Gregory Barker.

(b)

Line     34,     at end add—

    '(6)   The discretion on an employer as to the persons who are to be consulted in subsection (2)(c) above shall be mandatory in cases where an employer has existing arrangements in place for direct consultation with employees.'.

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Independent trustees

   

Malcolm Wicks

NC38

To move the following Clause:—

    '(1)   Part 1 of the Pensions Act 1995 (occupational pension schemes) is amended as follows.

    (2)   In section 22 (circumstances in which provisions relating to independent trustees apply)—

(a)	in subsection (1)(b) omit "or" at the end of sub-paragraph (i) and after that sub-paragraph insert—

"(ia)

the interim receiver of the property of a person who is the employer in relation to the scheme, or",

(b)	in subsection (2), after "a scheme" insert "by virtue of subsection (1)",

(c)	after subsection (2) insert—

    "(2A)   To the extent that it does not already apply by virtue of subsection (1), this section also applies in relation to a trust scheme—

(a)	at any time during an assessment period (within the meaning of section 104 of the Pensions Act 2004) in relation to the scheme, and

(b)	at any time, not within paragraph (a), when the scheme is authorised under section [schemes required to wind up but unable to buy out liabilities] of that Act (schemes required to wind up but unable to buy out liabilities) to continue as a closed scheme.", and

(d)	after subsection (2A) (inserted by paragraph (c) above) insert—

    "(2B)   The responsible person must, as soon as reasonably practicable, give notice of an event within subsection (2C) to—

(a)	the Authority,

(b)	the Board of the Pension Protection Fund, and

(c)	the trustees of the scheme.

    (2C)   The events are—

(a)	the practitioner beginning to act as mentioned in subsection (1)(a), if immediately before he does so this section does not apply in relation to the scheme;

(b)	the practitioner ceasing to so act, if immediately after he does so this section does not apply in relation to the scheme;

(c)	the official receiver beginning to act in a capacity mentioned in subsection (1)(b)(i), (ia) or (ii), if immediately before he does so this section does not apply in relation to the scheme;

(d)	the official receiver ceasing to act in such a capacity, if immediately after he does so this section does not apply in relation to the scheme.

    (2D)   For the purposes of subsection (2B) "the responsible person" means—

(a)	in the case of an event within subsection (2C)(a) or (b) the practitioner, and

(b)	in the case of an event within subsection (2C)(c) or (d), the official receiver.

    (2E)   Regulations may require prescribed persons in prescribed circumstances where this section begins or ceases to apply in relation to a trust scheme by virtue of subsection (2A) to give a notice to that effect to—

(a)	the Authority,

(b)	the Board of the Pension Protection Fund, and

(c)	the trustees of the scheme.

    (2F)   A notice under subsection (2B), or regulations under subsection (2E), must be in writing and contain such information as may be prescribed."

    (3)   For sections 23 and 24 (appointment of independent trustees) substitute—

    23 Power to appoint independent trustees

    (1)   While section 22 applies in relation to a trust scheme, the Authority may by order appoint as a trustee of the scheme a person who—

(a)	is an independent person in relation to the scheme, and

(b)	is registered in the register maintained by the Authority in accordance with regulations under subsection (4).

    (2)   In relation to a particular trust scheme, no more than one trustee may at any time be an independent trustee appointed under subsection (1).

    (3)   For the purposes of this section a person is independent in relation to a trust scheme only if—

(a)	he has no interest in the assets of the employer or of the scheme otherwise than as trustee of the scheme,

(b)	he is neither connected with, nor an associate of—

(i)	the employer,

(ii)	any person for the time being acting as an insolvency practitioner in relation to the employer, or

(iii)

the official receiver acting in any of the capacities mentioned in section 22(1)(b) in relation to the employer, and

(c)	he satisfies any prescribed requirements;

and any reference in this Part to an independent trustee is to be construed accordingly.

    (4)   Regulations must provide for the Authority to compile and maintain a register of persons who satisfy the prescribed conditions for registration.

    (5)   Regulations under subsection (4) may provide—

(a)	for copies of the register or of extracts from it to be provided to prescribed persons in prescribed circumstances;

(b)	for the inspection of the register by prescribed persons in prescribed circumstances.

    (6)   The circumstances which may be prescribed under subsection (5)(a) or (b) include the payment by the person to whom the copy is to be provided, or by whom the register is to be inspected, of such reasonable fee as may be determined by the Regulator.

    (7)   This section is without prejudice to the powers conferred by section 7."

    (4)   In section 25 (appointment and powers of independent trustees: further provision)—

(a)	for subsection (4)(a) substitute—

"(a)	he must as soon as reasonably practicable give written notice of that fact to the Authority, and",

(b)	after subsection (5) insert—

    "(5A)   Section 10 applies to any person who, without reasonable excuse, fails to comply with subsection (4)(a).", and

(c)	for subsection (6) substitute—

    "(6)   An order under section 23(1) may provide for any fees and expenses of the trustee appointed under the order to be paid—

(a)	by the employer,

(b)	out of the resources of the scheme, or

(c)	partly by the employer and partly out of those resources.

    (7)   Such an order may also provide that an amount equal to the amount (if any) paid out of the resources of the scheme by virtue of subsection (6)(b) or (c) is to be treated for all purposes as a debt due from the employer to the trustees of the scheme.

    (8)   Where, by virtue of subsection (6)(b) or (c), an order makes provision for any fees or expenses of the trustee appointed under the order to be paid out of the resources of the scheme, the trustee is entitled to be so paid in priority to all other claims falling to be met out of the scheme's resources."'.

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Prepared 27 Apr 2004