Pensions Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Pensions Bill

Pensions Bill
Part 1 — The Pensions Regulator
56

80
Procedure for issue and publication of codes of practice
(1)
Where the Regulator proposes to issue a code of practice it must prepare and
publish a draft of the code.
(2)
Where the Regulator publishes a draft under subsection (1), it must consult—
(a)
such persons as it considers appropriate, and
5
(b)
any other persons the Secretary of State requires it to consult.
(3)
Having considered any representations made on the draft, the Regulator must
make such modifications to it as it considers appropriate.
(4)
Subsections (2) and (3) do not apply—
(a)
to a code made for the purpose only of consolidating other codes issued
10
under section 79, or
(b)
to a code if the Secretary of State considers consultation inexpedient by
reason of urgency.
(5)
If the Regulator determines to proceed with a draft, it must send it to the
Secretary of State who—
15
(a)
if he approves of it, must lay it before Parliament, and
(b)
if he does not approve of it, must publish details of his reasons for
withholding approval.
(6)
Where a draft is laid before Parliament under subsection (5)(a)—
(a)
if within the period mentioned in subsection (7) either House so
20
resolves, no further proceedings may be taken on the draft code,
(b)
if no such resolution is passed, the Regulator must issue the code in the
form of the draft.
(7)
The period referred to in subsection (6)(a) is the period of 40 days—
(a)
beginning with the day on which the draft is laid before Parliament (or,
25
if it is laid before the two Houses on different days, with the later of the
two days), and
(b)
ignoring any period during which Parliament is dissolved or
prorogued or during which both Houses are adjourned for more than
four days.
30
(8)
The fact that no further proceedings may be taken on a draft code in accordance
with subsection (6)(a) does not prevent the laying of a new draft.
(9)
A code issued in accordance with subsection (6)(b) shall come into effect on
such day as the Secretary of State may by order appoint.

Without prejudice to section 272, such an order may contain such transitional
35
provisions or savings as appear to the Secretary of State to be necessary or
expedient in connection with the code of practice brought into operation.
(10)
The Regulator must arrange for any code issued by it under section 79 to be
published in the way appearing to it to be appropriate.
(11)
The Regulator may charge a reasonable fee for providing a person with a copy
40
of a code published under this section.
(12)
This section applies to a revised code as it applies to the first issue of a code.

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81
Revocation of codes of practice
(1)
A code of practice may be revoked by the Secretary of State by order.
(2)
An order under this section may be made only with the consent of the
Regulator.
(3)
Without prejudice to section 272, an order under this section may contain such
5
savings as appear to the Secretary of State to be necessary or expedient in
connection with the revocation of the code.
Exercise of regulatory functions
82
The Regulator’s procedure in relation to its regulatory functions
(1)
The Regulator must determine the procedure that it proposes to follow in
10
relation to the exercise of its regulatory functions.
(2)
For the purposes of this Part the “regulatory functions” of the Regulator are—
(a)
the power to issue an improvement notice under section 14,
(b)
the power to issue a third party notice under section 15,
(c)
the reserved regulatory functions (see Schedule 2),
15
(d)
the power to vary or revoke under section 90 (to the extent that it does
not fall within paragraph (c)),
(e)
the power by direction under section 2(3)(a) of the Welfare Reform and
Pensions Act 1999 (c. 30) to refuse to register a scheme under section 2
of that Act,
20
(f)
the power to make an order under section 7 of the Pensions Act 1995
(c. 26) appointing a trustee (to the extent that it does not fall within
paragraph (c)),
(g)
the power to give directions under section 72B of that Act (directions
facilitating winding up), and
25
(h)
such other functions of the Regulator as may be prescribed.
(3)
The Determinations Panel must determine the procedure to be followed by it
in relation to any exercise by it on behalf of the Regulator of—
(a)
the power to determine whether to exercise a regulatory function, and
(b)
where the Panel so determines to exercise a regulatory function, the
30
power to exercise the function in question.
(4)
The procedure determined under this section—
(a)
must provide for the procedure required under—
(i)
section 85 (standard procedure), and
(ii)
section 87 (special procedure), and
35
(b)
may include such other procedural requirements as the Regulator or, as
the case may be, the Panel considers appropriate.
(5)
This section is subject to—
(a)
sections 88 to 93 (the remaining provisions concerning the procedure in
relation to the regulatory functions), and
40
(b)
any regulations made by the Secretary of State under paragraph 19 of
Schedule 1.

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83
Publication of procedure in relation to regulatory functions
(1)
The Regulator must issue a statement of the procedure determined under
section 82.
(2)
The Regulator must arrange for the statement to be published in the way
appearing to it to be appropriate.
5
(3)
The Regulator may charge a reasonable fee for providing a person with a copy
of the statement.
(4)
If the procedure determined under section 82 is changed in a material way, the
Regulator must publish a revised statement.
(5)
The Regulator must, without delay, give the Secretary of State a copy of any
10
statement which it issues under this section.
84
Application of standard and special procedure
(1)
The Regulator must comply with the standard procedure (see section 85) or,
where section 86 applies, the special procedure (see section 87) in a case
where—
15
(a)
the Regulator considers that the exercise of one or more of the
regulatory functions may be appropriate, or
(b)
an application is made under or by virtue of any of the provisions listed
in section 11(6) for the Regulator to exercise a reserved regulatory
function.
20
(2)
For the purposes of section 85, references to the regulatory action under
consideration in a particular case are—
(a)
in a case falling within subsection (1)(a), references to the exercise of the
one or more regulatory functions which the Regulator considers that it
may be appropriate to exercise, and
25
(b)
in a case falling within subsection (1)(b), references to the exercise of the
reserved regulatory function which is the subject-matter of the
application.
(3)
Neither section 85 (standard procedure) nor section 87 (special procedure)
apply in relation to a determination whether to exercise a regulatory function
30
on a review under section 88 (compulsory review of regulatory action).
85
Standard procedure
(1)
The procedure determined under section 82 must make provision for the
standard procedure.
(2)
The “standard procedure” is a procedure which provides for—
35
(a)
the giving of notice to such persons as it appears to the Regulator
would be directly affected by the regulatory action under consideration
(a “warning notice”),
(b)
those persons to have an opportunity to make representations,
(c)
the consideration of any such representations and the determination
40
whether to take the regulatory action under consideration,
(d)
the giving of notice of the determination to such persons as appear to
the Regulator to be directly affected by it (a “determination notice”),

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(e)
the determination notice to contain details of the right of referral to the
Tribunal under subsection (3),
(f)
the form and further content of warning notices and determination
notices and the manner in which they are to be given, and
(g)
the time limits to be applied at any stage of the procedure.
5
(3)
Where the standard procedure applies, the determination which is the subject-
matter of the determination notice may be referred to the Tribunal (see section
91) by—
(a)
any person to whom the determination notice is given as required
under subsection (2)(d), and
10
(b)
any other person who appears to the Tribunal to be directly affected by
the determination.
(4)
Where that determination is a determination to exercise a regulatory function,
the Regulator must not exercise the function—
(a)
during the period within which the determination may be referred to
15
the Tribunal (see section 92(1)), and
(b)
if the determination is so referred, until the reference, and any appeal
against the Tribunal’s determination, has been finally disposed of.
(5)
Subsection (4) does not apply where the determination is a determination to
exercise any of the following functions—
20
(a)
the power to make a direction under section 65(8) extending the
retention period for documents taken into possession under section 64;
(b)
the power to make a direction under section 67(8) extending the
retention period for documents taken into possession under that
section;
25
(c)
the power to make an order under section 3(1) 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(1) of that Act suspending
30
a trustee;
(f)
the power to make an order under section 4(2) of that Act extending the
period for which an order under section 4(1) of that Act has effect;
(g)
the power to make an order under section 4(5) of that Act revoking an
order under section 4(1) of that Act suspending a trustee;
35
(h)
the power to make an order under section 7 of that Act appointing a
trustee;
(i)
the power under section 9 of that Act to exercise by order the same
jurisdiction and powers as the High Court or the Court of Session for
vesting property in, or transferring property to, trustees in consequence
40
of the appointment or removal of a trustee;
(j)
the power under section 29(5) of that Act to give a notice waiving a
disqualification under section 29 of that Act;
(k)
the power under section 30(2) of that Act to exercise by order the same
jurisdiction and powers as the High Court or the Court of Session for
45
vesting property in, or transferring property to, the trustees where a
trustee becomes disqualified under section 29 of that Act;
(l)
the power to give directions under section 72B of that Act facilitating a
winding up;

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(m)
the power by direction under section 99(4) of the Pension Schemes Act
1993 (c. 48) to grant an extension of the period within which the trustees
or managers of a scheme are to carry out certain duties;
(n)
the power by direction under section 101J(2) of that Act to extend the
period for compliance with a transfer notice;
5
(o)
such other regulatory functions as may be prescribed;
(p)
the power under section 90 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 (o) other than those
mentioned in paragraph (d) or (g).
10
86
Special procedure: applicable cases
(1)
The special procedure in section 87 (and not the standard procedure) applies
to—
(a)
a case falling within subsection (2),
(b)
a case falling within subsection (3), and
15
(c)
a case falling within subsection (4).
(2)
A case falls within this subsection if—
(a)
the Regulator considers that it may be necessary to exercise a
regulatory function listed in subsection (5) immediately because there
is, or the Regulator considers it likely that if a warning notice were to
20
be given 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,
(b)
the Regulator accordingly dispenses with the giving of a warning
25
notice and an opportunity to make representations as described in
section 85(2)(a) and (b), and
(c)
the Regulator determines to exercise the function 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
30
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.
(3)
A case falls within this subsection if—
35
(a)
the Regulator gives a warning notice as described in section 85(2)(a) in
relation to a determination whether to exercise a regulatory function
listed in subsection (5), and
(b)
before it has considered the representations of those persons to whom
the warning notice is given, the Regulator determines to exercise the
40
function 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—
(i)
the interests of members under an occupational or personal
pension scheme, or
45
(ii)
the assets of such a scheme.
(4)
A case falls within this subsection if the Regulator—

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(a)
gives a warning notice as described in section 85(2)(a) in relation to a
determination whether to exercise a regulatory function which—
(i)
is listed in subsection (5), and
(ii)
is not a function listed in section 85(5) (functions which may be
exercised immediately under the standard procedure),
5
(b)
considers the representations of those persons to whom the warning
notice is given, and
(c)
determines to exercise the function 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
10
immediate risk to—
(i)
the interests of members under an occupational or personal
pension scheme, or
(ii)
the assets of such a scheme.
(5)
The regulatory functions referred to in subsections (2), (3) and (4) are—
15
(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
contravention of a freezing order;
20
(d)
the power to make an order under section 25 directing that specified
steps are taken;
(e)
the power to make an order under section 27 giving a direction where
a freezing order ceases to have effect;
(f)
the power to make an order under section 28(3) directing the
25
notification of members;
(g)
the power to make an order under section 212 modifying a scheme,
giving directions or imposing a schedule of contributions;
(h)
the power to make an order under section 3(1) of the Pensions Act 1995
(c. 26) prohibiting a person from being a trustee;
30
(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(1) of that Act suspending
a trustee;
(k)
the power to make an order under section 4(5) of that Act revoking such
35
an order;
(l)
the power to make an order under section 7 of that Act appointing a
trustee;
(m)
the power under section 9 of that Act to exercise by order the same
jurisdiction and powers as the High Court or the Court of Session for
40
vesting property in, or transferring property to, trustees in consequence
of the appointment or removal of a trustee;
(n)
the power to make an order under section 11 of that Act directing or
authorising an occupational pension scheme to be wound up;
(o)
the power under section 29(5) of that Act to give a notice waiving a
45
disqualification under section 29 of that Act;
(p)
the power under section 30(2) of that Act to exercise by order the same
jurisdiction and powers as the High Court or the Court of Session for
vesting property in, or transferring property to, the trustees where a
trustee becomes disqualified under section 29 of that Act;
50
(q)
such other regulatory functions as may be prescribed;

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(r)
the power under section 90 to vary or revoke any order or notice made
or given in the exercise of any of the regulatory functions mentioned in
paragraphs (a) to (q) other than those mentioned in paragraph (i) or (k).
87
Special procedure
(1)
The procedure determined under section 82 must make provision for the
5
special procedure.
(2)
The “special procedure” is a procedure which provides for—
(a)
the giving of notice of the determination to exercise the regulatory
function to such persons as appear to the Regulator to be directly
affected by it (a “determination notice”),
10
(b)
the determination notice to contain details of the requirement for the
Regulator to review the determination under section 88(1) and of any
subsequent right of referral to the Tribunal under section 88(7),
(c)
the persons to whom the determination notice was given (as required
under paragraph (a)) to have an opportunity to make representations
15
in relation to the determination before it is reviewed under section
88(1),
(d)
the consideration of any such representations before the determination
on the review,
(e)
the giving of a notice in accordance with section 88(4) of the
20
determination on the review (a “final notice”),
(f)
the final notice to contain details of the right of referral to the Tribunal
under section 88(7),
(g)
the form and further content of determination notices and final notices
and the manner in which they are to be given, and
25
(h)
the time limits to be applied at any stage of the procedure.
88
Compulsory review
(1)
In a case where the special procedure applies, the Regulator must review the
determination to exercise the regulatory function.
(2)
The review must be determined as soon as reasonably practicable.
30
(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
given as a result of the determination,
(c)
substitute a different determination, order, notice or direction,
35
(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.
(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
40
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
notice, then the final notice may not be given unless—