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Lord Elton: Before the noble and learned Lord, Lord Simon of Glaisdale, is tempted to take up that challenge, I hope that the Committee will take note that we are speaking to Amendment No. 30, which is not grouped with any other. We seem to be trembling on the brink of a debate on major issues of criminality. There is no criminality involved in relation to this subsection. I am sure it is useful to have this smoke signal telling us what is coming over the horizon on the Bill. But I hope that the Committee will not start to get too excited about this amendment because the issue seems to be quite different.

Baroness Hollis of Heigham: I am sorry that the noble Lord felt obliged to make those remarks. I made it very clear that this amendment was being used as, in the phrase of the noble Baroness, Lady Seear, a marker, and in my own phrase, a hook, concerning the degree to which this Bill will be developed by the regulatory procedure. All the organisations, without any exception, said that they are extremely concerned at the degree to which this Bill will be understood in terms of its regulatory procedure. This is the first of many such instances. It seemed appropriate under the circumstances to make the general points before going on in subsequent amendments to deal with the specific.

The Earl of Buckinghamshire: My name is attached to this amendment. I am quite sure that my noble friend the Minister will deal with regulatory powers as a separate issue. Perhaps I may concentrate on Amendment No. 30. In what prescribed circumstances do the Government intend using the powers under this amendment? I have heard that possibly the regulation-making power may be used to limit the circumstances under which trustees can be appointed by OPRA to ensure that this power is used only in the last resort. I shall be very interested to hear what the Minister has to say on this point.

Lord Mackay of Ardbrecknish: I, too, wondered whether we were about to stumble into a general debate on this matter just before the dinner hour. It is not the first time that it has been raised. I raised it a short time

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ago in replying to Amendments Nos. 28, 35 etc. and in particular Amendment No. 40, when I drew the attention of the Committee to what the Delegated Powers Scrutiny Committee had suggested. I indicated that I was prepared to look at what the Committee had said and see what other options were available with a view to bringing forward a suitable amendment, if appropriate, in order to accommodate the points that were made by the Scrutiny Committee.

The noble Baroness, Lady Hollis, rightly said that there are a considerable number of instances in this Bill where regulations are referred to. As we said in our memorandum to the Scrutiny Committee and freely admitted, the Bill imposes a number of substantial new requirements on pension schemes and makes a number of changes to existing requirements. Given the complexity and variety of schemes, the requirements will necessarily require detailed provisions. It would be inappropriate to attempt to deal with every aspect of such requirements for every circumstance by means of primary legislation. To do so, with all the variants that would be needed, would produce primary legislation of great complexity, length and detail; and it would still be impossible to be sure that all possible variants, now and for the future, had been covered. In addition, the Government have no wish to restrict unnecessarily the flexibility which the schemes have built into them or to impose unreasonable restraints on how they are run or developed to meet individual needs.

I accept that there are a fair number of regulations forecast or prophesied. The complexity of the issues and the complexity of the Bill are such that to try to deal with everything under primary legislation would make for a very large and pretty unwieldy piece of legislation. It would also build in to the pensions industry an inflexibility for which people might not thank us in future years. We shall no doubt discuss those and other points. When we come to points to which the Scrutiny Committee has drawn our attention, I shall be looking at them very seriously indeed.

This amendment relates to the authority's power to appoint trustees. Given the expense that an additional trustee may impose on a scheme, rather than give the authority an unfettered power to appoint trustees in any circumstances, we have sought to specify on the face of the Bill the situations in which we believe that the power to appoint could be exercised. The flexibility to add to that list of circumstances through regulation is needed, we believe, in case in the light of experience there are other situations in which it would be desirable for the authority to be able to appoint a trustee to a scheme.

For that reason I certainly would not be able to accept Amendment No. 30. I hope that the noble Baroness and other noble Lords will not see anything sinister in that but will appreciate the important need—not just today but in the future—for us to be able to act quickly if we find that steps need to be taken to help protect pension schemes.

Baroness Hollis of Heigham: I do not believe that anybody denies that a fair proportion of detailed regulation needs to be carried through by those powers.

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This may or may not be an appropriate one. I do not feel strongly about this amendment. However, many of us, and certainly people outside this Chamber, are extremely worried, on the one hand, about the degree to which the Government are hugging to themselves powers through the regulatory procedure—there are 200 such powers in this Bill—and, on the other hand, about their refusal to share, by putting on the face of the Bill the responsibilities of the regulator and empowering it to perform activities, give out codes of guidance and so on, to steer those trustees who have to bring up their schemes to best practice. The discrepancy is noteworthy between what the Government are hugging to themselves and their reluctance to clarify the main principles of the Bill and the powers and functions going to the major regulatory bodies. Certainly, it is a source of major concern to organisations outside.

As I said, this is not a major measure but it is the first of the substantial ones to which the Minister drew attention and which I mentioned when I moved the amendment. We shall come back to it and seek agreement, in the circumstances that I have outlined, that such powers should be on the face of the Bill and not handled by regulation. With the leave of the Committee, I should like to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas: This may be a convenient moment for the Committee to adjourn. I beg to move that the Committee be adjourned and begin again at 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.42 to 8.30 p.m.]

The Earl of Buckinghamshire moved Amendment No. 31:

Page 3, line 44, after ("paid") insert ("reasonable").

The noble Earl said: Clause 6(5) ensures that where the authority appoints a trustee to a scheme, the scheme must pay his fees and expenses. The purpose of Amendment No. 31 is to insert the word "reasonable" into the clause to ensure that there is recourse to law if the fees charged by the new trustee are too high, or the expense is considered to be excessive.

The reason for the amendment is quite clear. It is fair and reasonable that a trustee should be properly reimbursed for any work that is carried out by him. But the way the clause is presently worded would leave the scheme vulnerable to excessive fees being charged by that new trustee. By inserting the word "reasonable" into the Bill, we give the scheme recourse to law if it were to find itself in a situation where it was expected to pay excessive amounts to a trustee appointed by the regulatory authority.

I believe Amendment No. 31 to be a "reasonable" amendment. It is not sensible to include in the Bill a clause which allows any trustee or professional person to levy fees, charges or expenses without any controls being in place. I suppose the Government will say that the controls exist because if a trustee or professional person levied excessive charges he would never be re-employed. That is scant comfort. As the Committee is aware, I am in the

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profession and feel that it is important that some control should be inserted into the wording of the Bill in order to control fees. I beg to move.

Lord Haskel: I rise to support the amendment. This is a situation which may easily be exploited by an unscrupulous person. It is only right that the word "reasonable" should be inserted to prevent it.

Lord Mackay of Ardbrecknish: I suppose this amendment could be looked on as "reasonable". But what is "reasonable"? We may find ourselves debating that issue for quite a long time.

I fully understand and appreciate the point being made by my noble friend Lord Buckinghamshire and the support he received from the noble Lord, Lord Haskel. My noble friend said that he supposed—giving half my answer before I stood up—that I would say that the trustee would never again be put into a trust by the authority. Indeed, that was my second line of defence.

My first line of defence is that the authority will be free to remove a trustee it appointed if it believes that the fees the trustee charges are not reasonable. It is therefore a little more than belt; it is belt and braces. Not only would the trustee not be employed again if he tried to charge unreasonable fees, but also he could be removed by the authority in those circumstances.

While I appreciate the argument of my noble friend, I hope that with those words on the record he will feel reassured that no one will be able to be appointed as a trustee by the authority and then charge exorbitant fees to the pension fund for his trusteeship. In those circumstances, the authority would certainly act to protect that pension fund and not reappoint the trustee again. I hope that with those words of reassurance my noble friend will be able to withdraw the amendment.

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