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Baroness Seear: I must say that I find the Minister's response most astonishing. To have a pension trust scheme without a pensioner on it is surely "Hamlet" without the prince writ large. What is it for, except pensioners? Why on earth—

Lord Mackay of Ardbrecknish: I am sorry to interrupt the noble Baroness but I cannot allow her to get away with that remark. That is not what I said. The noble Baroness wants to make the position a mandatory one in respect of pensioners. Nothing in my speech could possibly have been interpreted as meaning that I

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do not approve of pensioners being trustees. What I do not approve of is the fact that, under the amendment, they would have a mandatory place on trust schemes.

Baroness Seear: I understand that, but the Minister has left the matter in such a way that the producer of the play is still free to leave out Hamlet. That is my contention. It should be a mandatory requirement for a pensioner to be on the trust scheme. That is the difference between us. The Minister said that if a pensioner gets there, then that is fine and he would have no objection. However, we are saying that this is a scheme for pensions and, to say the least, it seems odd that there should not be a pensioner on the trustee board.

I hope that we do not have to say at every stage of the Bill that we accept that pensioners do not represent interests. Indeed, we have accepted that fact at least three times during our debates this afternoon. I hope that we shall not have to do so again. However, we are saying that pensioners have an approach, the knowledge and the experience of how the scheme is working that is not available to those who are still working or to someone who is an employer. Their experience is different and such experience is well worth having.

I do not accept the Minister's contention that protection against victimisation is sufficient for the people who are already there. A wink is as good as a nod to a blind man. You do not have to tell the member of the trust scheme that he is out if he does not go along with what the employer wants. It is very easy for an employee member to sense what the feeling is and to hold back from the kinds of suggestions and criticisms that he would otherwise make for fear of what the consequences might be. The pensioner is in no such position. He has a freedom to speak that the working member does not have. I believe that all the points at issue have been put most clearly. I must test the opinion of the Committee.

4.27 p.m.

On Question, Whether the said amendment (No. 109A) shall be agreed to?

Their Lordships divided: Contents, 115; Not-Contents, 131.

Division No. 2


Acton, L.
Addington, L.
Airedale, L.
Allen of Abbeydale, L.
Archer of Sandwell, L.
Avebury, L.
Barnett, L.
Beaumont of Whitley, L.
Blackstone, B.
Bottomley, L.
Bridges, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L.
Castle of Blackburn, B.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Craigavon, V.
Darcy (de Knayth), B.
David, B.
Dean of Beswick, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Diamond, L.
Donaldson of Kingsbridge, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Erroll, E.
Ezra, L. [Teller.]
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Fitt, L.
Foot, L.
Freyberg, L.
Gallacher, L.
Gladwyn, L.
Glenamara, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greene of Harrow Weald, L.
Grey, E.
Halsbury, E.
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Healey, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Houghton of Sowerby, L.
Howie of Troon, L.
Hughes, L.
Jacques, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Lawrence, L.
Lester of Herne Hill, L.
Listowel, E.
Lockwood, B.
Longford, E.
Lovell-Davis, L.
Mallalieu, B.
Mason of Barnsley, L.
Mayhew, L.
McCarthy, L.
McIntosh of Haringey, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Morris of Kenwood, L.
Nelson, E.
Nicol, B.
Ogmore, L.
Peston, L.
Plant of Highfield, L.
Prys-Davies, L.
Redesdale, L.
Richard, L.
Ritchie of Dundee, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Sainsbury, L.
Seear, B. [Teller.]
Sefton of Garston, L.
Serota, B.
Shaughnessy, L.
Shepherd, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tordoff, L.
Turner of Camden, B.
Varley, L.
Wallace of Coslany, L.
Wedderburn of Charlton, L.
White, B.
Williams of Crosby, B.
Williams of Elvel, L.
Winchilsea and Nottingham, E.


Aberdare, L.
Ailsa, M.
Aldington, L.
Ampthill, L.
Archer of Weston-Super-Mare, L.
Ashbourne, L.
Astor, V.
Balfour, E.
Barber, L.
Birdwood, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Borthwick, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Bruntisfield, L.
Burnham, L.
Butterworth, L.
Buxton of Alsa, L.
Cadman, L.
Caithness, E.
Caldecote, V.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Chalker of Wallasey, B.
Charteris of Amisfield, L.
Chelmsford, V.
Clanwilliam, E.
Courtown, E.
Cranborne, V. [Lord Privy Seal.]
Cullen of Ashbourne, L.
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Dixon-Smith, L.
Elibank, L.
Elliott of Morpeth, L.
Elton, L.
Faithfull, B.
Ferrers, E.
Finsberg, L.
Flather, B.
Gardner of Parkes, B.
Geddes, L.
Goschen, V.
Gowrie, E.
Gridley, L.
Haddington, E.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Harmar-Nicholls, L.
Hayhoe, L.
Henley, L.
Hives, L.
HolmPatrick, L.
Hood, V.
Hothfield, L.
Howe, E.
Inglewood, L. [Teller.]
Jellicoe, E.
Johnston of Rockport, L.
Killearn, L.
Kimball, L.
Kinnoull, E.
Lauderdale, E.
Lindsay, E.
Lindsey and Abingdon, E.
Long, V.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Macleod of Borve, B.
Manchester, D.
Mancroft, L.
Manton, L.
Marsh, L.
McColl of Dulwich, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milne, L.
Milverton, L.
Mountevans, L.
Mowbray and Stourton, L.
Moyne, L.
Munster, E.
Murton of Lindisfarne, L.
Newall, L.
Noel-Buxton, L.
Norrie, L.
Northesk, E.
O'Cathain, B.
Orr-Ewing, L.
Oxfuird, V.
Pender, L.
Peyton of Yeovil, L.
Quinton, L.
Rankeillour, L.
Rawlings, B.
Renwick, L.
Romney, E.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Shannon, E.
Shaw of Northstead, L.
Skelmersdale, L.
Slim, V.
St. Davids, V.
Strathclyde, L. [Teller.]
Sudeley, L.
Swansea, L.
Teviot, L.
Teynham, L.
Thomas of Gwydir, L.
Tugendhat, L.
Ullswater, V.
Vivian, L.
Weatherill, L.
Wise, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

13 Feb 1995 : Column 463

4.35 p.m.

[Amendment No. 110 not moved.]

Clause 14, as amended, agreed to.

Baroness Turner of Camden moved Amendment No. 111:

After Clause 14, insert the following new clause:

Protection against victimisation

(" . In relation to a member-nominated trustee appointed under section 14 above, the Employment Protection (Consolidation) Act 1978 and the Trade Union and Labour Relations (Consolidation) Act 1992 (referred to in this section as "the 1992 Act") shall each have effect as if—
(a) the purposes specified in section 146(1) of the 1992 Act (action short of dismissal on grounds related to trade union membership or activities) included preventing or deterring him from carrying out any relevant functions as a trustee, or penalising him for doing so; and
(b) the reasons specified in section 157(1) of the 1992 Act (dismissal on grounds related to trade union membership or activities) included the reason that he had carried out, or proposed to carry out, his functions as a trustee.").

The noble Baroness said: We now come to what I believe is one of the most important issues in the whole of this Bill. As we know, the Bill is devised ostensibly to provide more security for members of occupational schemes. In order to do this, it has been acknowledged by the Government that the role of trustees is absolutely crucial. They are likely to be the first people to know if things are going wrong. Therefore, they are in the best position—better even than that of professional advisers—to prevent such calamities as the Maxwell affair from happening again.

13 Feb 1995 : Column 464

There is an acknowledgment in the Bill that there should be member trustees; in other words, people who are currently in employment and who have been nominated or elected to serve the beneficiaries and to protect the fund. We have had our discussions this evening about the number of such member trustees. Our view remains that at least a majority should come from the members themselves and we also want pensioners to be represented. Unfortunately, so far, the Chamber has decided against those two suggestions. But consider the position of an employee trustee when faced with a Maxwell-type employer. In the Maxwell scheme there were employee trustees but there were few people who ever challenged Maxwell about anything, let alone an employee. It therefore becomes necessary, I would suggest, to build into the Bill some protection against unfair dismissal or action short of dismissal for people who come forward to act as pension scheme trustees. The internal whistle blower has to be protected.

At present, as the Bill stands the member trustee will obviously, when he takes up his or her post as a trustee, come into the employer's sights, perhaps for the first time. As we know, the Bill contains quite severe penalties for the trustee who falls down on the job. But the trustee has no protection against his employer, should that employer decide that the questions he is asking are causing problems, or that he or she is seen to be making a nuisance of himself or herself by stirring things up a bit.

The amendment before the Committee seeks to give member trustees some kind of protection. Some Members of the Committee may remember that several years ago, together with my noble friends Lord Wedderburn and Lord McCarthy, we were able to persuade the Government and the Chamber that it was necessary to give some protection against victimisation to individuals working on oil rigs in the North Sea who blew the whistle on unsafe practices. At that time they had no such protection and as many were on short-term contracts they tended to keep quiet when it might have been better had they spoken out. The Chamber supported our Private Member's Bill and it later became incorporated into general health and safety legislation.

What we are seeking to do here is something very similar and in its way almost as important. The North Sea issue, of course, affected lives and safety: this could affect the living standards in retirement of many people, and therefore indirectly their prospects of a longer life. The amendment lays down that anyone who becomes a trustee has the same protection against unfair dismissal—and that protection dates from the commencement of employment—as someone undertaking trade union activity. It also provides that should he or she be dismissed in such a way that it stems from his work as a trustee—and the onus of proof rests on the employer rather than the employee—the employee is then entitled to compensation at the top rate, which I believe could now be of the order of £32,000. I know that there is absolutely no way in which individuals can have complete protection. However, I believe that such a provision in the Bill will surely cause

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employers who could think of getting rid of or making things difficult for awkward trustees to pause, think again, and then perhaps not do it.

4.45 p.m.

Lord Marsh: As the noble Baroness said, the legislation poses some onerous liabilities upon trustees. Indeed, one of the reasons why I have been somewhat less than enthusiastic for the growing attempts to represent ever more employees among the trustees is precisely because of the sheer size of those liabilities.

Perhaps I may refer briefly to the investment power. The Bill refers to,

    "Liability for breach of an obligation under any rule of law to take care or exercise skill in the performance of any investment functions".

That is a pretty heavy and onerous liability.

As one becomes more and more concerned about the situation, one turns to the amendment. My immediate reaction to the amendment was that the situation would be so outrageous that it could be dealt with under the heading of wrongful dismissal or constructive dismissal.

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