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Baroness Hollis of Heigham: Could the noble Lord give me the line reference?
Lord Higgins: It is line 30 on page 61. The question is how it is proposed that it should be published. It is obviously important that individual trustees, and so on, receive it. The Treasury seems to be being quite mean by normal Treasury standards in asking for a charge to be made. What sort of revenue are the Government expecting to receive from the Treasury charging for the code of practice to be issued? The Treasury really does not need to go that far in facilitating the operation of the Bill, which otherwise is in many ways worth while.
Baroness Hollis of Heigham: I am delighted to hear the noble Lord, Lord Higgins, encouraging us to spend money—I am sure that it is for a good cause. Under subsection (10), we expect publication to be valid whether it is by paper or the Web, so that people have access to it.
Secondly, we do not expect that there will normally be a fee under subsection (11). But if a company requested 1,000 copies, one for each of its members, it would seem reasonable to consider a charge so that the provision was not at the expense of others. It is a matter of judgment, but normally there would be no problem with sending out a copy. If a company wanted every member to have a copy, as a result of which a very large amount of trees were involved, it would not be unreasonable to consider an appropriate fee—it would be non-profit-making, I am sure.
Baroness Turner of Camden: I was interested in the reference to consultation in Clause 85. It states:
Where would the list of people to consult come from and who would those people be? If a code of practice affects how trustees are expected to operate, it is necessary that trustees are consulted. As my noble friend is aware, an organisation of trustees from major companies has already been established. It has drafted its own code of trustees, which it put to the department. I would like to see such people consulted
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in connection with these codes. Can my noble friend give us any information on how such lists, if there are any, are compiled?
Baroness Hollis of Heigham: I am not sure whether we have lists as such. All that I would say is that I have never known a Bill that has involved so much consultation—on policy intent, the draft regulations and so on. The intention is to consult as widely but as appropriately as possible; for example, it might not be sensible to involve insolvency practitioners on an issue associated with how many staff there might be for the removal of the tracing service from OPRA to the Department for Work and Pensions, but it might be very appropriate to consult the union of the staff concerned, because their conditions of employment may change or a TUPE issue may be involved. All I can suggest to my noble friend is that this is one of those occasions where one says, "I am from the Government; please trust me".
Lord Hunt of Wirral: I hesitate to follow that last remark, because I thought that that was one of the great untruths.
Baroness Hollis of Heigham: It depends on who says it.
Lord Hunt of Wirral: From the Minister's mouth, I would readily believe it, but from some other mouths I would not.
On Clauses 84 and 85, I am aware not only of the concerns expressed by my noble friend Lord Higgins but of the serious concern expressed by the Association of British Insurers (ABI). Its head of pensions and savings, Joanne Segars, has said that she and many members of the ABI are seriously concerned that there is a danger that the Bill as currently drafted, particularly Clause 85, will not provide for good pension scheme governance.
I realise that we have debated some of these issues already. I hope that there will be time, before we resume after the Recess, for the Minister and her colleagues to discuss some of the issues involved with the representative organisation. It is in everybody's interest that we have good pension governance.
Baroness Hollis of Heigham: That is absolutely right; I certainly promise to discuss the issues. I understand where people are coming from on this clause. Would noble Lords find it helpful if I asked our lawyers to provide a detailed description of the clause—the weight of its words, the cross-references and its import—and to ensure that it is circulated to everybody before Report? If noble Lords would find such a legal deconstruction helpful I am very happy to make that offer. It is absurd, if people of the experience and expertise of your Lordships are struggling with the clause, to expect people outside, who possibly do not have that expertise, to have easy access to it. It may be that, if we have any supplementary guidance and so on, we can ensure that it covers the description of the clause.
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Members of the Committee may find other clauses similarly opaque. Some of the difficulty, although not very much of it, is about cross-referencing back to previous pensions Acts. If and when—I hope that it will not be too long—we get a consolidation Act—we shall not face that problem. That could be next week or next decade. Who knows?
Lord Oakeshott of Seagrove Bay: It could not be next week.
Baroness Hollis of Heigham: No, I agree—that was a rash hypothesis. But if any other clauses fall into that category, Members of the Committee should let me know, and I shall be happy to extend the same offer.
Clause 86 [Revocation of codes of practice]:
On Question, Whether Clause 86 shall stand part of the Bill?
Lord Higgins: I make only a very brief point. The final subsection, on page 61, refers without prejudice to Section 300, which is a very long section dealing with subordinate legislation and general provisions. The subsection says:
"Without prejudice to section 300, an order under this section may contain such savings as appear to the Secretary of State to be necessary or expedient".
I am not familiar with the expression "savings", and I have no idea what it means in this context.
Baroness Hollis of Heigham: I am sure that "savings" here does not mean cash. Let me add that to the letter that I shall write about Clause 85. Apparently "savings" carries a legal import here with which I am unfamiliar.
Clause 87 [The Regulator's procedure in relation to its regulatory functions]:
[Amendment No. 169 not moved.]
Lord Higgins moved Amendment No. 170:
"( ) power to issue a contribution notice under section 35;
( ) power to issue financial support directions under section 39;
( ) power to issue contribution notices where financial support directions not complied with under section 42;
( ) power to issue a restoration order where a transaction is at an undervalue under section 47;
( ) power to issue a contribution notice where a restoration order is not complied with under section 50"
The noble Lord said: The amendment stands in my name and that of my noble friend Lord Skelmersdale, and is intended to be helpful—as, indeed, all our amendments are intended to be. Nowhere in the Bill does it appear that there is any requirement for the regulator to determine the code of procedure for the powers enumerated in the amendment. We are under the impression that that may be an oversight, and the amendment seeks to remedy it if that is the case.
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Currently the regulator's exercise of the powers is not within the scope of the pensions regulator tribunal in Clauses 91 and 93, and so not subject to any judicial oversight as to fact or law. The amendment seeks to put the matter right. I beg to move.
Baroness Hollis of Heigham: I see the point of the amendment, but I wonder whether it is at all necessary. It would add a number of functions to the list of regulatory functions of the regulator contained in Clause 87(2). The functions of the question are the powers that the regulator may exercise under the clauses that we debated very extensively and which cover moral hazard—Clauses 35 to 50.
The list of regulatory functions in Clause 87(2)(c) includes the functions reserved to the Determinations Panel and listed in Schedule 2. That schedule already contains the powers that are the subject of Amendment No. 170. Members of the Committee will find them on page 245 of the Bill. Those powers are therefore already classed as regulatory functions. In other words, we do not disagree, but what the noble Lord is asking for is in one of the schedules that is tucked away in Volume II of the Bill, in Part 4. I hope that with that explanation, the noble Lord will feel able to withdraw his amendment.
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