Pension Schemes Bill

Commons Amendments

Motion A

That this House do not insist on its Amendments 15 to 24, 27, 30 to 34, 36, 38 to 42, 83 and 88, and do agree with the Commons in their Amendments 88A, 88C, 88E to 88P and 88R to 88W to the words restored to the Bill by the Commons disagreement to Lords Amendments 15 to 24, 27, 30 to 34, 36, 38 to 42, 83 and 88.

88R: Clause 40, page 38, line 28, at end insert “See also section 28G (suspension of asset allocation requirement: savers’ interest test) for provision about circumstances in which the asset allocation requirement is suspended.”

88S: Clause 40, page 39, line 33, at end insert “See also section 28G (suspension of asset allocation requirement: savers’ interest test) for provision about circumstances in which the asset allocation requirement is suspended.”

88T: Clause 40, page 50, line 39, leave out from “must” to end of line 40 and insert “make provision requiring the Authority to determine that the applicant is to be treated as mentioned in subsection (1) in cases where”

88U: Clause 40, page 51, line 1, after “would” insert “be likely to”

88V: Clause 40, page 51, line 5, at end insert— “(ba) must require— (i) an application to include a statement explaining why the applicant considers that meeting the asset allocation requirement would be likely to cause material financial detriment to members of the scheme; (ii) the Authority to have due regard to such a statement in determining an application;”

88W: Clause 40, page 51, line 11, at end insert— “(ca) must require the Authority to provide reasons for any determination not to approve an application;”

My Lords, the other place has once again considered this House’s amendments and has once again disagreed with them, tabling further amendments in lieu. I will set out in a moment what those amendments contain, but I want first to say something about where we now find ourselves.

The elected House has now voted on the reserve power three times. On each occasion it has supported the Government’s position, by large majorities. This House has every right to scrutinise what is before it, and the quality of that scrutiny has improved the Bill. But we need to be clear about the context in which we are operating: these exchanges have gone on for some time, and the Government have moved a considerable distance.

Let me trace that distance briefly. In the first round, the Government wrote the Mansion House Accord targets into primary legislation—the 10% and 5% caps—and introduced the asset class neutrality requirement. In the second round, we went further: the sunset was brought forward to 2032; the power was restricted to a single use; the application was limited to main default funds; and we provided for the full repeal of the entire asset allocation framework at the end of 2035. This was not just the enabling power, but every associated provision—the approval requirements, the penalty regime, the review obligation, and any requirements that had been brought into force—removed from the statute book entirely.

Today, the other place agreed a third set of amendments. These address the savers’ interest test—the mechanism at Section 28G by which schemes can apply for an exemption from any asset allocation requirement. I know that the operation of this test has been a source of concern in this House, touching as it does on issues around trustees’ fiduciary responsibilities to savers. The Government have listened carefully to what has been said, while explaining the reason for their own position, which is, in essence, that these fiduciary duties have not to date been sufficient to overcome the distortion of asset allocation decisions by commercial pressures.

Motion A1 (as an amendment to Motion A)

Moved by

Leave out from “House” to end and insert “do insist on its Amendments 15 to 24, 27, 30 to 34, 36, 38 to 42, 83 and 88, do insist on its disagreement to Commons Amendments 88A, 88C and 88E to 88P and do disagree with the Commons in their Amendments 88R to 88W to the words restored to the Bill by the Commons disagreement to Lords Amendments 15 to 24, 27, 30 to 34, 36, 38 to 42, 83 and 88.”

My Lords, I thank the Minister, including for our meeting on Friday. For the record, we suggested a “have regard” framework, requiring trustees to consider private market investment in alignment with the Mansion House Accord and to report to the regulator. That approach would meet the Government’s stated policy aims without overriding fiduciary duty or distorting the market. It was rejected, apparently because it lacked a sufficiently heavy sanction threat. So we continue and, unfortunately, mandation remains.

At the second round of ping-pong, I dealt with the technical and market concerns, and all those concerns remain. Today, I turn to the constitutional issues. First, fiduciary duty is a foundational principle in our common law. Trustees must act solely in the beneficiary’s interests, yet this clause directs them towards particular asset classes without any statutory defence or immunity. Trustees are left in a double bind: comply and risk personal liability or refuse and face deauthorisation.

Secondly, the process has been procedurally defective. There was no consultation on mandation, discrimination between investment vehicles or the sanction. The Commons amendments this time merely add procedural language around the savers’ interest test, due regard and reasons, which public law already requires. Further, there is the coercive effect of the so-called reserve power, which is already being deployed to pressure schemes and trustees into compliance without the consultation, assessment or regulatory discipline that regulations would require. That is constitutionally improper. Policy is being pursued by threat, not by law.

Thirdly, the savers’ interest test itself is unchanged in substance. The insertion of “likely to” is trivial. The test still reverses the logic of fiduciary duty, savers have not consented to the additional risks, and the penalty of deauthorisation remains draconian and disproportionate.

I support the noble Baroness, Lady Bowles. I point out to the Minister that the Mansion House Accord had two parts. The second part had government obligations, on the basis of which the industry voluntarily agreed to invest in the private assets that the Government favour. None of the Government’s obligations is enshrined in the Bill; they are hoped for. The Minister assumes that private assets will definitely outperform and that if savers do not invest in them they will be losing out somehow. There is no underpin for the losses and even if the investment experts decide that they disagree and would not normally want to buy them, they will still be forced to. This is not the way to get pension funds to invest successfully or to trust the Government in the future. I hope that the Government will think again.

My Lords, I declare my interest as an employee of Marsh, whose sister company Mercer is a pension consultancy, master trust provider and, importantly, a signatory to the Mansion House Accord. What would the Noble Baroness the Minister say to firms that signed the Mansion House Accord last year in good faith, believing that fiduciary duty and trustee oversight would be preserved in order to ensure value for money for the individual pensioners whose funds they are responsible for investing, but which now face the prospect—or, dare I say, threat—of mandation. This simply cannot be right, and we certainly do not think so.

My Lords, I have little to add to the compelling case set out by the noble Baroness, Lady Bowles, and indeed by us all throughout the passage of the Bill. Our position remains unchanged: mandation has no place in the Bill and, if the Government are serious about securing its passage, they should remove it.