Amendment 71

Pension Schemes Bill [HL] - Report – in the House of Lords at 8:20 pm on 30th June 2020.

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Baroness Bowles of Berkhamsted:

Moved by Baroness Bowles of Berkhamsted

71: Clause 123, page 118, line 4, at end insert—“(2) In exercising any powers to make regulations, or otherwise to prescribe any matter or principle, under Part 3 of the Pensions Act 2004 (scheme funding) as amended by Schedule 10, the Secretary of State must ensure that—(a) schemes that are expected to remain open to new members, either indefinitely or for a significant period of time, are treated differently from schemes that are not;(b) scheme liquidity is balanced with scheme maturity;(c) there is a correlation between appropriate investment risk and scheme maturity; (d) affordability of contributions to employers is maintained;(e) affordability of contributions to members is maintained;(f) the closure of schemes that are expected to remain open to new members, either indefinitely or for a significant period of time, is not accelerated; and(g) trustees retain sufficient discretion to be able to comply with their duty to act in the best interests of their beneficiaries.”Member’s explanatory statementThe liquidity profile of an open and active scheme that is receiving regular, significant cash contributions is very different from a closed scheme. This amendment seeks to ensure that they are treated differently accordingly.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, this amendment revisits the issue of open direct benefit schemes on which discussions started in Committee; I thank the noble Lord, Lord Young, and the noble Baroness, Lady Altmann, for supporting it. Nowadays, those with defined benefit pensions are regarded as the lucky ones, yet there are still millions of people in thriving open DB schemes where, if you start work today, you can join.

However, these are under threat because the Pensions Regulator does not recognise the substantial difference between open and closed schemes. An open scheme is open at both ends. It has no end date and is open to new members, providing a continuing supply of new contributions, including from future members. Cash flow is steady state or positive, giving inherent liquidity and allowing assets to be used to generate returns. A closed scheme is closed at both ends. It does not permit new members. Contributions progressively dwindle to zero and it has a finite end date when everyone in the scheme has died. Closed schemes have a progressively ageing member profile, often or usually negative cash flow and to pay the pensions, the assets must provide liquidity and are progressively consumed.

Examples of open pension schemes include local authority pension funds, the Nuclear Decommissioning Authority and the Railways Pension Scheme. The different classes of open and closed schemes require different investment, risk and liquidity strategies. A low-risk liquid investment strategy is more appropriate for closed schemes where the loss in asset values would impair a model that relies on asset consumption as it moves to its end date. They cannot risk running out of assets too soon and recovery from losses on dwindling assets is difficult.

The same strategy does not need to be applied to open schemes. With a pipeline of new and younger members, assets do not need to be liquid, are not inherently dwindling, and a far longer investment horizon is possible. An investment risk profile of the type generally classed as balanced rather than risk-averse can safely be followed, including real assets such as infrastructure. As an example, the Railways Pension Scheme invested in the Carraig Gheal wind farm in West Argyll and the Sleaford biomass plant, providing both environmental and local community benefits. This type of investment brings higher returns and the contributions from the members and the employers remain affordable. If open schemes are needlessly pressed to have the liquidity and risk profiles defined for closed schemes, it is inevitable that they too will close due to unaffordability: start the run-down, jeopardise employer companies and employees will lose out, pay more, or both.

The reason for this amendment is that, although open schemes and run-on is given as an acceptable strategy in Annex F of the impact assessment, the Pensions Regulator is developing a strategy that requires both open and closed schemes to have a de-risking profile, without adequate recognition of the different natures of the schemes. The regulator’s DB code suggests treating accrued benefits the same in open and closed schemes of the same maturity, which fails to recognise the difference in the models that I have just explained. One open scheme may have a greater or lesser age maturity of its members than another open scheme, but it is not comparable in risk and liquidity terms to a closed scheme of identical member age profile because both ends are open. It is perpetual and new members and cash flows come in.

Amendment 71 would add new requirements on the exercise of regulatory powers by the Secretary of State to ensure that regulations on scheme funding, as provided for in Schedule 10, do not fail to recognise the characteristics of open schemes. Sub-paragraph (a) would require that open schemes are treated differently from schemes that are closed, which means that there should not be a one-size-fits-all policy that disregards the substantial differences that I explained and tries to compare an open scheme with a closed one. It must have its own regime. Sub-paragraphs (b) and (c) list the features of liquidity and investment risk that need balancing with maturity, but also in the light of the perpetual characteristics of open schemes. Sub-paragraphs (d) and (e) specify maintenance of affordability of contributions to both employers and members. Sub-paragraph (f) would require that regulations and principles do not accelerate closures of open schemes—essentially, a do-no-harm requirement. Sub-paragraph (g) states that trustees must

“be able to comply with their duty to act in the best interests of their beneficiaries.”

The effect of treating open schemes as if they are closed would require huge increases in contributions and, at an instant, put schemes in deficit. Dependent on the scheme details, that may not fall only on the employer. For example, the Railways Pension Scheme has a shared-cost approach to funding in which the contributions of the members would substantially increase as well as those of the employer. The Railways Pension Scheme provided me with figures on its strategy, but I understand that other open schemes are similar. For every £1 of pension income received by members, 75p comes from investment gains, with only 25p from contributions. Investments are maintained in a balanced portfolio with equity in the 40% range and only 15% in government bonds, defensive assets and cash. They have consistently met or exceeded investment return requirements.

If that portfolio were switched to gilts, income would crash because the days of 4.5% yields that underpinned conventional wisdom of investing in the long-dated gilts has gone in the wake of global quantitative easing. Where would the Railways Pension Scheme’s missing 75p per pound then come from—a near trebling of contributions? That would lead to closure and worse. The employees cannot afford it, the companies cannot afford it and the fair-paying public cannot afford it. It is not protecting the public’s purse. Why allow that to happen due to an over-simplistic approach? The Government really need to defend open schemes in this Bill. Given that importance, I am minded to press the amendment to a vote. I beg to move.

Photo of Lord Young of Cookham Lord Young of Cookham Conservative 8:30 pm, 30th June 2020

My Lords, I will add a brief footnote to the powerful case made by the noble Baroness, Lady Bowles. She referred to the Railways Pension Scheme. As Secretary of State for Transport from 1995 to 1997, I am familiar with the scheme, which has grown in the intervening years to be one of the UK’s largest funds and which I believe to be well run.

I shared with my noble friend Lady Stedman-Scott the concerns of the RPS; namely, as the noble Baroness, Lady Bowles, has said, that the draft DB funding code that will emerge as a result of this legislation would oblige the various schemes under the RPS to de-risk with lower returns. As the noble Baroness has explained, these would have to be made good by the industry, if it could afford it, or its employees, or the schemes would be closed to new members.

I was encouraged by my noble friend’s helpful reply, dated 17 June, which said:

“Those employers and schemes who are already following good practice and planning for the long term should not need to change and we would not expect such schemes to require significant additional funding.”

However, I shared the letter with the RPS and, despite this, it believes that the powers in the Bill are too loosely expressed and that more specificity would ensure that the subsequent regulations got off on the right track. If the Minister cannot accept the amendment, can he make a commitment that there will be a distinction between open and closed schemes, to be followed up in the subsequent regulations? Will he ask his officials to discuss these concerns further with interested parties in an endeavour to find an acceptable way through as the Bill completes its passage through both Houses?

Photo of Baroness Altmann Baroness Altmann Conservative

My Lords, I support Amendment 71, to which I have added my name. I have little to add to the excellent words of the noble Baroness, Lady Bowles, and my noble friend Lord Young of Cookham.

I stress to my noble friend the Minister that this is a really important amendment. The Government’s recent White Paper called for pension scheme funding which enables the best deal for members, supports the economy and does not place extra burdens on business. If those are the objectives—and I think they are the right ones—they will be at odds with the draft DB funding code that may emerge from this legislation, which seems to want to drive DB schemes on a path to so-called de-risking, aiming for a particular date of maturity. This concept is simply inappropriate for an open scheme.

The regulatory approach for schemes such as USS or the Railways Pension Scheme would see their ability to invest for the long term, which must be in the members’ best interest, become much more difficult. There does not seem to be sufficient recognition of the difference in liquidity profile and investment horizon of an open, relatively immature scheme compared to a closed scheme. Indeed, this would pose an existential threat to the survival of all remaining 1,000 or so open schemes. In the face of quantitative easing, increasing exposure to gilts and fixed income assets makes little sense while central bank policy is designed to force bond yields lower. Forcing schemes to compete with central banks to buy ever more expensive bonds is the most expensive way to fund these pension commitments.

The Bank of England’s pension scheme is an ideal example. It follows a lowest-risk approach, investing solely in gilts and other such supposedly safe assets. It does not match its liabilities, but it is open and entails a contribution rate of between 40% and 50% of pensionable salary. Should such pension contributions be required without any upside potential for a diversified investment strategy that can take advantage of the wide range of investment options available from infrastructure assets, building housing for rental and other areas where pension schemes with a long-term horizon are ideally placed to take advantage—for example, our own infrastructure, in which other countries’ pension schemes have significantly invested—schemes such as RPMI would require such significant contribution increases that members could not afford it and would opt out, and employers could probably not afford it either.

Therefore, I urge my noble friend to look carefully at this really important issue and to recognise explicitly that there are different needs for open DB schemes relative to those that are otherwise closed.

Photo of Baroness Drake Baroness Drake Labour

My Lords, I speak in support of Amendment 71. Given the hour, the noble Baroness, Lady Bowles of Berkhamsted, with her usual skill, has captured the issues clearly and succinctly. It is clear that there is genuine concern among those running DB schemes which are materially open to new members with strong employers, such as the sections of the Railways Pension Scheme and the Universities Superannuation Scheme. They fear that they will be forced to de-risk unnecessarily, with all the implications that that carries and all the potential detriment for both employers and employees in the scheme.

The amendment seeks to address two issues: first, that it should not be government policy to require trustees of pension schemes materially open to new entrants with strong employer covenants to adopt a strategy that will result in them de-risking their investments unnecessarily and prematurely, for all the reasons that other noble Lords have clearly articulated; and, secondly, that the Secretary of State, in exercising powers under Schedule 10 to make provisions through regulation on the funding of defined benefit schemes, should make provisions that are consistent with the policy in the White Paper statement that running on with employer support could be an acceptable long-term strategy for a materially open scheme. The amendment is consistent with any reading of the government policy in the White Paper, but it seeks to ensure that it happens.

Photo of Lord Vaux of Harrowden Lord Vaux of Harrowden Crossbench

My Lords, I had intended to add my name to this amendment, and I apologise that I failed to do so. The noble Baroness, Lady Bowles, has raised an extremely important issue in the amendment and has eloquently set out the reasons.

We are often guilty of looking at defined benefit schemes as a concept that is on the way out—that we are only really talking about the run-out of closed schemes —but that ignores the fact that many DB schemes remain active and open to new joiners. I am very grateful to the Railways Pension Scheme for explaining the potential implications for such schemes of the regulator’s consultation on the defined benefit funding code of practice.

For schemes that are mature or closed and in the run-down phase, it makes complete sense to minimise the risk of the investment strategy so that there is a high degree of certainty that the fund will be able to meet its obligations. The flipside of that, of course, is that a low-risk investment strategy means a low return. That is fine for mature schemes, but schemes that are not mature and still live would suffer from being restricted to a low-risk, low-return investment strategy. As the noble Baroness, Lady Bowles, said, the largest part of benefits paid from a fund typically come from the investment returns earned over its life. If forced to take such a low-risk, low-return approach in order to meet a certain level of benefit, they would have to massively increase contributions from either the employer or the employee or a combination of both. Indeed, I confess that I had not understood that there are DB schemes that specifically share such risk between employers and employees.

A higher-risk investment strategy with the ability to earn better returns is entirely appropriate for schemes that are not mature. I think that it was the noble Lord, Lord McKenzie of Luton, who, in Committee, raised a concern about hastening the demise of defined benefit schemes. If the regulator, in taking an overly risk-averse approach, insists on too low a risk and a low-return approach for open or immature schemes, they will inevitably become less attractive to employers and possibly to employees. All we will achieve is the hastening of the end of defined benefit schemes, which are the gold standard for pension saving, especially for those on lower earnings.

The amendment is therefore critical to ensure that the regulator takes into account the state of maturity of a fund when looking at scheme funding and to ensure that trustees have sufficient discretion to be able to act in the best interests of their beneficiaries.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I too congratulate the noble Baroness, Lady Bowles, on bringing forward this amendment. It is vitally important that the many contributors to these open schemes have comfort that these schemes will continue and will provide them with a reasonable level of benefit when they retire. I am grateful to the Railways Pension Scheme for a very useful briefing, which other noble Lords have seen. I myself am not a member of that pension scheme, but I have a large number of friends who are among its 350,000 members. I think it is relevant that 100,000 of them are still active, and that number will probably continue. That will happen, as the noble Baroness said, in the schemes for local authorities, nuclear decommissioning and many other sectors.

The real point is that many of the people contributing to these funds are comparatively low paid. Perhaps the Minister when she comes to respond can explain why the Government think it is a good idea to allow the schemes to require a greater contribution from the members and from the employers for no particular benefit. It seems absolutely clear that open and closed schemes must be treated separately. In ending, I ask the Minister to explain to me and other noble Lords why Ministers are not going along with this amendment. It seems so simple and well thought through, and I will certainly support it if the noble Baroness decides to divide the House.

Photo of Lord Snape Lord Snape Labour

My Lords, I will confine my remarks to the impact of this amendment on the Railways Pension Scheme, and I join other noble Lords who expressed support for the amendment. As a former railwayman I was a member of the RPS in my younger days, although I was sensible enough—if that is the right term—to transfer to the parliamentary pension scheme when I was elected to the other place many years ago. However, I remain in contact with many of my former colleagues within the railway industry, and certainly they and the trustees of the Railways Pension Scheme have expressed their concern about the impact of this legislation on their future policy.

I remind the Minister that the RPS is a final salary defined benefit scheme that replaced the British Rail Pension Scheme after privatisation in 1993. Successive Ministers since then—among them those as distinguished as the noble Lord, Lord Young of Cookham—have assured the Railways Pension Scheme that matters will continue pretty much as before, and phrases such as “mirror image” and “the continuation of the present scheme” have been used. To find ourselves in the position that we will be in if this amendment is rejected is, to say the least, something of a surprise.

I have to tell noble Lords that the future of the Railways Pension Scheme is of massive concern among the railway unions, one of which, the National Union of Rail, Maritime and Transport Workers—I used to be a member of its predecessor, the National Union of Railwaymen—has already balloted or threatened to ballot its members about the future of the scheme. The acceptance of this amendment would go some way to ease the fears that many members of the scheme feel about the future.

However, the trustees of the RPS themselves have expressed concern about the future. Without this amendment being written into the Bill, they feel that the regulations which will follow will force trustees to take short-term investment decisions rather than the long-term and ethical decisions that the RPS takes at the present time. Indeed, one of them passed a comment to me that “We will be forced in the end to buy nothing else but government gilts”—which is probably not an investment path that most advisers would recommend in the current circumstances.

To ensure that the RPS is traditionally able to make long-term and ethical investments, I make this plea to the Minister to write this amendment into the Bill. It may well be that the noble Earl, Lord Howe, says to us, “We hear what you say. We are conscious that there is concern; we will look at this. Of course, many of your fears are groundless, and Ministers will bear all these fears in mind”. However, over the years that I have been a Member of the other place and your Lordships’ House, Ministers have come and gone. The other day I counted that 27 Ministers for Transport have been around in my time in one House or the other. Ministerial pledges are all very well, but times change—not quite as often as Ministers.

As a Member of both your Lordships’ House and the other place, I have found myself speaking to Ministers about a problem, particularly in the railway industry. By the time I finally managed to get my point across, the Minister had either moved on to greater things and was not in a position to help or, just as likely, had joined me on the Back Benches and was complaining bitterly about how unkind life and politics were generally.

So, while ministerial assurances are all very well, if we are to continue the sensible—and, I repeat, ethical—policies of the Railways Pension Scheme, it is essential that the Government accept this amendment and write it into the Bill.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative 8:45 pm, 30th June 2020

My Lords, I have little to add, but I very much agree with ensuring that

“the closure of schemes that are expected to remain open to new members, either indefinitely or for a significant period of time, is not accelerated”,

to quote from the amendment. I look forward to hearing from the Minister on how he can meet the House’s concerns.

Photo of Lord Bradshaw Lord Bradshaw Liberal Democrat

My Lords, I too welcome this amendment in the name of my noble friend Lady Bowles to help keep open defined benefit schemes. This is to be applauded, as I believe that they are in the best interests not just of their members but of wider society. Open defined benefit schemes assist UK plc over the long term and reduce the potential burden on the state from inadequate pension provision.

As we have heard, the genesis of this Bill dates back to corporate failures such as Carillion and BHS. It is right that the Government look to address the shortcomings that led to these failures and the losses that members of those schemes unfortunately suffered—but it is important to learn the right lessons. BHS and Carillion were fundamental examples of pension schemes brought down by a failure of corporate governance to manage those companies properly, not of companies brought down by a failure to manage their pension schemes.

Like other noble Lords, I understand the Pensions Regulator seeking to protect members’ benefits, but it should look at defined benefit schemes, because they look to the future. They do not just look in the rear- view mirror but have a much wider responsibility to act in the best interests of all members—past, present and future.

Any moves to significantly reduce those returns by forcing schemes that remain open to new members to start investing in line with the risk profile of closed schemes will have unintended consequences. I shall certainly support the noble Baroness, Lady Bowles, if she decides to call a Division.

Photo of Lord Sharkey Lord Sharkey Liberal Democrat

My Lords, I strongly support my noble friend’s analysis of the one-size-fits-all regulatory threat to open schemes. I also strongly support the proposed remedy, which would ensure proper consideration of the essential differences between open and closed schemes, is proportionate and is not unduly prescriptive. I hope the Minister will respond positively.

Photo of Baroness Sherlock Baroness Sherlock Shadow Spokesperson (Work and Pensions), Opposition Senior Whip (Lords)

My Lords, we all believe that trustees of DB schemes should have a clearly defined funding and investment strategy for insuring pensions in the long term. However, if that is pursued in a way driven by the need to protect members in closed maturing DB schemes, then schemes with strong covenants open to new entrants risk being swept up in an approach that is wrong for them. As closed DB schemes increasingly mature, the regulator will expect them to de-risk and reduce their deficits. However, if that approach is applied in a blanket form it will force some open schemes to de-risk prematurely, putting pressure on employers and, in the railway scheme with its shared-cost basis, on employees too. Given all the concerns expressed, will the Minister accept this amendment?

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords

My Lords, I am grateful to the noble Baroness, Lady Bowles, for her amendment, which touches on a number of important factors to be considered in the development of secondary legislation, including the factors that it lists. I say immediately that I agree that these are all important factors to take into account when developing secondary legislation for defined benefit scheme funding. However, we do not need an amendment to do that. The amendment includes factors that are all taken into consideration during the whole process of framing policy, legislation and guidance.

One of the greatest strengths of our scheme-funding regime is that it operates on a scheme-by-scheme basis because every scheme is different, and it would be unhelpful and inflexible to treat them all the same. The measures in the Bill build on that approach, as will the secondary legislation. The existing scheme-funding legislation has been drafted to ensure that it is flexible enough to apply to all types of defined benefit scheme—for example, whether open or closed. Equally, the scheme-funding measures in the Bill are flexible enough to apply to all types of defined benefit scheme.

In the protecting defined benefits White Paper we were clear that there are a number of examples for suitable long-term objectives and that running on with employer support would be a reasonable course of action for an open scheme. Whether or not the strategy for ensuring that benefits can be provided in the long term is suitable will depend on the specific context of a particular scheme. Additionally, we entirely accept that schemes with different liquidity profiles and maturity will be able to take different trajectories. This is, and will remain, fundamental to the scheme-specific approach. So I assure the noble Baroness and the House that any regulations will also be formulated with considerations such as those outlined in the amendment in mind, where appropriate.

The big danger with an amendment of this kind is that it creates inflexibility. It remains our aim that the scheme-funding measures in the Bill do not change existing flexibilities but, rather, seek to make best practice universal and ensure that all schemes are planning for the long term. It is good practice for all schemes, including open schemes, to set a funding and investment strategy.

My noble friend Lord Young asked whether I could commit to a meeting along with officials to discuss these issues. Yes, I am happy to do that, and if schemes have concerns with what TPR is proposing they can engage with the current consultation. The Pension Regulator’s current consultation on the defined benefits funding code includes a twin-track compliance process that takes account of scheme and employer circumstances. Indeed, the current consultation has a full chapter on open schemes, and I encourage anyone interested to contribute their views.

Regulation-making powers exist precisely to allow the system to be calibrated effectively to ensure that this balance is struck. While the noble Baroness’s amendment reflects a number of factors that are considered while developing policy, we do not need to specify those in primary legislation and indeed, as I hope I have indicated, it would be unhelpful to do so. We need to leave room for the flexibility that I have emphasised; we must leave enough flexibility in the system to allow it to react effectively to future changes. Indeed, in the light of the current social and economic climate, it is very clear that the economic shape of the future is unknowable.

I hope that the noble Baroness will recognise from what I have said that the Government’s approach is fair and proportionate and that she will accept my assurance that appropriate flexibilities are, and will continue to be put, in place. On that basis I respectfully urge her, and urge her with some emphasis, to withdraw the amendment.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, I thank all those who have spoken in this debate. I particularly thank the noble Lord, Lord Young, and the noble Baroness, Lady Altmann, for signing the amendment, for making their contributions and for speaking to the Government. It is clear to see that there is support for the amendment from across the House, and I hope that it is also clearer to everyone why preservation of open DB schemes is in the public interest. We are, in fact, in a rather strange situation where the Minister is in agreement with the policy; it is in government policy, but yet there is a significant danger from what the Pensions Regulator has actually said. That is the sole reason why there needs to be something on the face of the Bill that confirms what is government policy.

The Government have a further opportunity to amend this Bill in a way that they consider is better than my amendment and give guidance in a different way. I would be happy to help, but we have run out of time and I have not heard a suggestion that something will actually be presented at Third Reading. This House does not have any more opportunities with this Bill, and I cannot see anything coming down the track to give us another opportunity that would be in time to make a difference with regard to the Pensions Regulator’s obvious position.

This is not a new argument: I have spent 10 years in Brussels arguing the toss on these things, on the difference between IORPs and Solvency II, and I know where the pressure comes from the former FSA—now the FCA. Part of this Bill, on CMP schemes, is fixing a problem for one newly privatised employer. Why dump others who have found good ways to make their DB schemes flourish and last? If the Government do not make it clear, that is what will happen: they may well end up being dumped.

In the first group of amendments, the noble Baroness, Lady Sherlock, said that she did not want CMP schemes to undermine DB schemes. Without this amendment or something like it, they may well have nowhere else to go. This is not a nice-to-have amendment; it is vital. The issue should not be swept into the corner for these pension schemes to die quietly, and I wish to test the view of the House.

Ayes 263, Noes 227.

Division number 4 Pension Schemes Bill [HL] - Report — Amendment 71

Aye: 263 Members of the House of Lords

No: 227 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 71

Amendment 71 agreed.

Clause 124: Climate change risk

Amendments 72 to 74 not moved.