“(1) The provisions in section 38 shall not come into force except in accordance with regulations made by the Secretary of State.

(2) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”—

This new clause would require that the provisions in clause 38 could only be enacted once agreed through secondary legislation.

Brought up, and read the First time.

I beg to move, That the Clause be read a Second time.

Overall, this Bill has wide cross-party support, as evidenced by the fact that we have been rattling through it at such a pace. However, the power of mandation is undoubtedly the most controversial aspect. To be briefly Shakespearean: to mandate or not to mandate, that is the question.

The new clause would require that the provisions in clause 38—the mandation powers—be enacted only through secondary legislation. It is an attempt to square the circle between two competing views. The Liberal Democrats have concerns about the implications of mandation, frankly, as has much of the pensions industry. For example, Pensions UK, which is a signatory of the Mansion House accords, has stated:

“We believe that the best way of ensuring good returns for members is for investments to be undertaken on a voluntary, not a mandatory basis. We also note powers being taken to specify required investment capability for schemes, and to direct LGPS funds to merge with specific pools. All of these powers will require careful scrutiny.”

Similarly, the Society of Pension Professionals has said:

“The SPP does not support the reserve power to mandate investment in private market assets and recommends its removal from the legislation. The mandation power creates significant uncertainty, including questions about legal accountability for investment underperformance and how eligible assets will be defined. The threat of mandation risks distorting market pricing and could reduce public trust in pensions, as savers may fear that financial returns are no longer the top priority.”

The Minister has stated on a number of occasions that mandation should not be necessary, that he does not expect to have to use it and that the Mansion House accord demonstrates the industry’s willingness to act voluntarily. The obvious response is that if that really is the case, and that UK private markets truly offer the best option for pension savers while meeting the fiduciary duties, the industry should not need any prodding and mandation will not be required. The Minister’s response on previous occasions, and no doubt today, has been to observe the history and point out that thus far, the industry has been slow to make that change.

We recognise that the Minister is wholly committed to the path of giving himself mandation powers, whatever we or anyone else says. Indeed, he sees it as core to the legislation. For that reason, we have proposed the new clause as a halfway house. The power would be put on the books, but it would require secondary legislation to be enacted. It would give the Minister the ability to have access to mandation powers at short notice if he deemed it necessary, without needing primary legislation, but in the meantime, it does not hang over the industry like a sword of Damocles. It may seem just a psychological difference, but psychology matters, and there are other advantages.

Somewhat counterintuitively, sometimes having too much of a stick can be a problem in itself. The Minister would be under pressure to use the stick for the sake of consistency in every case where any company went slightly over the limit or was under the limit, even when he might prefer to take a softer, more conciliatory approach. We therefore see this new clause as a way to help the Minister exercise the powers he needs, but without stepping too heavily on industry’s toes. As he has said, he does not believe that he will ever need to exercise the power, so let us keep it at arm’s length.

I will resist the temptation to relitigate the entire argument about Clause 38, which we discussed at some length on Tuesday. I entirely agree with the thrust of the new clause, which is that there should be scrutiny of the use of any such powers—that includes the scale measures, not just asset allocation.

I can offer the hon. Member for Horsham some reassurance, because the Bill already provides that all significant regulations made under clause 38, including the ones he is referring to, are always subject to the affirmative parliamentary procedure. That is the effect of the changes made to section 143 of the Pensions Act 2008 by clause 38(15). That should give him a lot of reassurance. It is true that the new clause could put a further vote in the system, but the effect is the same. I have bad news about Governments with majorities: whether they are asked to vote once or twice, the outcome will look quite similar.

For the sake of transparency, I should flag that there are some much less significant measures in clause 38 that are subject to the negative resolution procedure. I will spell them out: regulations made that require regulatory authorities to report information relating to asset allocation to the Secretary of State, regulations made in respect of new information provisions, and regulations made in respect of the regulator’s power to issue a risk notice. The negative procedure is never used for the major aspects of clause 38, which, as the hon. Gentleman set out, is a central part of the Bill. I hope that reassures him that Parliament would have to support any measures to bring in the regulations that will underpin clause 38. As I have said ad nauseam, we intend to bring into effect the scale parts of clause 38, but do not anticipate the need to use the reserve power elements.

I thank the Minister for his clarification. I emphasise that the new Clause is as much for industry’s comfort as Parliament’s; nevertheless, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.