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The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, as Amendment No. 4 has been agreed to I am unable to call Amendment No. 5 in the name of the noble Baroness, Lady Hollis of Heigham, because of pre-emption.

[Amendment No. 5 not moved.]

Lord Lucas moved Amendment No. 6:

Divide Clause 3 into two clauses, the first (Prohibition orders) to consist of subsections (1) to (2B) and the second (Suspension orders) to consist of subsections (3) to (5).

On Question, amendment agreed to.

Clause 4 [Removal of trustees: notices]:

Lord Lucas moved Amendments Nos. 7 to 10:

Page 2, line 39, leave out from ("section") to ("without") in line 40 and insert ("(Prohibition orders)against a person").
Page 3, line 4, leave out from ("section") to ("the") in line 5 and insert ("(Prohibition orders) against a person").
Page 3, line 6, leave out from first ("the") to ("cannot") and insert ("trustees of the scheme, except that person (if he is a trustee) and any trustee who").
Page 3, line 7, at end insert:
("( ) Where the Authority make an order under section (Suspension orders) against a person, they must—
(a) immediately give notice of that fact to that person, and
(b) as soon as reasonably practicable, give notice of that fact to the other trustees of any trust scheme to which the order applies, except any trustee who cannot be found or has no known address in the United Kingdom.").

On Question, amendments agreed to.

Clause 5 [Removal or suspension of trustees: consequences]:

Lord Lucas moved Amendments Nos. 11 to 13:

Page 3, line 12, leave out ("removed or suspended under section 3") and insert ("prohibited from being a trustee of the scheme under section (Prohibition orders) or suspended in relation to the scheme under section (Suspension orders)").
Page 3, line 20, leave out from ("person") to ("or") in line 22 and insert ("purporting to act as trustee of a trust scheme while prohibited from being a trustee of the scheme under section (Prohibition orders) or suspended in relation to the scheme under section (Suspension orders) are not invalid merely because of that prohibition").
Page 3, line 23, leave out ("section 3") and insert ("sections (Prohibition orders), (Suspension orders)").

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On Question, amendments agreed to.

Clause 6 [Appointment of trustees]:

Lord Lucas moved Amendment No. 14:

Page 3, line 26, leave out from ("Where") to ("or") in line 27 and insert ("a trustee of a trust scheme is removed by an order under section (Prohibition orders)").

On Question, amendment agreed to.

The Earl of Buckinghamshire moved Amendment No. 15:

Page 4, line 1, after ("paid") insert ("reasonable").

The noble Earl said: My Lords, I remind your Lordships that I moved this amendment in Committee. I believe that it is necessary to insert the word "reasonable" in order to have some control over the fees that can be charged by a trustee imposed by OPRA. During the Committee stage my noble friend the Minister said that he would look at the way in which charges for trustees imposed by OPRA were made. I shall be interested to hear his comments having had an opportunity to think about the issue. I beg to move.

Lord Mackay of Ardbrecknish: My Lords, I have considered carefully the representations made by my noble friend and by the noble Lords, Lord Haskel and Lord Monkswell, following the earlier debate on a similar amendment in Committee. However, I still believe that the amendment is unnecessary. Perhaps I may explain to your Lordships why that is the case.

During the earlier debate on the Bill, and in another context, my noble friend Lord Renton highlighted very clearly the difficulty with the word "reasonable". He said that although the word "reasonable" was attractive it gives rise to a great deal of argument in the courts. Where the authority appoints a trustee to a scheme we do not wish to provide a means by which someone can stall the appointment by engaging in time-wasting court action over whether the fees to be charged are reasonable.

It is important that the authority's power to appoint trustees is sufficiently flexible to enable it to set out the terms under which the appointment is made. We accept that, where possible, the appointee should not be a professional trustee. But there will be situations where, in order to secure the interests of scheme members, it will be necessary to appoint professional trustees. This will involve a cost which it is appropriate for the scheme to have to bear. But at the outset, the authority will agree the terms of the appointment including the level of fees to be charged. Scheme members, employers or other trustees will be free to bring to the authority's attention any concerns they have that the terms of the appointment are not being adhered to. If the appointee has abused his position, for example by charging excessive fees, the authority has more than adequate powers to remove the professional trustee; and it would be unlikely to use the services of such a person in the future.

I appreciate the problem to which my noble friend draws our attention. However, I hope that he will agree with me that there is already provision in the Bill to prevent the problem about which he is concerned from arising; and that elsewhere in the Bill the authority has

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appropriate powers to deal with the issue that he raised. After hearing my explanation, I hope that my noble friend will be able to withdraw the amendment.

4.30 p.m.

The Earl of Buckinghamshire: My Lords, I am extremely grateful to the Minister for his full reply. It is extremely important that fees in this area are controlled. Much that he said has gone a long way to reassure me on the issue. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Civil penalties]:

Baroness Hollis of Heigham moved Amendment No. 16:

Page 4, line 27, leave out ("a prescribed amount") and insert ("£5,000").

The noble Baroness said: My Lords, in moving Amendment No. 16, I speak also to Amendments Nos. 18 and 230. I had thought that I would speak also to Amendments Nos. 177 and 229 but there appears some confusion about the grouping. That is a pity because the amendments would have grouped well together.

I use Amendment No. 16 to raise yet again—although I promise your Lordships probably not again at Third Reading —the problem of regulations in the Bill. While the Minister's amendment would have been appropriate since he goes some way to meet some of the concerns as reflected in the scrutiny committee's report, one of the real worries that the Bill raises for industry is the degree to which vital matters are not set out on the face of Bill but are left to regulation—some 200 regulations. No one doubts that much of the detail or insertion of financial figures—they are essential to a Pensions Bill which might need up-rating or adjustment in the future—is best left to regulation. It is essential that the House is not troubled by a continuous repeat of primary legislation to deal with such technical and not significant issues.

But that is not what we are talking about. At numerous points in the Bill, unnecessarily wide—and in our view often dangerously wide—powers are given to the Secretary of State. What powers are we talking about? Clause 6, for example, allows OPRA to appoint a trustee in prescribed circumstances which could have considerable implications for the balance of the trustee board. Clause 9, to which Amendment No. 16 relates, allows authority to impose a penalty whose limit will be determined by regulation. Is that wise, my Lords? Hence we have an amendment which inserts the figure of £5,000.

I did not propose to trouble your Lordships with each and every point relating to clauses. That was the appropriate task at Committee stage. However, Clause 16 enables the Secretary of State to alter at his discretion any or all of the trustee member relationships and arrangements which have been designated by the Bill. Clause 65 allows the Government to modify significantly a public pensions scheme. That is undertaken by the Minister for Social Security by the negative procedure. If it is achieved by anyone else, it is provided for by the affirmative procedure. As the

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scrutiny committee reminded us, whether your Lordships enjoy a procedure by affirmative rather than negative resolution should not depend which Minister handles the issue.

Clauses 106 and 134 allow regulations by the Secretary of State to create a criminal offence by negative procedure. As I understand it, the amendments that we shall deal with tomorrow at least allow that issue to be brought within the framework of an affirmative procedure. That is why those amendments should have been grouped with the amendments that we now consider. Such a procedure helps a little. However, as your Lordships cannot amend or reject the matter, noble Lords have no power effectively to scrutinise the creation of criminal procedure by regulation. The House of Commons can do that, and we have been marginalised. I believe that will matter to your Lordships.

Why are we worried? There are two points. The first may be better made for me by the noble and learned Lord, Lord Simon: that so many and such extensive powers by regulation are given to the Secretary of State without the direct and active scrutiny of both Houses of Parliament. We do not suggest that there is not a proper role for regulation. There clearly is in such a technical Bill. But we believe that such power goes too far in field after field and vests too much in Secretaries of State who may not always be as well intentioned, and I have no doubt as well informed, as is the present Minister.

The second consideration is practical rather than constitutional. The practitioners in the industry—the pension fund managers, the advisers, scheme members, employers, trustees and the like—do not know what wide swathes of the Bill may mean or may come to mean. There is the Bill that we debate and there is a second Bill in the shadows, or in the back pocket of the Secretary of State, which will interpret, cut out, add to or modify the Bill as he sees fit in ways in which the industry cannot forecast, or with consequences that it cannot anticipate. When that will occur, industry does not know. When so much is left to regulation, no one will know what the Secretary of State can do, will do, ought to do, or is likely to do, as the case may be. Those practitioners will not know therefore how those at the sharp end of the business will manage it.

The scrutiny committee shared our constitutional concerns; and to some extent (but only to some extent) those may be met by the amendments which will be moved tomorrow. However, a second set of concerns is practical: the industry will not know where it stands if so much is left to the discretionary power of the Secretary of State and is not available for our scrutiny today. Amendment No. 16 is the only amendment that I ask your Lordships to consider today. But I believe that the Bill leaves far too wide powers to the Secretary of State and, together with some rather unfortunate sloppy drafting, produces for all of us an unfortunate situation. I beg to move.

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