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Lord Mackay of Ardbrecknish: The point, as with so many Acts of Parliament, is that what the Bill is about cannot be quickly ascertained from one or two clauses. One has to look at what the whole Bill does. I have made the point before that our defences against a Maxwell Mark 2 are not just contained in the OPRA; they are contained in various provisions throughout the Bill. I shall therefore resist the temptation to think about introducing a general, all-encompassing paragraph which would explain to the ordinary readerI wonder how many ordinary readers of government Bills and Acts there arewhat the Bill sets out to do. The explanatory note exists to do that in terms more understandable to the layman.
The point about the amendment is not that it sets out what it is envisaged the authority should do in the rest of the Bill; it gives it an additional responsibility. I dealt with that issue on Amendment No. 1 when the same point arose. Should this regulatory body have an obligation to monitor, on an ongoing basis, month by month, or week by weekI am not sure which150,000 pension schemes? I have already accepted, in response to the noble Baroness, Lady Hollis, that we depart from the PLRC recommendations on the question of routine monitoring. I have explained why. It is that I do not believe that the bureaucracy and costs would justify it. It is much more important that the regulatory authority should concentrate its attention on those schemes whereas the phrase isthe whistle has been blown or on those schemes which, acknowledging the wider interest it will build up over time, give it cause for concern, and that it should investigate those in particular rather than spend lots of time, energy and money monitoring schemes which are being run adequately.
I understand fully the noble Baroness's desire to have a belt and braces operation here; I do not believe that it would be sensible. I am not sure how I mix this metaphor, but the authority would become so obsessed with just monitoring that it would cease to act in the purposeful and direct way that we all want to see when a scheme which may be going wrong is brought to its attention.
Lord Ezra: As a matter of presentation, it is wrong that a Bill of this importance should start by saying that an authority is to be appointed, leaving the reader or user of the legislation to plough through the whole document to find out what it does. I can mention many Acts of Parliament in which authorities and bodies are set up and where, in a normal, logical, course of events, a summary of their functions and duties is set out.
Baroness Hollis of Heigham: I support the remarks of the noble Lord, Lord Ezra. On this issue the Government's voice, and presumably their vote, is on the side of obscurity versus clarity; on the side of leaving it unknown rather than having it made public; and on the side of inviting all 11 million or 15 million members of pension schemes to plough through a Bill rather than have it up front.
What are the Government frightened of? Why are they so reluctant to follow their own precedent in similar legislation in spelling out what are the duties, functions and purposes of a regulatory authority? Why do they expect that in this caseit is a Bill which probably affects more citizens of this country than most that come before the Housepeople should not know where they stand? Our only assumption can be that the Government want to keep power to themselves, not just in the form of knowledge but in the form of power to make regulations so that they may seek to shift policy after the event. The Government's position on the issue of clarity, information, and guidance to trustees is already clearly on the side of concealing what they are entitled to know.
The Earl of Clanwilliam: The generality of the suggestion by the Opposition that there should be more clarity on the face of the Bill is one with which I have some sympathy. Nevertheless, on this issue it would be folly to ask the body to look after 150,000 pension plans. The cost of the body will be imposed upon the industry. It would add enormously to the costs to the industry, which are already prohibitive.
Baroness Seear: I do not agree with what the Minister said about monitoring. If the Minister will not accept the amendment, will he look at what he considers to be an appropriate statement of what the authority should be doing, the point made by my noble friend Lord Ezra? He does not like the idea of putting in monitoring. There are two points to the amendment. We want monitoring included, but we also want a clear statement at the beginning of the Bill so that people reading it do not have to go through the whole thing to extract from it what the authority, which is a key part of the whole exercise, is there to do.
Lord Mackay of Ardbrecknish: I shall probably ask for the Coal Industry Nationalisation Act 1946, although it is not a good precedent because I hope that this regulatory authority will be a good deal more successful in the long term than that Act, and the company it set up, has been. This is a complicated matter. Pensions are complicated. I should have thought that we could all agree about that.
The idea that we can deal with such a complicated matter in simple terms and hope that those terms will stand up to interpretation in courts of law and the like is, I am afraidmuch as I should like to go down that roada rather simplistic view of how legislation can be framed. Whether we like it or not, legislation has to be framed in a complex way to ensure that our intentions stand the test of time and being tested in courts.
If the Committee is saying to me that there should be some kind of document that an ordinary person can look at to see what the regulator will do, the Committee might just think about pressing me to ensure that the authority will publish such a layman's guide to its role and responsibilities. I should be happy to take that suggestion away, but so far as thinking that I can have the Bill redrafted in such a way that the layman would be able to understand it at a glance is not living in the real world and protecting ourselves against real problems. For how many minutes does the Committee believe that a Bill drafted so that a layman can understand it would resist attacks from someone such as Maxwell and the team of people that he could get behind him? I believe that what Members of the Committee are asking me to do
Baroness Seear: The Minister is misunderstanding what we are saying. We are not suggesting that he should encapsulate at the beginning of the Bill everything that is in it. We are saying that, since the Minister does not like the monitoring provision, he should look at our amendment to see whether in six or seven lines he can set out the duty of the authority. He must know what its duty is and be able to set that out in his own words. At least people will see on the face of the Bill what the authority is there to do. We are suggesting that he should redraft the proposal in terms of what he wants, but that the duty should be set out on the face of the Bill so that it is plain.
Lord Mackay of Ardbrecknish: We appear to be having two parallel arguments; an argument about enlarging the powers of the body to monitor all 150,000 pension schemeswhich I have clearly said I do not believe is sensibleand a parallel argument that somewhere at the beginning of the Bill we should try to sum up in half-a-dozen lines the remaining clauses in order that someone can quickly understand what the authority is about. I have indicated that I hope that the Committee will reject the former proposal.
As regards the latter proposal, I understand the point being made. However, I am not sure whether the Bill is the correct place for an easy guide to the regulatory authority's duties. I am not sure whether many people will be able to pick up or to purchase what will be an Act of Parliament in order to find the guide. The proper solution may be for me to consider the points that have been raised and to assess the possibility of the authority setting out an easy guide to its responsibilities.
Baroness Turner of Camden: I am glad that at least in some degree the Minister has responded by saying that he will look at the possibility of a guide being issued. However, as he rightly said, that is not the point
We have in mind what Goode probably had in mindthat there should be in operation a programme of spot checks so that those running the 150,000 schemes would not know when an inspector would call. It is clear that Goode was thinking in terms of a system of spot checks rather than the detailed monitoring of all the occupational pension schemes.
From our point of view, it would be a good idea to take away what the Minister has said to see whether we can redraft the amendment in order to fulfil some of the functions. In the meantime, I hope that the Minister will take on board what was said by the noble Baroness, Lady Seear, and the noble Lord, Lord Ezra: it is unsatisfactory to have an authority set up under legislation without a clear statement of its new duties. It is unsatisfactory to have to plough through a Bill to discover the full package of its functions. I do not believe that that applies to most legislation, and I see no reason why a simple paragraph setting out the authority's precise functions cannot be inserted at the beginning of the Bill. They may be the limited functions which the Minister now says he perceives for the authority rather than the functions envisaged by the Goode Committee.