Pensions Bill

My Lords, these amendments remove the regulator’s ability to determine the relevant time for a failure to act that lasted over a period of time and for a series of acts. The first amendment states that in relation to a failure to act that continued for a period, the relevant time should be at the end of that period, but that would not work where that period had not come to an end. That could open up a loophole, in that the regulator would be prevented from issuing a contribution notice in an otherwise appropriate case, simply because the person was party to a failure to act, and that failure was ongoing and potentially never ending. The second amendment would make it unclear how to determine relevant time at all in relation to a series of acts or failures, which would create new uncertainty for business. I consider that it is right for the regulator to have discretion here, but its public law duties to be reasonable mean that it can take into account representations about the meaning of relevant time in particular cases. The regulator remains available to discuss whether transactions should come for clearance and will be updating its clearance guidance in the light of these amendments. The regulator already has discretion under Section 39(4)(b)(ii) of the 2004 Act to determine the relevant time for a failure to act that continues over a period, and the relevant time here is used to calculate the debt under Section 75 of the 1995 Act, which is the upper limit of the amount of the contribution notice. A series of acts or failures is also likely to continue over a period and therefore there needs to be a similar method of calculation, but it is particularly to address the issue that if we are talking about failures to act, rather than acts that are positive events, they could continue unabated and there would never be a trigger for the relevant time. That is why we believe it is important, subject to the bounds of what is reasonable and the broader public duties imposed on the regulator, to have that discretion.