Pensions Bill

My Lords, the amendment would strengthen the statutory defence in favour of the person who could be subject to a contribution notice issued under the material detriment test. It would limit the regulator by strengthening P’s defence in relation to condition B, enabling them to show that they had taken ““steps which would reasonably”” eliminate or minimise potential detriment, rather than ““all reasonable steps””. It is important for the operation of the defence that P should be able to show that he or she has taken all reasonable steps, not the likelihood of the steps taken eliminating or minimising the potential risk. If the defence was amended as the noble Baroness suggests, it would make it unclear who would judge whether the steps taken were indeed ““steps which would reasonably”” eliminate or minimise potential detriment, which would make it much harder for parties and the regulator to operate. Parties might need to seek the view of the court as to whether they had taken ““steps which would reasonably”” eliminate or minimise potential detriment. This could be costly and unnecessary. The intention is not that the defendant should have to take every step possible. Once P was satisfied that the potential detriment was minimised or eliminated, there would be no more reasonable steps for them to take. On this basis, and in light of my earlier explanation of the Government’s thinking behind the statutory defence, I hope that the amendment will be withdrawn. I hope that the noble Baroness will take comfort from that level of assurance.