Today Fiduciary Duty’s whatever you want ; trustees need direction.

I had no idea that this amendment was in the pipeline for discussion at yesterday’s parliamentary session devoted to amendments of the Pension Schemes Bill.

I  agree. It is the message of Will Hutton when he speaks at pension meetings, it is the message of Torsten Bell and through the Pension Schemes Bill.

What a shame that the parliamentary hall was so sparsely filled with MPs. How lucky we are to have Catherine Howarth to help the amendment along. Here she is on social media .

Yesterday in Parliament it was just brilliant to hear Rt Hon Liam Byrne MP speak in support of the amendment he tabled (NC17) to the Pension Schemes Bill. 33 other MPs from a range of parties have lent their names to this critical amendment.

The amendment, if passed into law, will clarify the fiduciary duties of UK pension schemes. This overdue reform could unlock significant investment in the domestic economy of the UK by giving explicit legal permission to schemes to consider factors such as their members’ standards of living, members’ views, and the impacts of scheme investments when making investment decisions.

This proposal is strongly aligned with the policy objectives of the UK government’s pensions reform agenda, including the Bill itself.

It was hugely welcome to hear Torsten Bell, the Minister for Pensions, “agree that more clarity about the ability of trustees to take into account such factors would help.” He also agreed, “There is good support in the [pensions] industry for providing that clarity, giving added confidence to trustees that they can invest in the long-term interests of their members and our society.”

The minister has committed to legislate to address the confusion over legal duties of pension scheme and their trustees, which we warmly welcome. Statutory guidance, as the minister proposed yesterday, is necessary. However, statutory guidance alone would not address legal uncertainty since it need not be followed, and, on its own, is at risk of potential misuse by a future government. Such problems could be avoided and the current lack of clarity would be resolved with legislation backed by statutory guidance, as proposed in Amendment NC17.

The Bill now moves to the House of Lords. Stay tuned for further debates and developments.

The idea that trustees can individually determine the best for the member leads us to members choosing for themselves, the Thatcherite ideal of self-determination on where retirement funds are invested- each according to their personal beliefs with the state standing aside.

Trustees want to determine what they think is best for members in DC schemes by complying to a view that global diversification according to market weights is least likely to go wrong. The idea that being “passive” to what the markets tell us is how DC defaults should be invested is predominate.

The approach taken by this Government when it comes to such investment is to intervene and threaten mandate because fiduciary duty leads to a conformity around passive acceptance of what passive global diversified funds tell us. It is infact capitulation.

Those who want our pensions to invest not just for the financial good of the few but the social improvement of the many, are ready for our pension fund to adopt the Mansion House agreement and want trustees to as increasingly our best funds do. Look to where best practice is happening and look for the LGPS pools – which are now down to a hard core of active managers, look to the investment strategy of Nest and Peoples and the other large DC funds and here you see an approach to the needs not just of members but to the society that they will live in.

Share Action have known for decades that intervention is needed for good to win through and they are right to be heard in parliament through Liam Byrne and behind him Torsten Bell.

About henry tapper

Founder of the Pension PlayPen,, partner of Stella, father of Olly . I am the Pension Plowman
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2 Responses to Today Fiduciary Duty’s whatever you want ; trustees need direction.

  1. Byron McKeeby says:

    Lawyers who read these blogs may correct me if I’m wrong, but I’ve always thought US pensions law considers many advisers as fiduciaries, as well as trustees, whereas in the UK the professionals have successfully lobbied to be considered as mere agents, making trustees the only fiduciaries.

    The use of “fiduciary manager” to describe certain UK asset management arrangements has always seemed a misnomer to me.

  2. jnamdoc says:

    I’d planned an early night but this blog caught my eye.

    This is poppycock from Mr Byrne, and he should know better.
    Its over regulation that has proved catastrophic for the pension provisions for working people. We need less regulation, and more real responsibilities upon Trustees. Trying to fix the last catastrophic mandation of gilt funding, now with a counter-balance to invest, will not work, unless its unfettered free market investment. The danger of course is that what they really want is investment on their pet (social) projects because falling tax revenues (lack of growth) are making them unaffordable for our nation. Social spending should be the spoils of an economy (in surplus), not the purpose.

    2 decades of regulatory induced de-risking, resulting in the greatest and truly staggering level of mandation (into single issuer gilts – no diversification there!) witnessed across all leading western economies, and so yes it is no surprise we stripped the UK of risk capital and growth.

    Investment carries risk, so reward that (rather than punish as the PPF levy did) and fix the system through tax incentives for UK incomes and gains for pension schemes.

    Gov’t mandation is but the next of a long long line of almost unbroken poor policy and regulatory interventions over the last 20 years. We (passive as an industry, and drunk on the fees off the buy-in premiums) have really messed this up by not doing our job – sticking up for the members.

    The plethora of lawyers parachuted on Trustees board, too cautious and devoid of investment belief or nous, and beholden to regulatory grace and favour, swallowed and became apostles for the rule book on de-risking without thinking or caring about its implications on a system wide basis.

    All trustees need to be reminded of their core duties to protect, preserve and enhance, Too much political emphasis this last 20 years on the first of those tenants, and not enough on the last. And on investments, must be centred around the fundamentals of positive returns and diversification. Its not that complicated, really!

    Invest sensibly for the long term, with appropriate diversification based on the fundamentals. Investment = growth = pensions. No growth, no pensions. Simples!

    Regulation and growth are not natural bedfellows.

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