Ian Chapman-Curry
Legal Director
PSL legal director
Podcast
28
Hello, and welcome to the Month In Pensions for December 2020, brought to you by the pensions team at Gowling WLG.
I'm Ian Chapman-Curry and, in a bit of a different format for the podcast, we'll be using the December episode to look forward to what we can expect in the world of pensions in 2021.
Before we start, just a quick reminder that you can find out more about the pensions team at Gowling WLG and get all of our pension Insights at gowlingwlg.com/pensions-uk.
Brexit and COVID-19 have meant that 'business as usual' has been delayed in the world of pensions legislation, regulation and policy. As a result, 2021 looks set to be a very busy year, with projects held over from 2018, 2019 and 2020 set to launch. To put all of these developments into context, we've grouped these highlights into ten key developments that will have the most impact on the pensions industry in 2021.
The Pension Schemes Bill is likely to receive Royal Assent early in 2021 and become the Pension Schemes Act 2021. It promises to be a key legislative foundation underpinning many of the developments in pensions in 2021 and beyond. The Bill sets out:
In addition, the Bill will tighten the rules on DB pension transfers and put in place statutory amendments for the Pension Protection Fund (PPF) to take account of the ruling in Hughes and others.
Strengthening the powers of The Pensions Regulator is one of the key aspects of the Pension Schemes Bill. These include measures to:
The precise nature of the additional notifiable events will be prescribed in regulations, but government consultation documents indicate that they will initially focus on corporate transactions, including:
The first of the notifiable events mentioned are already set out in regulations. The subsequent two will be introduced for the first time in forthcoming regulations. In addition to making a report to TPR, employers will need to:
The declaration of intent will require the employer to set out information on the notifiable event and to explain how any detriment to the pension scheme is to be mitigated.
All of these additional powers will enable The Pensions Regulator to continue its development as a more visible and proactive regulator. With the prospect of economic difficulties lasting throughout 2021, this year will be a test of its pledge to be 'clearer, quicker and tougher'.
The Bill provides the legislative foundation for a change to the statutory DB funding regime. This will be augmented by TPR's revised code of practice on DB funding. The Bill will require the trustees of DB schemes to:
In addition, the Bill lays the groundwork for TPR to issue revised guidance on DB funding. This will focus on setting clearer funding standards, with key principles covering:
At this stage, it is envisaged that a second consultation on the revised code will be issued in the first quarter of 2021 and the revised code will come into force at the end of 2021.
TPR currently maintains 15 codes of practice, covering everything from reporting breaches of the law to the authorisation of master trusts. TPR's codes of practice aim to provide:
In July 2019, TPR announced that it was reviewing its codes of practice. As a result, the codes of practice will be:
TPR intends to make the Single Code "quicker to find, use and update, so that trustees and managers of all types of scheme can be more responsive to changes in regulation". As well as revising the DB funding code of practice (see Section 3 – A new funding regime for defined benefit pension schemes above), TPR will focus initially on updating the codes most affected by the Governance Regulations (i.e. code of practice 9 (on internal controls) and code of practice 13 (the defined contribution code)). Formal consultation is now expected early in 2021, with the aim of a completely updated Single Code going into force at the end of 2021 / beginning of 2022.
Trustees will need to stay on top of the developing Single Code. In particular, TPR's guidance and examples on effective systems of governance will build on the requirements set out in the Governance Regulations. Once again, governance will be top of the agenda for trustee boards in the coming year.
2020 was the year that environmental, social and governance (ESG) issues rose to the top of many trustee agendas. 2021 will see this interest develop, with an increasing focus on climate responsible investing.
The Bill gives the government the power to introduce secondary legislation requiring disclosures based on the Taskforce on Climate-related Disclosures (TCFD). The Department for Work and Pensions (DWP) has issued draft regulations for consultation. The proposed regulations cover:
The Climate Governance Requirements will apply to the largest occupational pension schemes first:
The TCFD Disclosure Requirements will also apply to the largest occupational pension schemes first, applying by the earliest of:
Both the Climate Governance Requirements and the TCFD Disclosure Requirements will apply to all authorised master trusts and authorised CDC schemes in line with the dates set out above for schemes with over £5 billion in assets.
In addition to these reporting requirements, the Pensions Climate Risk Industry Group has issued non-statutory guidance for the trustees of occupational pension schemes on assessing, managing and reporting climate-related risks. This guidance is likely to go into force in the first quarter of 2021.
Finally, the FCA has announced that it intends to consult on implementing TCFD Disclosure Requirements for asset managers and contract-based schemes in the first half of 2021. The rules are expected to be finalised by the end of 2021 and go into force at the beginning of 2022.
There have been developments that make it seem likely that 2021 will see superfunds make their mark. In October 2020, TPR published new guidance for trustees and employers considering a transaction with a superfund. This was preceded by comments made by the pensions minister that new primary legislation focusing on superfunds should be expected after the Bill has received Royal Assent.
As a result, 2021 will see a legislative and regulatory framework develop to govern the operation of superfunds, which will increase confidence on the part of trustees. The weakening of many sponsors' covenants will also make the superfund option look more attractive, relative to the status quo, for the trustees of their pension schemes. So, will 2021 be the year of the first successful superfund transaction?
The UK withdrew from membership of the European Union (EU) at 11pm on 31 January 2020. Brexit was not, however, achieved in practice because of the transitional period under which the UK and EU's legal relationship was maintained as if the UK remained a member state of the EU. Brexit becomes a day to day reality for 2021 and beyond, when the transitional period came to an end at 11pm on 31 December 2020.
UK and EU negotiators agreed the EU-UK Trade and Cooperation Agreement, a free trade agreement that went into force following the end of the transitional period. It is, however, likely to take many more years before all of the issues are ironed out. In the meantime, trustees of DB and defined contribution (DC) pension schemes had to get ready to deal with the consequences of the change in the UK's relationship with the EU without knowing exactly what that change will be.
Now that a cliff edge 'no deal' scenario has been averted, some of the key considerations for trustees include:
Ensuring better outcomes for people saving in DC schemes has been a theme of government action over the past decade. This has become even more important with:
The latest policy push has come in the form of a consultation entitled 'Improving outcomes for members of defined contribution pension schemes' (the DC Consultation). Changes resulting from the DC Consultation are expected to come into force in 2021. The DC Consultation sets out:
The amendments to bring in the changes set out above are scheduled to come into effect on 5 October 2021. For more information on this, click here for our Insight 'Improving member outcomes: what next for Defined Contribution pension schemes?'.
In addition, it is likely that next year will continue the trend of occupational DC schemes transferring to master trusts. This is another form of consolidation, with master trusts having a tighter regulatory framework and often having greater resources to focus on governance and improving member outcomes.
2021 looks set to be the year that the government finalises its plans to deal with discrimination in public sector pension schemes ready for implementation in 2022.
This issue arose out of the 2014/15 reforms to public sector pension schemes. Members who were within 10 years of retirement were given transitional protection against the introduction of the new benefit structure.
These transitional protections were the subject of legal challenges by some members of the judges' and firefighters' pension schemes (the 'McCloud' and 'Sergeant' cases respectively). In December 2018, the Court of Appeal ruled that the transitional protection arrangements unlawfully discriminated against the younger members of these schemes.
The government announced that it would remedy the discrimination arising from the transitional protections in respect of all public service pension schemes, with consultations issued in mid-June 2020.
Public sector employers and certain private sector contractors providing outsourced services to the public sector will have to grapple with issues such as:
Private sector contractors may, where possible, look to exit the public sector schemes. This could trigger financial liabilities which will need careful management. Contractors who operate their own 'broadly comparable schemes' will also need to consider what steps they need to take to remove any discrimination issues which arise from having 'mirrored' the public sector schemes.
Pensions dashboards are the public facing user interfaces that will enable individuals to:
The Bill sets out the primary legislative framework for pensions dashboards. The government hasn't, however, been waiting for the Bill to become an Act of Parliament to get started on delivering pensions dashboards. In 2020, the Pensions Dashboards Programme (part of the Money and Pensions Service) was made responsible for:
The Pensions Dashboards Programme is also responsible for delivering:
The Money and Pensions Service will be responsible for building a pension dashboard based on the digital architecture set up by the Pensions Dashboards Programme. In 2021, the Pensions Dashboards Programme will:
Once this is done, the Pensions Dashboards Programme will be able to work with their commercial and industry partners to build, integrate and test the digital architecture.
Legal duties to participate in pensions dashboards will be staged, applying to the largest pension schemes first. It is currently envisaged that this will start in 2023, with a period of voluntary participation starting in 2022. Schemes should, however, start to think about the steps they can take now to ensure that their data is ready for pensions dashboards.
And that is nearly all from The Month In Pensions for December 2020. We always finish off with a non-pensions recommendation - something a little lighter than reading the predictions for the year to come from every professional services firm.
Before we get to that, just a reminder that you can get in touch if there are any items you'd like to see covered in future episodes of The Month In Pensions - just contact me, Ian Chapman-Curry - my contact details are at tinyurl.com/GWLGICC and you can get more from the pensions team at gowlingwlg.com/pensions-uk.
If you liked this podcast, please rate or review it and, if you hit the subscribe button, The Month In Pensions will appear in your podcast feed each month. Finally, please feel free to share the podcast with colleagues or anyone who might be interested in staying on top of developments in the pensions world.
In The Month In Pensions for December 2020, Ian Chapman-Curry focuses on the key trends and developments that will dominate the world of pensions in 2021. With a backlog of legislative, regulatory and policy developments, 2021 promises to be a busy year for anyone working in the pensions industry.
With so much going on, we've brought together ten key trends covering the most important issues that will dominate agendas and work streams throughout the year. Make sure that you stay ahead of the curve with our guide to pensions in 2021.
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