Office of Public Sector Information
PART 1 continued
(1) Section 82 does not preclude the disclosure of restricted information in any case in which disclosure is for the purpose of enabling or assisting the Regulator to exercise its functions.
(2) Subsection (3) applies where, in order to enable or assist the Regulator properly to exercise any of its functions, the Regulator considers it necessary to seek advice from any qualified person on any matter of law, accountancy, valuation or other matter requiring the exercise of professional skill.
(3) Section 82 does not preclude the disclosure by the Regulator to a person qualified to provide that advice of such information as appears to the Regulator to be necessary to ensure that he is properly informed with respect to the matters on which his advice is sought.
Section 82 does not preclude the disclosure of restricted information in any case in which disclosure is for the purpose of enabling or assisting the Board of the Pension Protection Fund to exercise its functions.
(1) Section 82 does not preclude the disclosure by the Regulator of restricted information to any person specified in the first column of Schedule 3 if the Regulator considers that the disclosure would enable or assist that person to exercise the functions specified in relation to him in the second column of that Schedule.
(2) The Secretary of State may after consultation with the Regulator—
(a) by order amend Schedule 3 by—
(i) adding any person exercising regulatory functions and specifying functions in relation to that person,
(ii) removing any person for the time being specified in the Schedule, or
(iii) altering the functions for the time being specified in the Schedule in relation to any person, or
(b) by order restrict the circumstances in which, or impose conditions subject to which, disclosure may be made to any person for the time being specified in the Schedule.
(1) Section 82 does not preclude the disclosure by the Regulator of restricted information to—
(a) the Secretary of State,
(b) the Commissioners of Inland Revenue or their officers, or
(c) the Department for Social Development in Northern Ireland,
if the disclosure appears to the Regulator to be desirable or expedient in the interests of members of occupational pension schemes or personal pension schemes or in the public interest.
(2) Section 82 does not preclude the disclosure of restricted information—
(a) by or on behalf of—
(i) the Regulator, or
(ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c. 42)) which receives the information directly or indirectly from the Regulator,
for any of the purposes specified in section 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings and investigations),
(b) in connection with any proceedings arising out of—
(i) this Act,
(ii) the Welfare Reform and Pensions Act 1999 (c. 30),
(iii) the Pensions Act 1995 (c. 26), or
(iv) the Pension Schemes Act 1993 (c. 48),
or any corresponding enactment in force in Northern Ireland, or any proceedings for breach of trust in relation to an occupational pension scheme,
(c) with a view to the institution of, or otherwise for the purposes of, proceedings under—
(i) section 7 or 8 of the Company Directors Disqualification Act 1986 (c. 46), or
(ii) Article 10 or 11 of the Companies (Northern Ireland) Order 1989 (S.I. 1989/2404 (N.I. 18)) or of the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I. 4)),
(d) in connection with any proceedings under—
(i) the Insolvency Act 1986 (c. 45), or
(ii) the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)),
which the Regulator has instituted or in which it has a right to be heard,
(e) with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise of his professional duties by a solicitor, an actuary, an accountant or an insolvency practitioner,
(f) with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise by a public servant of his functions,
(g) for the purpose of enabling or assisting an authority in a country outside the United Kingdom to exercise functions corresponding to those of the Regulator under this Act, the Welfare Reform and Pensions Act 1999 (c. 30), the Pensions Act 1995 (c. 26) or the Pension Schemes Act 1993 (c. 48), or
(h) in pursuance of a Community obligation.
(3) In subsection (2)(f), “public servant” means an officer or servant of the Crown or of any prescribed authority.
(4) Section 82 does not preclude the disclosure by the Regulator of restricted information to—
(a) the Director of Public Prosecutions,
(b) the Director of Public Prosecutions for Northern Ireland,
(c) the Lord Advocate,
(d) a procurator fiscal, or
(e) a constable.
(5) Section 82 does not preclude the disclosure of restricted information in any case where the disclosure is required by or by virtue of an enactment.
(6) Section 82 does not preclude the disclosure of restricted information in any case where the disclosure is to a Regulator-appointed trustee of an occupational pension scheme for the purpose of enabling or assisting him to exercise his functions in relation to the scheme.
(7) In subsection (6), “Regulator-appointed trustee” means a trustee appointed by the Regulator under section 7 or 23(1) of the Pensions Act 1995 or any corresponding provision in force in Northern Ireland.
(8) Section 82 does not preclude the disclosure by any person mentioned in subsection (1) or (4) of restricted information obtained by the person by virtue of that subsection, if the disclosure is made with the consent of the Regulator.
(9) Section 82 does not preclude the disclosure by any person specified in the first column of Schedule 3 of restricted information obtained by the person by virtue of section 86(1), if the disclosure is made—
(a) with the consent of the Regulator, and
(b) for the purpose of enabling or assisting the person to exercise any functions specified in relation to him in the second column of the Schedule.
(10) Before deciding whether to give its consent to such a disclosure as is mentioned in subsection (8) or (9), the Regulator must take account of any representations made to it, by the person seeking to make the disclosure, as to the desirability of the disclosure or the necessity for it.
(11) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restriction on disclosure of information for overseas purposes) has effect in relation to a disclosure authorised by subsection (2) as it has effect in relation to a disclosure authorised by any of the provisions to which section 17 of that Act applies.
(1) This section applies to information held by any person in the exercise of tax functions about any matter which is relevant, for the purposes of those functions, to tax or duty in the case of an identifiable person (in this section referred to as “tax information”).
(2) No obligation as to secrecy imposed by section 182 of the Finance Act 1989 (c. 26) or otherwise shall prevent the disclosure of tax information to the Regulator for the purpose of enabling or assisting the Regulator to discharge its functions.
(3) Where tax information is disclosed to the Regulator by virtue of subsection (2) above or section 19 of the Anti-terrorism, Crime and Security Act 2001 (disclosure of information held by revenue departments), it must, subject to subsection (4), be treated for the purposes of section 82 as restricted information.
(4) Sections 82(3), 83 to 87 and 235 do not apply to tax information which is disclosed to the Regulator as mentioned in subsection (3), and such information may not be disclosed by the Regulator or any person who receives the information directly or indirectly from the Regulator except—
(a) to, or in accordance with authority given by, the Commissioners of Inland Revenue or the Commissioners of Customs and Excise, or
(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings.
(5) In this section “tax functions” has the same meaning as in section 182 of the Finance Act 1989.
(1) The Regulator may, if it considers it appropriate to do so in any particular case, publish a report of the consideration given by it to the exercise of its functions in relation to that case and the results of that consideration.
(2) The publication of a report under subsection (1) may be in such form and manner as the Regulator considers appropriate.
(3) For the purposes of the law of defamation, the publication of any matter by the Regulator is privileged unless the publication is shown to be made with malice.
(1) The Regulator may issue codes of practice—
(a) containing practical guidance in relation to the exercise of functions under the pensions legislation, and
(b) regarding the standards of conduct and practice expected from those who exercise such functions.
(2) The Regulator must issue one or more such codes of practice relating to the following matters—
(a) what constitutes a “reasonable” period for the purposes of any provision of the pensions legislation (other than any enactment contained in or made by virtue of Part 2) which requires any action to be taken within such a period;
(b) the discharge of the duty imposed by section 69 (duty to notify Regulator of certain events);
(c) the discharge of the duty imposed by section 70 (duty to report breaches of the law);
(d) the discharge of duties imposed on trustees or managers of occupational pension schemes by, or by virtue of, Part 3 (scheme funding);
(e) the discharge of the duties imposed by sections 241 and 242 (member-nominated trustees and directors);
(f) the obligations imposed by sections 247 and 248 (requirements for knowledge and understanding: individual and corporate trustees);
(g) the discharge of the duty imposed by section 49(9)(b) of the Pensions Act 1995 (c. 26) (duty of trustees or managers of occupational pension schemes to report material failures by employers to pay contributions deducted from employee’s earnings timeously);
(h) the discharge of the duties imposed by sections 67 to 67I of that Act (the subsisting rights provisions);
(i) the discharge of the duty imposed by section 88(1) of that Act (duties of trustees and managers of money purchase schemes to report failures to pay employer contributions etc timeously);
(j) the discharge of the duty imposed by section 111A(7A) of the Pension Schemes Act 1993 (c. 48) (duty of trustees or managers of personal pension schemes to report material failures to pay employer contributions timeously);
(k) such other matters as are prescribed for the purposes of this section.
(3) The Regulator may from time to time revise the whole or any part of a code of practice issued under this section and issue that revised code.
(4) A failure on the part of any person to observe any provision of a code of practice does not of itself render that person liable to any legal proceedings.
This is subject to section 13(3)(a) and (8) (power for improvement notice to direct that person complies with code of practice and civil penalties for failure to comply).
(5) A code of practice issued under this section is admissible in evidence in any legal proceedings and, if any provision of such a code appears to the court or tribunal concerned to be relevant to any question arising in the proceedings, it must be taken into account in determining that question.
(6) In this section—
“legal proceedings” includes proceedings of the Pensions Ombudsman, proceedings of the Ombudsman for the Board of the Pension Protection Fund and proceedings of the Board of the Pension Protection Fund under section 207 or 208; and
“the pensions legislation” means any enactment contained in or made by virtue of—
the Pension Schemes Act 1993 (c. 48),
Part 1 of the Pensions Act 1995 (c. 26), other than sections 62 to 66A of that Act (equal treatment),
Part 1 or section 33 of the Welfare Reform and Pensions Act 1999 (c. 30), or
this Act.
(7) Sections 91 and 92 make provision about the procedure to be followed when a code of practice is issued or revoked.
(1) Where the Regulator proposes to issue a code of practice it must prepare and publish a draft of the code.
(2) Where the Regulator publishes a draft under subsection (1), it must consult—
(a) such persons as it considers appropriate, and
(b) any other persons the Secretary of State requires it to consult.
(3) Having considered any representations made on the draft, the Regulator must make such modifications to it as it considers appropriate.
(4) Subsections (2) and (3) do not apply—
(a) to a code made for the purpose only of consolidating other codes issued under section 90, or
(b) to a code if the Secretary of State considers consultation inexpedient by reason of urgency.
(5) If the Regulator determines to proceed with a draft, it must send it to the Secretary of State who—
(a) if he approves of it, must lay it before Parliament, and
(b) if he does not approve of it, must publish details of his reasons for withholding approval.
(6) Where a draft is laid before Parliament under subsection (5)(a)—
(a) if within the period mentioned in subsection (7) either House so resolves, no further proceedings may be taken on the draft code;
(b) if no such resolution is passed, the Regulator must issue the code in the form of the draft.
(7) The period referred to in subsection (6)(a) is the period of 40 days—
(a) beginning with the day on which the draft is laid before Parliament (or, if it is laid before the two Houses on different days, with the later of the two days), and
(b) ignoring any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) The fact that no further proceedings may be taken on a draft code in accordance with subsection (6)(a) does not prevent the laying of a new draft.
(9) A code issued in accordance with subsection (6)(b) shall come into effect on such day as the Secretary of State may by order appoint.
Without prejudice to section 315, such an order may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code of practice brought into operation.
(10) The Regulator must arrange for any code issued by it under section 90 to be published in the way appearing to it to be appropriate.
(11) The Regulator may charge a reasonable fee for providing a person with a copy of a code published under this section.
(12) This section applies to a revised code as it applies to the first issue of a code.
(1) A code of practice may be revoked by the Secretary of State by order.
(2) An order under this section may be made only with the consent of the Regulator.
(3) Without prejudice to section 315, an order under this section may contain such savings as appear to the Secretary of State to be necessary or expedient in connection with the revocation of the code.
(1) The Regulator must determine the procedure that it proposes to follow in relation to the exercise of its regulatory functions.
(2) For the purposes of this Part the “regulatory functions” of the Regulator are—
(a) the power to issue an improvement notice under section 13,
(b) the power to issue a third party notice under section 14,
(c) the reserved regulatory functions (see Schedule 2),
(d) the power to issue a clearance statement under section 42,
(e) the power to issue a notice under section 45(1) approving the details of arrangements,
(f) the power to issue a clearance statement under section 46,
(g) the power to vary or revoke under section 101 (to the extent that it does not fall within paragraph (c)),
(h) the power to make an order under section 154(8),
(i) the power to make an order under section 219(4),
(j) the power to grant or revoke authorisation under section 288,
(k) the power to grant or revoke approval under section 289,
(l) the power to issue a notice under section 293(5),
(m) the power by direction under section 2(3)(a) of the Welfare Reform and Pensions Act 1999 (c. 30) to refuse to register a scheme under section 2 of that Act,
(n) the power to make an order under section 7 of the Pensions Act 1995 (c. 26) appointing a trustee (to the extent that it does not fall within paragraph (c)),
(o) the power to make an order under section 23 of that Act appointing an independent trustee,
(p) the power to give directions under section 72B of that Act (directions facilitating winding up), and
(q) such other functions of the Regulator as may be prescribed.
(3) The Determinations Panel must determine the procedure to be followed by it in relation to any exercise by it on behalf of the Regulator of—
(a) the power to determine whether to exercise a regulatory function, and
(b) where the Panel so determines to exercise a regulatory function, the power to exercise the function in question.
(4) The procedure determined under this section—
(a) must provide for the procedure required under—
(i) section 96 (standard procedure), and
(ii) section 98 (special procedure), and
(b) may include such other procedural requirements as the Regulator or, as the case may be, the Panel considers appropriate.
(5) This section is subject to—
(a) sections 99 to 104 (the remaining provisions concerning the procedure in relation to the regulatory functions), and
(b) any regulations made by the Secretary of State under paragraph 19 of Schedule 1.
(1) The Regulator must issue a statement of the procedure determined under section 93.
(2) The Regulator must arrange for the statement to be published in the way appearing to it to be appropriate.
(3) The Regulator may charge a reasonable fee for providing a person with a copy of the statement.
(4) If the procedure determined under section 93 is changed in a material way, the Regulator must publish a revised statement.
(5) The Regulator must, without delay, give the Secretary of State a copy of any statement which it issues under this section.
(1) The Regulator must comply with the standard procedure (see section 96) or, where section 97 applies, the special procedure (see section 98) in a case where—
(a) the Regulator considers that the exercise of one or more of the regulatory functions may be appropriate, or
(b) an application is made under or by virtue of—
(i) any of the provisions listed in section 10(6), or
(ii) any prescribed provision of this or any other enactment,
for the Regulator to exercise a regulatory function.
(2) For the purposes of section 96, references to the regulatory action under consideration in a particular case are—
(a) in a case falling within subsection (1)(a), references to the exercise of the one or more regulatory functions which the Regulator considers that it may be appropriate to exercise, and
(b) in a case falling within subsection (1)(b), references to the exercise of the regulatory function which is the subject-matter of the application.
(3) Neither section 96 (standard procedure) nor section 98 (special procedure) apply in relation to a determination whether to exercise a regulatory function on a review under section 99 (compulsory review of regulatory action).
(1) The procedure determined under section 93 must make provision for the standard procedure.
(2) The “standard procedure” is a procedure which provides for—
(a) the giving of notice to such persons as it appears to the Regulator would be directly affected by the regulatory action under consideration (a “warning notice”),
(b) those persons to have an opportunity to make representations,
(c) the consideration of any such representations and the determination whether to take the regulatory action under consideration,
(d) the giving of notice of the determination to such persons as appear to the Regulator to be directly affected by it (a “determination notice”),
(e) the determination notice to contain details of the right of referral to the Tribunal under subsection (3),
(f) the form and further content of warning notices and determination notices and the manner in which they are to be given, and
(g) the time limits to be applied at any stage of the procedure.
(3) Where the standard procedure applies, the determination which is the subject-matter of the determination notice may be referred to the Tribunal (see section 102) by—
(a) any person to whom the determination notice is given as required under subsection (2)(d), and
(b) any other person who appears to the Tribunal to be directly affected by the determination.
(4) Subsection (3) does not apply where the determination which is the subject-matter of the determination notice is a determination to issue a clearance statement under section 42 or 46.
(5) Where the determination which is the subject-matter of the determination notice is a determination to exercise a regulatory function and subsection (3) applies, the Regulator must not exercise the function—
(a) during the period within which the determination may be referred to the Tribunal (see section 103(1)), and
(b) if the determination is so referred, until the reference, and any appeal against the Tribunal’s determination, has been finally disposed of.
(6) Subsection (5) does not apply where the determination is a determination to exercise any of the following functions—
(a) the power to make a direction under section 76(8) extending the retention period for documents taken into possession under section 75;
(b) the power to make a direction under section 78(10) extending the retention period for documents taken into possession under that section;
(c) the power to make an order under section 154(8);
(d) the power to make an order under section 219(4);
(e) the power to grant or revoke authorisation under section 288;
(f) the power to grant or revoke approval under section 289;
(g) the power to issue a notice under section 293(5);
(h) the power to make an order under section 3(1) of the Pensions Act 1995 (c. 26) prohibiting a person from being a trustee;
(i) the power to make an order under section 3(3) of that Act revoking such an order;
(j) the power to make an order under section 4(1) of that Act suspending a trustee;
(k) the power to make an order under section 4(2) of that Act extending the period for which an order under section 4(1) of that Act has effect;
(l) the power to make an order under section 4(5) of that Act revoking an order under section 4(1) of that Act suspending a trustee;
(m) the power to make an order under section 7 of that Act appointing a trustee;
(n) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;
(o) the power to make an order under section 23 of that Act appointing an independent trustee;
(p) the power under section 29(5) of that Act to give a notice waiving a disqualification under section 29 of that Act;
(q) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under section 29 of that Act;
(r) the power to give directions under section 72B of that Act facilitating a winding up;
(s) the power by direction under section 99(4) of the Pension Schemes Act 1993 (c. 48) to grant an extension of the period within which the trustees or managers of a scheme are to carry out certain duties;
(t) the power by direction under section 101J(2) of that Act to extend the period for compliance with a transfer notice;
(u) such other regulatory functions as may be prescribed;
(v) the power under section 101(1)(b) to vary or revoke in relation to the exercise of any of the regulatory functions mentioned in paragraphs (a) to (u) other than those mentioned in paragraph (i) or (l).
(1) The special procedure in section 98 (and not the standard procedure) applies to—
(a) a case falling within subsection (2),
(b) a case falling within subsection (3), and
(c) a case falling within subsection (4).
(2) A case falls within this subsection if—
(a) the Regulator considers that it may be necessary to exercise a regulatory function listed in subsection (5) immediately because there is, or the Regulator considers it likely that if a warning notice were to be given there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme,
(b) the Regulator accordingly dispenses with the giving of a warning notice and an opportunity to make representations as described in section 96(2)(a) and (b), and
(c) the Regulator determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
(3) A case falls within this subsection if—
(a) the Regulator gives a warning notice as described in section 96(2)(a) in relation to a determination whether to exercise a regulatory function listed in subsection (5), and
(b) before it has considered the representations of those persons to whom the warning notice is given, the Regulator determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
(4) A case falls within this subsection if the Regulator—
(a) gives a warning notice as described in section 96(2)(a) in relation to a determination whether to exercise a regulatory function which—
(i) is listed in subsection (5), and
(ii) is not a function listed in section 96(6) (functions which may be exercised immediately under the standard procedure),
(b) considers the representations of those persons to whom the warning notice is given, and
(c) determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to—
(i) the interests of members under an occupational or personal pension scheme, or
(ii) the assets of such a scheme.
Pensions Act 2004