The Board has been made aware that a number of administering authorities have received letters that allege that they are acting unlawfully by holding, and failing to divest from, investments in companies which have been linked to the ongoing situation in the Middle East. Specifically, Counsel was asked for an opinion on the allegation that funds might face future criminal action by the International Court of Justice or have liability in domestic law under the Terrorism Act 2000 or the International Criminal Court Act 2001, as a result of holding such investments.
In order to help administering authorities to assess these accusations and respond appropriately, the Board has sought leading Counsel advice on behalf of the scheme. That legal advice is now available.
The Secretariat hopes this advice assists funds in responding to this, or similar, letters but advises that funds should still seek their own legal advice in relation to their specific circumstances and investments. The advice is also limited to the question of whether any specific criminal liability attaches to the holding of these investments, and not whether it is appropriate for funds to choose to divest.
After considering the initial legal advice of Lydia Seymour (Counsel) on the issue of members opting out of the LGPS on the basis of their (principally Islamic) religious belief, the Board commissioned Mufti Faraz Adam of Amanah Advisors to produce a report into the relationship between Sharia Law and the LGPS. The author’s expertise in Islamic finance and legal principles shaped his advice on whether the LGPS is Sharia compliant, and the range of views that are likely to be held by Muslim members and potential members.
Mufti Faraz Adam's report concluded as a part of the contractual arrangement between employer and employees, Muslim employees can continue to contribute to, and benefit from, the excellent benefits offered by the LGPS. A summary of the underlying rationale can be found on the SAB homepage (story dated 23rd January 2024).
The Board approached Counsel following the receipt of this report to update her initial legal advice on the outstanding questions from her 2022 advice. The key messages from her advice are that the legal risk of a case being successfully brought against a scheme employer in an Employment Tribunal on the basis of indirect discrimination, or a judicial review being brought against an administering authority or the Department for Levelling Up, Housing and Communities (DLUHC) for breach of the public sector equality duty, remain extremely low. The summary of Counsel’s advice can be found here
This summary was drafted with the assistance of the Board's legal adviser in order to summarise the arguments made and outcome of the judicial review brought by the FBU and BMA in relation to the decision by the government to include McCloud remediation costs within the scope of the cost control mechanism (often referred to as the “employer cost cap”) applying to all public service pension schemes under the Public Service Pensions Act 2013.
The judge found in favour of the Government on all grounds. However, at the time this update, leave to appeal against this decision has been granted although the case has not yet been listed by the Court of Appeal for a hearing. Whilst a long-stop date of July 2024 has been set, we would expect the appeal hearing will take place in late 2023 or early 2024.
The summary represents the views of the SAB and does not constitute legal advice nor should it be relied upon or treated as a substitute for specific legal advice relevant to particular circumstances.
The Board regularly carries out surveys of funds to help fulfil its dual statutory functions;
- To provide advice to the Secretary of State on the desirability of making changes to the Scheme and
- To provide advice to administering authorities and local pension boards in relation to the effective and efficient administration and management of the Scheme.
The Board recently obtained legal advice from Squire Patton Boggs to make sure that it is correctly balancing these functions with the obligations under GDPR and the Equalities Act 2010. It also asked whether funds needed to do anything to ensure they were acting in line with their own GDPR obligations as data controllers.
That advice has now been received, it confirms that:
- The Board has a lawful basis for requesting data from funds under GDPR, namely, to carry out its public tasks. Please see the discussion at para 4.1(d).
- Funds may want to consider amending their standard member privacy notices to make it explicit that the Board will collect data from them for statistical purposes. If they do amend those notices, then funds will also want to consider how to draw this to their members’ attention in the same way as other changes to the policy. Discussion of this is at paragraphs 4.3 and 4.4.
- While the advice indicates that there is no barrier to funds sharing scheme member personal data (SMPD) with the Board (see paragraphs 4.2 and 4.6), it is not the Board’s intention to ever collect SMPD through surveys. The Board will only request anonymised data and will make this clear in all future surveys. This is in line with the established principle that data should be anonymised at the earliest possible stage (see para 4.5). Consequently, the Board does not intend to put in place data sharing agreements with funds, as this might create the impression that it did want to receive SMPD.
While GAD wasn’t the client for this advice (and is responsible for satisfying itself that it has a lawful basis for its use of SMPD) no material concerns were identified in relation to the lawful basis relied upon by the GAD for the generation of the Gender Pensions Gap report.
Following a request by an administering authority an opinion was sought from James Goudie QC on the legal position of employers who may wish to prepay employer and employees LGPS contributions. The opinion finds no legal barrier as such but makes clear that any actions should be taken on the basis of 'reasonableness, proportionality and prudence'. Employers should, in the case of employee contributions, 'notify the administering authority of the payment being chosen to be made' and for employer contributions ensure that any 'prepayment and discount should be apparent on a fair reading' of the rates and adjustment certificate which should also 'reflect the actual payment arrangements'. Please note this is a general opinion which does not reflect the particular circumstances of any administering authority or employer, therefore any employer wishing to consider such an action may wish to take their own legal advice.
This summary was drafted with the assistance of the Board's legal adviser in order to attempt to clarify the impact of the judgement in the case of Palestine Solidarity Campaign and another v Secretary of State for Housing Communities and Local Government on LGPS administering authorities. The summary concludes that the fundamental duties and responsibilities of authorities are not altered by the judgement, in particular that authorities remain responsible for investment decisions.
Should the authority wish to consider non financial factors in its investment decisions it may do so taking into account the requirements of the guidance including the potential financial impact and the views of members. Such consideration may legally result in boycotts or disinvestment should the authority decide to take such action.
The summary represents the views of the SAB and does not constitute legal advice nor should it be relied upon or treated as a substitute for specific legal advice relevant to particular circumstances.
(Summary, Supreme Court decision on LGPS investment guidance, pdf 5 pages 190kb)
Leading Counsel was asked to advise in consultation and in writing on a number of questions and in general covering Fair Deal, TUPE legislation, Automatic Enrolment legislation and employer groups:
(Opinion, Scheme Employer Wholly Owned Companies, pdf 9 pages 202kb)
The Scheme Advisory Board agreed at its meeting on the 16th November 2017 that in the wake of recent legal judgements, a statement on the legal landscape relating to the impact of non-financial considerations on investment decisions should be published. A copy of the document to assist those advising on or making investment decisions can be found here:
The Local Government Association (“the LGA”) instructed Nigel Giffin QC to provide opinion on the issue concerning the extent to which a local authority or other body which is the administering authority of a fund established for the purposes of the Local Government Pension Scheme (“LGPS”) might in that connection be subject to regulation by the Financial Conduct Authority (“FCA”) pursuant to the Financial Services and Markets Act 2000 (“FSMA”).
(Opinion, Legal position of LGPS FCA Opinion - of Nigel Giffin QC, pdf 12 pages 105kb)
Mr Giffin concluded that:
In managing an LGPS fund, the administering authority is not carrying on a regulated activity, and does not require FSMA authorisation. Nor do the substantive provisions of CASS apply to the activities of an administering authority acting as such, even though that authority may have FSMA authorisation for some other reason.
A number of stakeholders have raised question regarding the legal status of local pension boards in particular their legal relationship with the authority acting as scheme manager. Accordingly LGA approached James Goudie QC for a view against the following questions.
1. The legal status of an LGPS Pension Board
2. The legal relationship between the Pension Board and the LGPS Administering Authority (i.e. Scheme Manager)
3. Whether there is a conflict between the requirements of the 1972 Act and the 2013 Act with regard to membership of Section 5(7) Combined Committee Boards?
4. Generally on any other issues relevant to this matter
(Opinion, Legal position of local pension boards, PDF 204kb)
In his opinion, Mr Goudie concluded that:-
1. Local pension boards are constituted entirely under the Public Service Pensions Act 2013 and are not local authority committees. He goes on to point out some of the practical difficulties that arise from this view such as access to council officers and indemnity insurance cover.
2. In his view the relationship is entirely that set out in the PSP Act 2013.
3. There are conflicts between 1972 Act and the 2013 Act but they are not mutually exclusive and it is possible for a combined committee/board to exist however in his view ‘An administering authority should think long and hard before choosing to go down the combined role route’.
4. The advice then goes on to point out the difficulties in this area in particular his view that a pensions committee with investment decision making powers is a finance committee and is therefore restricted in its membership.
The opinion was adopted by the Board at the meeting of 25th January. The Board will review their guidance on pension boards and scheme managers are advised to review their pension board arrangements having regard to this opinion
Background
The Shadow Scheme Advisory Board for the Local Government Pension Scheme (LGPS) in England and Wales was established in July 2013. It is the forerunner to the Local Government Pension Scheme Advisory Board, which is established under Section 7 of the Public Service Pensions Act 2013. The Board has been set up prior to the formalisation of the regulations setting out the formal remit of the Scheme Advisory Board, which are expected to come into force in early 2015.
Last year, the Board sought and published advice from Counsel on fiduciary duty in the LGPS, Following this, further advice has been commissioned to cover:
- confirmation of the requirement to meet benefit payments separate from the status of funds; and
- the interaction between the LGPS and the EU Institutions for Occupational Retirement Provision (IORP) Directive 2003.
(Opinion, Finance and Regulation of the LGPS, PDF 180KB)
The benefit 'guarantee'
The generally accepted position in the LGPS was that the Administering Authority was required to meet benefit payments on a statutory basis regardless of the circumstances of the fund it operates. In the event, Nigel Giffin QC finds that the assumed position above is not reflected in the regulations resulting in a potential (if extremely unlikely given the strength of local government finance requirements) circumstance of there being an uncertainty around benefit payments should the funds be unable to meet them.
Such a situation, however unlikely, is in the Board's view untenable and therefore the Board will be asking DCLG to amend regulations in order to clarify the requirement for administering authorities to pay benefits on a statutory basis.
The IORP
In Counsel's view the requirements of article 8 (which sets out that there should be legal separations between sponsoring employers and pension schemes) are met by the regulations but he accepts that regulations could be more explicit on the use of fund monies and that model structures such as South Yorkshire present no possible issues for compliance. The Board will continue to look at the issue of separation between fund and authority and will consider the content of this opinion as part of that work.
In terms of article 18 (which details how investments should be made in institutions for occupational retirement provision), Counsel makes some suggestions to strengthen regulations to ensure full compliance but reminds Administering Authorities that they should act in accordance with the Directive regardless of the current state of the regulations. The Board will be making recommendations to DCLG for changes to investment regulations which take on board this opinion to ensure that the relevant parts of Article 18 are adopted, reflecting the legal views provided by the Law Commission and Michael Furness QC.
(Commentary on Finance and Regulation Opinion, pdf 180KB)
22 January 2015
The Local Government Association on behalf of the LGPS Shadow Scheme Advisory Board instructed Mr Nigel Giffin QC in the matter of:
| I. | Does an LGPS administering authority owe a fiduciary duty and if so to whom it is owed? |
| II. | How should the wider functions, aims or objectives of the administering authority influence the discharge of its LGPS investment duties |
(Opinion, Fiduciary Duty with regard to the investment of LGPS funds, pdf 108KB)
He has now produced his advice. His conclusions were
| 1. | In managing an LGPS fund, the administering authority has both fiduciary duties and public law duties (which are in practice likely to come to much the same thing). |
| This conclusion is clarified in the body of the opinion in paragraph 6 as follows: In my view the administering authority does owe fiduciary duties, both to the scheme employers, and to the scheme members | |
| 2. | The administering authority’s power of investment must be exercised for investment purposes, and not for any wider purposes. Investment decisions must therefore be directed towards achieving a wide variety of suitable investments, and to what is best for the financial position of the fund (balancing risk and return in the normal way). |
| 3. | However, so long as that remains true, the precise choice of investment may be influenced by wider social, ethical or environmental considerations, so long as that does not risk material financial detriment to the fund. In taking account of any such considerations, the administering authority may not prefer its own particular interests to those of other scheme employers, and should not seek to impose its particular views where those would not be widely shared by scheme employers and members (nor may other scheme employers impose their views upon the administering authority). |
So for example, in our view, an administering authority may choose to take into account the public health implications of tobacco investment but only if the result of such consideration is the replacement of these investments with assets producing a similar return.
Alternatively, in our view, an administering authority may take account of social housing needs but only if an investment in such stands up as an investment in its own right and can demonstrate that it is not preferring its own interests over other scheme employers in making the investment.
Furthermore, in our view, in making such decisions the administering authority cannot impose its view (on this or any other issue) on scheme employers nor can scheme employers impose their view on the administering authority if either resulted in a material risk to the return to and/or a suitable balance of assets in the fund.
2 April 2014
