Policing for pensioners
4 August 1997
The Pensions Act, which came into force this week, has been good business for lawyers. A senior one said to me recently that he was no longer embarrassed to tell anyone what he did for a living.
Lawyers' profile within the industry is high and, on the whole, they are well respected. Their task, however, did not stop on 6 April. They will have to be vigilant in ensuring that Opra, as well as their clients, stick to the rules. They know that some cases will arise where Opra will believe there is no alternative but to apply penalties, or the more draconian sanctions which parliament has decided Opra needs to have to protect pensions scheme members.
The first trial of strength is likely to be over the collection of evidence. Pensions lawyers acting for a potential defendant will want to be certain that Opra's version of the facts is fair. If a penalty is the likely outcome, lawyers will need to decide whether to make repre- sentations which not only influence the result, but also put a more favourable gloss on the press announcement that will accompany pensions regulators' punishment.
It is also predictable that the prospect of civil proceedings will be used as an excuse to delay Opra's hand. The regulator will argue whenever it can that the highest priority should be given to the protection of scheme members.
The regulations that govern appeals on Opra's decisions will guarantee an oral hearing before a review panel if a trustee is at risk of being banned.
Opra will be very anxious to ensure that any lay trustee is handled particularly carefully so that proceedings are only instituted if it is obviously fair to do so, and will ensure that the trustee has a proper opportunity to put over his or her case without being overawed by the whole process.
Whoever represents someone in this position will find a tribunal anxious to cut jargon and legal rhetoric, but keen to get to the truth quickly.
We have said that we plan to concentrate penalties and sanctions on those who have behaved dishonestly or who have shown scant regard for the need to get things right.
This pragmatic approach will be refined in the light of experience. Where the regulations seem obscure or extraordinarily difficult to apply in practice, we shall inform the government so that the law can be improved overall.
We will need to show both sensitivity and toughness in differentiating genuine cases from the downright devious, however expensively represented they might be.
These lessons from experience will be things which Opra will want to share with the professional bodies and trade associations. In these discussions at least, the legal profession will be able to concentrate on the public good, rather than the narrower interest of clients they may have had to defend before Opra.
This reflective approach, which is shorn of the need to make pleas on behalf of individual clients, has the potential to restart the engine of pensions law simplification.
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