Firm: Sacker & Partners LLP
On 18 June 2018, the Department for Work and Pensions (‘DWP’) published a consultation to seek views on changes to the Occupational Pension Schemes (Investment) Regulations 2005 (‘the Investment Regulations’) which are aimed at ‘clarifying and strengthening’ trustees’ investment duties.
The proposed changes to the Investment Regulations are intended to make clear that the financially material risks which trustees must take into account when making their investment decisions include environmental, social and governance (‘ESG’) factors, including climate change.
Under the proposals, trustees will be required to set out, in their statement of investment principles (‘SIP’), how they take account of financially material considerations (including those arising from ESG and, in particular, climate change) and stewardship.
Trustees will also be required to produce a separate statement that explains the extent to which the views that, in the reasonable opinion of the trustees, scheme members hold on financial and non-financial matters will be taken into account in the preparation of the SIP.
Additional changes, including publication of the SIP on a website, are proposed for ‘relevant schemes’ (broadly, schemes offering defined contribution ‘DC’ benefits, subject to a few exceptions).
Trustees of relevant schemes will also be required to produce an implementation statement setting out how they have performed as against the SIP. The DWP intends this requirement to be introduced a year after the changes to the SIP.
The DWP plans to lay the proposed regulations at the earliest opportunity and to bring them into force ‘around a year’ later, to allow trustees to prepare for the changes.
The Government has been considering making changes to the Investment Regulations for many years. Concerns about the interpretation of fiduciary duties in the context of investment were first identified by the Kay Review in 2012.
In July 2014, the Law Commission concluded that trustees:
However, following consultation in 2015, the Government decided that guidance from The Pensions Regulator (‘TPR’), rather than legislative change, would be sufficient. Revised guidance was issued for defined benefit (‘DB’) schemes in March 2017.
Following a further Law Commission report on social investment by pension funds, the Government has now decided that, despite TPR’s guidance, ‘confusion and misapprehension over trustees’ responsibilities persists’, with evidence of trustees incorrectly thinking that ESG risks are irrelevant, or run counter to, financially material concerns. It is therefore proposing to make changes to the Investment Regulations to clarify the position for trustees.
SIP – current requirements
A SIP is a written statement which governs the trustees’ decisions about the pension scheme’s investments. The SIP must cover at least the trustees’ policy for securing compliance with their statutory duty to choose scheme investments and their policies relating to:
Schemes with fewer than 100 members and certain local authority and public sector schemes are not required to prepare a SIP.
The timing set out below is based on the regulations being laid in Autumn 2018.
By 1 October 2019 trustees will be required to update or prepare their SIP to set out how they take account of financially material considerations, including but not limited to those arising from ESG considerations, including climate change. This will replace the current requirement to state the extent (if at all) to which ‘social, environmental and ethical’ considerations are taken into account. In addition, the SIP will have to include the trustees’ policies in relation to the stewardship of their scheme’s investments, including engagement with investee firms and the exercise of the voting rights associated with the investment. Trustees of ‘relevant schemes’ will be required to publish their SIP on a publicly available website and inform scheme members of its availability in their annual benefit statement.
The proposed removal of the current qualification (‘if at all’) is notable. It suggests that there will be a regulatory expectation that trustees should have considered ESG and climate change factors. Climate change is specifically referenced because the Government considers it to be ‘a systemic and cross-cutting risk’.
From 1 October 2019 trustees will be required to prepare a statement which explains the extent to which the views that, in the reasonable opinion of the trustees, scheme members hold on financial and non-financial matters will be taken into account in the preparation of the SIP (‘the Statement on Members’ Views’).
The DWP makes clear, however, that trustees will not be required to act on any member concerns or invest in line with members’ preferences.
From 1 October 2020, trustees of relevant schemes will be required to:
The introduction of the requirement to produce and publish an implementation report is timed to ensure that trustees will not be required to report on the implementation of a SIP that has been produced under the current requirements.
The Government is proposing a narrower set of changes for DB schemes as it considers that there are already significant incentives in place for employers to work with trustees to seek to improve their SIPs.
The consultation closes on 16 July 2018. As noted above, the Government intends to give trustees around a year from the regulations being laid to prepare for the changes. This means that the earliest date for the first measures to come into effect is 1 October 2019. If the regulations are not laid until early 2019, most provisions will come into force on 6 April 2020.
Once the regulations are in force, TPR will update its existing Codes and guidance for both DB and DC schemes and will consider what additional guidance may be helpful for trustees in understanding their duties.
Whilst the proposals may be eye-catching at first glance, the content of the proposed regulatory changes is somewhat more modest.
The existing Investment Regulations currently require that, in a scheme’s SIP, trustees must state the extent to which they take ‘social, environmental or ethical considerations’ into account. This has long since been confusing, suggesting that managing ESG risks such as climate change is an ethical, rather than financial, issue. This is something the Law Commission identified as a source of confusion in their consultation on trustee fiduciary duties in 2014.
We are therefore pleased to see the DWP proposing that in future, trustees will have to state their policy on taking account of “financially material” ESG factors. In this sense, the wording of the regulations should be better aligned with what schemes look at in practice. However, perhaps the most significant change will be in requiring trustees of DC schemes to review annually how they have followed that policy over the last year. This is really going to push this onto the agendas of DC Trustees in a way that it perhaps hasn’t been to date.
Slightly less helpful is yet another focus on members’ ethical views. Here the proposed regulations would require Trustees to publish a statement on the extent to which these are taken into account in setting a scheme’s investment strategy. Whilst the regulations may be permissive and do not require trustees to actively seek member views in all cases, we fear that this regulation could prompt a rash of ill-thought through member surveys that distract trustees from focusing on ESG issues from a financial point of view.