Pension Schemes Act 2021: the criminalisation of pension misconduct

The Pension Schemes Act 2021 came into force on 11 February 2021 and is set to make fundamental changes to the UK pensions landscape. Andrew Spink QC and Oliver Powell signpost the key changes that have been introduced by the Act, focusing on the new powers that will be available to The Pensions Regulator and the three new criminal offences created by the Act.

The Pension Schemes Act 2021 addresses a number of critical areas concerning pensions, and importantly brings about a number of significant changes. Broadly distilled, the Act:

• establishes a new framework for the formation and administration of collective money purchase pension schemes;
• creates three new criminal offences;
• introduces a new power to impose civil penalties of up to £1m;
• expands the scope of the existing contribution notice power under section 38 of the Pensions Act 2004;
• expands the Pension Regulator’s interview and inspection powers;
• introduces pension dashboards; and
• includes provisions on climate risk governance and reporting.

Read Pension Schemes Act 2021: the criminalisation of pension misconduct here.

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In the field of pensions law, Andrew Spink QC is rated as one of the leading silks by the legal directories having appeared in some of the biggest and most significant CPR Part 8 pensions claims of the last two decades, as well as hostile CPR Part 7 claims for damages and other relief in the context of pensions and other commercial trusts and many professional negligence claims (acting for both claimants and defendants). In addition, he is a recognised specialist in dealing with cases involving the exercise by the Pensions Regulator of its “moral hazard” powers under PA04 including some of the leading cases on the application of the s.38A PA04 “material detriment test”.

Oliver Powell is ranked in both Chambers & Partners (UK) and The Legal 500. He undertakes instructions that involve the regulation of business activity and commerce. His practice encompasses: asset forfeiture & civil recovery; business crime; commercial fraud; corporate investigations; and financial wrongdoing. He is a contributor to both Millington and Sutherland Williams on the Proceeds of Crime and Lissack and Horlick on Bribery, the seminal texts on POCA and Bribery & Corruption respectively.

Outer Temple’s market leading Pensions practitioners are highly sought after for their expertise in all aspects of pensions law including the existing forms of regulatory intervention by TPR, and its Business Crime and Financial Services Regulatory practitioners are internationally renowned. Together, members of these two teams are uniquely placed to provide advice to; pension scheme trustees, sponsoring employers, their directors and officers, and other professional advisers on:

• the implications of the expansion of the financial civil penalties regime and the scope of the existing s.38 regulatory regime;
• how to deal with investigations by TPR in light of its new powers, as well as internal investigations;
• how the new criminal offences will operate – burden and standard of proof, possible defences, what is “avoidance of employer debt” or “risking accrued scheme benefits”, and how it may be proved;
• preparing for and attending criminal interviews (i.e. interviews under caution pursuant to PACE 1984).

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If you would like to discuss any of the issues covered in this bulletin please contact Andrew or Oliver directly, or via their practice management team: David Smith at david.smith@outertemple.com or on 020 7427 4905; or Colin Bunyan at colin.bunyan@outertemple.com or on 020 7427 4886.

Legal Blogs 3 Mar, 2021