Lay trustees still play vital role

There are some jobs we do because we think we should. Charity volunteer, church warden and prison visitor are obvious ones. Nowadays, the list commonly includes pension fund trustee, too.

Until now, the typical pension board included former senior employees or directors, employee-nominated members, external independent trustees and just useful, decent people. They didn’t need specialist skills, although it was always handy to have a solicitor on board because they understood how trusts operated, or an accountant because the numbers could be tricky. But the way it worked best was to have lay trustees, committed to doing the best for their members and supported by technicians such as actuaries and investment consultants.

Such boards worked well, albeit imperfectly. They were cheap to run; few trustees needed more than their expenses paid. Boards operated collegiately; trustees needed to work together, and often used their inherent conflicts of interest to good advantage since they could use their knowledge of the sponsor or the membership to help forge agreements on policy and strategy.

It was even better if trustees were also members of the scheme, since balancing the various interests is one of the major tasks of trustees. The fact that they might not have had much understanding of the technicalities of pensions was not a concern. The supporting experts could advise on the meaning of a sub-section, or the most appropriate valuation technique.

In fact, the job of a trustee was to use honesty and common sense, not to be a technician; the fact that they were not experts was a benefit not a problem. Indeed, the obligation to place member-nominated trustees on boards, introduced many years ago in the UK, pre-supposed they were amateurs. Just like the directors of Rolls-Royce are not expected to be aero-engineers and those of High Street grocer Marks and Spencer aren’t meant to be authorities on the manufacture of prawn sandwiches.

But recently the scene has changed. Following the failures of UK department store chain British Home Stores and construction group Carillion, for which I am trustee chair, the UK’s House of Commons Work and Pensions Select Committee has assumed the outrage position and called for regulators to be tougher. It is hard to see what more might have been done at the time by the parties involved other than at the margins. At present, neither fraud nor misrepresentation seems to have taken place in those two cases. Nonetheless the political pressure on the Department of Work and Pensions (DWP) and, thence, on the Pensions Regulator, has been immense.

So far, instead of pressuring plan sponsors, it has proved easier for regulators to impose obligations on trustees. Over the last few months, we have seen a stream of papers from The Pensions Regulator (TPR) and DWP imposing additional obligations on trustees to produce ever more paperwork, to abandon their common sense on investment strategies, and to become subject to personal penalties far beyond what they had contemplated when they were appointed. In particular, both the TPR and DWP are proposing increased professionalisation and personal liability of trustees.

At first glance, those requirements do not seem unreasonable. There are millions of people in pension schemes who are concerned about their income in retirement. The law and rules are now very complicated. The sums involved are substantial – it is suggested that the Carillion deficit is about £2.6 billion ($3.4 billion) so having trustees who know what they are doing should be comforting both for members and lawmakers.

But with professionalisation comes ‘liabilitisation’ – a new word. The regulator is engaged in a small orgy of imposing penalties, mostly in relation to technical breaches, rather than substantive ones. This is the broken-windows theory – if they crackdown on minor infringements that will halt the major ones. There is no evidence for the validity of this theory, but that has not stopped TPR from penalising chairs with impeccable reputations minor amounts for alleged breaches of chair’s statement rules. Sensibly, chairs usually find it cheaper to pay rather than challenge, and TPR would rather claim credit for imposing fines for these minor infringements than devote its energies to preventing the theft of millions of pounds with impunity through pension freedoms.

Regulators argue – without evidence – that members’ outcomes might be improved by expanding trustee liabilities. It would certainly meet the regulators’ need to show they have teeth. But for trustees, the question now is whether there is any space at all for lay trustees, especially member-nominated trustees.

We can see echoes of this dilemma in relation to the appointment of British judges. Over the last two centuries, the UK has enjoyed an unrivalled reputation for the quality of its judges. Their selection had its drawbacks; they were drawn from a limited group of people, unfamiliar with problems of ordinary people, and were often somewhat aloof. But they were of impeccable intellectual ability, free from corruption, and experienced in the law. Today, however, it is proving increasingly hard to find judges – partly because of the reduced pay, partly because of the reduced pensions – but mostly because judges have to write an essay, like a schoolchild doing exams, before they are accepted. It’s the lack of dignity and respect for the judiciary that is making justice harder to find for the rest of us.

The same seems to be happening for pension fund trustees. The lack of respect the regulators show trustees, who are doing their best with their ever-increasing liabilities under difficult circumstances, makes being a trustee increasingly unattractive. Yet if the lay trustees disappear, we will miss them. Professional trustees are expensive, necessarily bureaucratic, and lack the necessary background knowledge of the plan sponsor.

So lay trustees should remain part of the equation. They bring the experience of the membership with them. Member-nominated trustees add value, even though they may not be experts, and company trustees have knowledge of the company’s position. What trustees need to make their roles more palatable is protection. The establishment of a more politically aware trustee defence union should help them cope with an over-zealous regulator and the political excesses of select committees, and also improve their reputation with their members and the public.

We need lay trustees, but they cannot do their jobs properly unless they are freed from over-zealous regulation.

Robin Ellison is a consultant at London law firm Pinsent Masons and visiting professor of pensions law and economics at Cass Business School.

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