The Gazette 1991

g a z e t t e

april

1991

ments are actually working,

(d) To ensure that proper member-

ship and financial records are

kept.

The Act does not assist

trustees by indicating what are

" p r ope r" records, but they

should be sufficient to allow an

audit to be done.

I believe it is possible that

trustees could find themselves in a

position where, through no fault of

their own, they are not in a position

to comply fully wi th these general

duties. The existénce of guidelines

or codes of practice issued by the

Board may be of assistance to the

trustees, but may not necessarily

relieve them from responsibility

under this section 59. While other

parts of the Act contain provisions

which are intended to resolve con-

flicts under the rules of a scheme

and the Act, there is no such

provision in Part VI (which deals

w i th trustees generally). The point

I wish to make is that, in the

circumstances of a particular case,

"The existence of guidelines or

codes of practice issued by the

Board . . . may not necessarily

relieve [trustees] from res-

ponsibility under . . . section

59."

compliance w i th one of these

general duties might prove not to

be possible in practice, so that

theoretically a trustee then would

be liable to prosecution for an

offence under the Act.

Before considering some of the

many specific duties of trustees

under the Act, it may help to

consider the Pensions Board, the

activities of which will have a

profound impact on the life of

trustees.

The Pensions Board

The Board's functions are specified

in s.10 and will include:

(a) to monitor and supervise the

operation of the Act and advise

the Minister for Social Welfare

("the Minister") on the Board's

functions and on pensions

developments generally;

(b) to issue guidelines on the

duties and responsibilities of

trustees and codes of practice

on specific aspects of those

responsibilities;

(c) to encourage the training of

trustees;

(d) to advise the Minister on

standards for trustees and

implementation of them;

(e) to publish annual reports and

other reports; and

(f) to perform such tasks as the

Minister may request (these are

not specified).

In addition under s.11 (1) (a) the

Minister may by order, w i th the

consent of the Minister for Finance,

confer on the Board such additional

functions, connected w i th the

functions above, as he considers

appropriate; and, by order wi th the

same consent, the Minister may

make " s u ch provision as he

considers necessary or expedient in

relation to matters ancillary to or

arising out of . . . "

t hose

functions.

The Act also confers on the

Board " s u c h powe rs as are

necessary for or incidental to the

performance of its functions",

without specifying what these are.

In addition the Board has power,

under s.3(5), to institute summary

proceedings to prosecute for

offences under the Act.

Trustees may take confort from

the fact that the composition of the

Board is broadly based and consists

of a chairman and twelve ordinary

membe r s, appo i n t ed by t he

Minister. Seven of the ordinary

members must be representative of

the different interests, namely

trades union, employers, occupa-

tional pension schemes ( two

members), the actuarial profession,

the accounting profession and the

legal profession. One member is to

be a representative of the Minister

and another to be a representative

of the Minister for Finance, leaving

three further ordinary members to

be appointed by the Minister

without necessarily representing

any particular interest.

As has been reported in the

press, the Minister has established

the Board and appointed all its

members with Mrs. Mary Broughan

as chairman.

Undoubtedly the decisions of the

Board are likely to have a consider-

able impact on the performance by

t r us t ees of t he ir du t i es and

responsibilities. While the Board

does have a function to issue

guidelines and codes of practice as

indicated above, neither the guide-

lines nor the codes of practice are

expressed to be binding upon

trustees.

As far as trustees are concerned,

probably the principal provisions of

the Act relating to the Board are

those contained in section 18

(which authorises any employee of

the Board to inspect or investigate

the state and conduct of a scheme)

and section 25 (which requires

trustees to pay to the Board yearly

fees as the Minister prescribes with

the consent of the Minister for

Finance). The entire operation of a

scheme may be inspected and

investigated by a Board repre-

sentative. The employer and the

trustees concerned are obliged to

furnish such information, explana-

tions, books of account and other

documents as may be specified by

the Board (or the authorised person

on its behalf). The Board's repre-

sentative is specifically empowered

to enter the premises of any

employer, trustee or agent and

make such examination or enquiry

as may be necessary. The duties of

producing or providing information,

documents, material or explanation

extend to any person being an

officer or employee of the employer

or a trustee or agent. These ex-

tensive powers are given some

teeth by the express provision that

obstruction of a Board's repre-

sentative, refusal to produce

information, documents, material

or explanation and refusal to

answer any questions are all

offences, conviction for which

renders the person liable, on

summary conviction, to a fine of up

to £1,000 or one year's imprison-

ment or both or, on conviction on

indictment, to a fine of up to

£10,000 or to imprisonment of up

to t wo years or both.

In view of section 25 referred to

above, pension schemes will be

expected to defray part of the costs

of the Board's operations. The

Minister is empowered to advance

moneys to the Board wi th the

consent of the Minister for Finance,

so to some extent the Board's

operations may be funded from the

Éxchequer. It is not clear yet to

what extent the Board's operations

will be funded by fees charged on

pension schemes.

The Act recognises that there

may be conflicts between the

provisions of any scheme and the

provisions of the Act contained in

Part III (preservation of benefits),

Part IV (funding standard) and Part

V (disclosure of information in