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59.(1) The requirements of this Part relating to preservation of benefit under
occupational pension schemes ("the preservation requirements") are those set
out in Part I of Schedule 3; and Part II of that Schedule shall have effect
for enabling the Department to make regulations modifying the preservation
requirements and generally in relation to the preservation of benefit under
occupational pension schemes.
(2) This Article shall have effect for securing that occupational pension
schemes in force at the commencement of this Article or coming into force
thereafter conform with the preservation requirements in so far as conformity
can be achieved by the use of powers conferred by this Article (in addition to
any powers otherwise exercisable) on those concerned with such schemes and on
the Occupational Pensions Board.
(3) It is hereby declared that nothing in the foregoing provisions of this
Article or in Schedule 3 is to be taken
(a)to apply with direct effect to any scheme (whether having effect before or
after this Article comes into force), or to the rights or liabilities of any
person in, under or by virtue of a scheme; or
(b)to preclude a scheme from being so framed as to provide benefits on any
ampler scale, or (subject to any express provision made in the Schedule)
payable at any earlier time or otherwise more favourable to beneficiaries,
than is called for by the preservation requirements.
(4) In the case of an occupational pension scheme whose resources are derived
as mentioned in Article 42(1), it shall be the responsibility
(a)of the trustees and managers of the scheme or, in the case of a public
service pension scheme, of the Minister, government department or other person
or body concerned with its administration, to take such steps as are open to
them for bringing the scheme into conformity (if it does not otherwise
conform) with the preservation requirements; and
(b)of the Occupational Pensions Board to advise the trustees and managers, or,
if it is a public service pension scheme, the Minister, department or others
concerned with the scheme as to whether it does or does not (in the Board's
opinion) conform with those requirements and, if the Board are of opinion that
the scheme does not conform, to indicate the steps which they consider should
be taken with a view to securing conformity;
(5) On an application made to them in respect of an occupational pension
scheme by persons competent to make such an application in respect of it, the
Occupational Pensions Board shall issue a determination as to whether or not
the scheme conforms with the preservation requirements; and the persons
competent to make such an application in respect of a scheme are
(a)the trustees or managers of the scheme;
(b)any person other than the trustees or managers who has power to alter any
of the rules of the scheme;
(c)any person who is an employer of persons in service in an employment to
which the scheme applies;
(d)any member or prospective member of the scheme;
(e)such other persons as regulations may specify, in relation to any category
of schemes into which the scheme falls, as being proper persons to make an
application for the purposes of this Article in respect of a scheme of that
category.
(6) The Board may at any time of their own motion issue, in respect of a
scheme which has come to their notice (including in particular a scheme which
they are considering with a view to contracting-out, or one in respect of
which an application has been made to them under Article 60 for an order
authorising the modification of the scheme, or modifying it), any
determination which they could issue in the case of that scheme on an
application to them under paragraph (5).
(7) If the Board determine, in the case of a scheme, that it does not conform
with the preservation requirements they shall, either at the time of issuing
their determination or as soon thereafter as they think expedient
(a)by order direct the trustees or managers of the scheme, or any such persons
as are referred to in paragraph (5)(b), to exercise such powers as they
possess for modifying the scheme with a view to bringing it into conformity
with those requirements (for which purpose the Board shall include in their
order such directions as they think appropriate to indicate the modification
appearing to them to be called for); or
(b)if there is no person with power to modify the scheme as required by the
Board, by order authorise the trustees or managers, or other persons named in
the order (who may in particular include such an employer as is specified in
paragraph (5)(c)) to make that modification; or
(c)themselves by order modify the scheme with a view to achieving the purposes
above-mentioned.
(8) The Board may exercise their powers under paragraph (7) from time to time
in relation to any scheme in respect of which they have issued a determination
under this Article, and may exercise the powers together or separately.
(9) Any modification of a scheme made in pursuance of an order of the Board
under paragraph (7)(b) or (c) shall be as effective in law as if it had been
made under powers conferred by or under the scheme; and such an order may be
made and complied with in relation to a scheme
(a)notwithstanding any enactment or rule of law, or any rule of the scheme,
which would otherwise operate to prevent the modification being made;
(b)without regard to any such enactment, rule of law or rule of the scheme as
would otherwise require, or might otherwise be taken to require, the
implementation of any procedure, or the obtaining of any consent, with a view
to the making of the modification.
(10) An order of the Board under paragraph (7)(a) may require persons to
exercise a power retrospectively (whether or not the power could otherwise be
so exercised), and an order under paragraph (7)(b) or (c) may operate
retrospectively; and in this paragraph "retrospectively" means with effect
from a date before that on which the power is exercised or, as the case may
be, the order is made, not being in either case a date earlier than 5th
September 1973.
(11) At any time when the Board are concerned with an occupational pension
scheme for the purposes of issuing a determination under this Article, they
may include a determination (whether or not applied for) as to any of the
particular matters specified in Part I of Schedule 3 (including that Part as
modified by regulations under Part II of that Schedule).
(12) For the purpose of arriving at a determination under this Article in
respect of a scheme the Board may, if they think it expedient having regard
(a)to the structure and character of the scheme; and
(b)to any anomalous or impractical consequences that may be expected to follow
from its modification to achieve conformity with any particular provision of
Part I of Schedule 3 (including that Part as modified under Part II of that
Schedule),
(13) This Article applies to persons employed by or under the Crown in like
manner as if such persons were employed by a private person.
© 1975 Crown Copyright
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