Pensions and Legal Policy

Lessons on the Shift from Public to Private
Erscheinungsjahr 2022
ISBN: 978-1-5099-4472-9
Verlag: Hart Publishing

Buch, Englisch, 272 Seiten, Paperback, Format (B × H): 154 mm x 234 mm, Gewicht: 380 g

This book explores the historical position of pensions law in the UK and the recent influences which have led to the introduction of Auto-Enrolment and subsequent reforms. Alternative models, such as the US and Australia, are also considered as well as the function of law in bringing about political changes.

The question of saving for retirement is of national and international importance and many governments are wrestling with the issue of how to deal with the pension funding crisis. Consequently political policy has, in many cases, combined with behavioural science to inform new laws which have acted to shift the burden from the state into the private sector. Around the world responsibility is being moved onto individuals and employers as the state retreats from provision of state support in retirement; this book offers a sophisticated analysis of the role of legal intervention to facilitate this shift.

The book explores the work of behavioural economics, its global influence on understanding financial decision-making and its application to legislation which seeks to influence consumer outcomes. Drawing on qualitative empirical research to explore the experience of implementation of Auto-Enrolment, this timely work considers the interaction with the work of behavioural science to highlight the social costs of the new regulatory regime.

This title is included in Bloomsbury Professional's Pensions Law online service.

Autoren/Hrsg.

Cooke, Amanda

Fachgebiete

• Rechtswissenschaften Arbeitsrecht Betriebliche Altersvorsorge, Vermögensbildung
• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

1. An Introduction to the Work

I. Background

II. Pensions

A. Public Sector Pensions

B. Private Pensions: Occupational Pension Schemes

III. Key Policy Considerations

IV. The Road to Auto-Enrolment: The Rise and Fall of Voluntary Private Pensions

V. The Road to Auto-Enrolment: The Pensions Commission

VI. Lessons from Abroad

VII. Conclusion

2. Introduction of Auto-Enrolment to the UK
I. Auto-Enrolment and Parliamentary Intent

A. Increase Saving by Default

B. Prevent a Reduction in Existing Pension Benefits or Levelling Down

C. Education of the Workforce

D. Private Pension Saving Compatible with State Benefits

II. Legislative Reality
III. Post Implementation Legislative Changes

A. Value

B. Costs and Charges

C. Scheme Governance

D. Master Trusts

E. Taking Pension Benefits

IV. Conclusion

3. Legal Paternalism and the Auto-Enrolment Regime

I. Introduction

II. Autonomy v Law

III. Legal Paternalism

A. The Rise of Paternalistic Legislation

IV. Soft Paternalism or Nudge

V. Paternalism and Contracts

VI. Intention of Legal Intervention

VII. Proof and Value Measurement

VIII. Conclusion

4. The Role of Behavioural Economics in Legal Intervention

I. Introduction

II. Behavioural Economics

A. Inertia and Procrastination

B. Framing and Presentation

C. Social Influences

D. Difficulties in Assessing Probability

III. The Influence of Behavioural Economics on Law and Policy

IV. Regulatory Intervention and Choice Architecture

A. Policy of Legal Paternalism

B. Choice Architects

C. Alternatives to Soft Paternalism/Choice Architecture

V. Auto-Enrolment as Choice Architecture

A. Auto-Enrolment

B. Opting-out

C. Defaults

D. Auto-Enrolment and Behavioural Bias

E. Framing and Disclosure

VI. Conclusion

5. Empirical Research Findings

I. Introduction to the Research

II. Research Design and Methodology

III. Findings

A. Action

B. Barriers to Decisions

C. Intervention and Implementation

D. Engagement and Understanding

E. Trust

IV. Conclusion

A. Choice and Defaults

B. Understanding

C. Information

D. Individual Perception of Auto-Enrolment

E. The Employee/Employer Relationship and Auto-Enrolment

F. Impact of Gender and Age

G. Negative or Unforeseen Consequences of Auto-Enrolment

6. Unintended Consequences: Remedies

I. Introduction

II. Fiduciary Duties Owed to Employees

A. When Do Fiduciary Obligations Exist?

B. The Consequences of Fiduciary Obligations

III. Duties Owed by the Employer as an Agent

A. The Agency Relationship

B. Consequences of Agency

IV. Duties Arising from the Contract of Employment

A. Implied Terms

B. Auto-Enrolment Compliance and the Contract of Employment
V. Duties Owed to the Employee by the Pension Provider or Advisors

A. Provision of Advice

B. Misunderstandings and Mis-statements

C. Third Party Liability

D. Reliance on Financial Regulation

VI. Conclusion

7. Conclusion

I. Why Do We Have Auto-Enrolment?

A. The Ageing Population

B. Combat Behavioural Traits

II. Choice Architecture and Justification

A. Intervention not Persuasion

B. Behavioural Economics

III. Has Legislative and Practical Implementation Reflected the Policy Intention?

A. Defaults

B. Employer Discretion

C. Communication and Active Choice

IV. Are There Unforeseen or Unintended Consequences and How Do These Affect Justification for Legal Intervention?

A. Barriers and Misunderstandings

B. Reliance on Defaults

C. Advice
D. Detriment and Responsibility

E. Social Costs and Remedies

Über Autor(innen)

Cooke, Amanda
Amanda Cooke is a pensions lawyer and Guest Lecturer at the University of Edinburgh Law School, UK.