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FOI reference - FOI 2016-12-06
Date - 06/12/2016

Request

Request 1

I am requesting information under the Freedom of Information Act (FoIA) on the anti-avoidance investigation into BHS. Please disclose a) the i) initial and ii) current budget set aside by The Pensions Regulator (TPR) for the case, b) the number of people working on the case and c) the dates of each meeting or conference call held with Sir Philip Green / Taveta / their advisers and Dominic Chappell / RAL / their advisers.

Request 2

I am requesting information under the FoIA Act on the legal costs associated with TPR's investigations into the following anti-avoidance enforcement cases it has brought:

  1. Bonas
  2. Desmond
  3. Carrington Wire
  4. Lehmans
  5. Nortel
  6. Boxclever

For each of the above cases please disclose a) the total budget or amount spent and b) the budget or amount spent on i) external legal advice and ii) internal legal advice.

For each of the above cases, please also disclose the names of each external firm used and the amount spent on each firm.

Response

I can confirm that we hold the some of the information you have requested. However, we are unable to supply part of the information requested for the reason set out below.

Information we are able to supply

Request 1

(a) It might be helpful if I explain that individual case spend is agreed on the basis of need as the case progresses, ensuring we deliver value for money in progressing each case. We therefore do not set aside a prescribed budget per case, but we do manage our overall case spend position to ensure sufficient funding and resourcing is available on an ongoing basis.

(b) We have 16 internal staff working on the case at the present time, however not all of the staff will be working full time on the case and our staff resources have been and will continue to be deployed as required as the case progresses.

Request 2

(a) Please see above for the explanation regarding budgets, and please see annex A (PDF, 36kb, 2 pages) for the information relating to the case spend.

(b) For the amount spent on external legal advice, along with the firms used and amount spent with each firm, please see annex A (PDF, 36kb, 2 pages). With regard to internal legal spend, we do not break down the cost of our internal legal resource at the level of individual cases. When carrying out investigations, we rely heavily on our in-house legal resource and expertise, which is deployed flexibly, according to the needs / demands of the case. Lawyers may be attached to several cases and will direct their time and focus as needed, which means when activity on a particular case increases, the number of lawyers allocated and / or the proportion of their time spent supporting that case will also increase.

Information we are not able to supply

For part (c) of Request 1 the dates of each meeting or conference call held with Sir Philip Green / Taveta / their advisers and Dominic Chappell / RAL / their advisers and for part (b) of Request 2 the details of the firms working on the Boxclever case we consider this information is exempt from disclosure.

Section 31(1)(g) and (2)(b)-(c) of the Freedom of Information Act (FoIA) exempts information from disclosure if its disclosure under FoIA would, or would be likely to, prejudice:

(1)(g) the exercise by any public authority of its functions for any of the purposes specified in subsection (2)

(2)(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper

(2)(c) the purpose of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise

Our statutory objectives under section 5 of the Pensions Act 2004 include the protection of members’ benefits under occupational and personal pension schemes; to reduce the risk of circumstances arising in which claims may be made on the Pension Protection Fund; and to promote and improve the understanding and good administration of work-based pension schemes. Therefore, we need to carefully consider the risk of prejudice to the achievement of these objectives.

With the above objectives in mind, in exercising our functions we conduct investigations, obtain advice and launch formal action where necessary. Disclosure of the information requested in relation to Boxclever and BHS cases would be likely to prematurely reveal elements of TPR’s enforcement and regulatory strategies at a critical stage in the progress of these cases, both of which are ongoing live regulatory / enforcement cases. This in turn would be likely to have an adverse effect and therefore, prejudice our ability to effectively carry out our statutory duties, which would not be in the interest of the relevant schemes or their members.

Public Interest Test

The exemption at section 31(1)(g) for the purposes set out in (2)(b) and (2)(c) of the FoIA is a qualified exemption which requires a public interest test be carried out. The ‘public interest’ means the ‘public good’ and not just what is of interest to the public or the private interests of particular requesters.

Public good includes assessing competing demands. We consider that the public interest in allowing public bodies to maintain appropriate confidentiality in relation to the conduct of regulatory cases, without the risk of (premature) disclosure of information about those cases and their conduct is of paramount importance and may in certain circumstances outweigh the public interest in disclosure.

Because of the current position of the regulatory cases BHS and Boxclever we consider that disclosure of the information requested would be likely to prejudice our ability to progress these cases. Excessive public scrutiny could hinder progress in these cases and prevent us from being able to freely and efficiently carry out the actions necessary to obtain the best outcome for the schemes and their members. This would be to the detriment of scheme members and beneficiaries and not in the public interest.

As these are live and ongoing cases TPR is mindful to avoid any potential adverse impact at a critical stage disclosing information about these cases may occasion. We consider that the public interest at this time favours TPR being able to effectively progress these cases and to successfully conclude them.

Therefore, we do not consider the public interest in disclosing the information requested in relation to the BHS and Boxclever investigations outweighs the public interest in maintaining the exemption at this time, for the reasons set out above.

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