Workplace Pension in UK Law

But even if it could, their Lordships are satisfied that it could not be amended in order to confer any interest in the trust fund on the Company. This was expressly prohibited by clause 4 of the Trust Deed. The 1994 amendments included a purported amendment to the Trust Deed to remove this limitation, but this was plainly invalid. The trustees could not achieve by two steps what they could not achieve by one.

In the amendment of pension scheme rules, back-dating (that is, deeming a change of the rules to have been made at a date earlier than the date of the actual change) cannot be used as a device so as to rewrite history or validate an amendment which would otherwise be beyond the scope of the power of amendment.

Even this formulation is relatively broad brush, and it should be emphasised that there are many qualifications or refinements which can be made to it.

Here it seems clear to me that the trustees exercised their discretion to amend the rule in the way contained in the amendment. They were obliged, having done so under clause 16, to make an appropriate declaration in a particular form. They could have been compelled on behalf of the members, who are not volunteers, to specifically perform their exercise of the power. Not to make a valid declaration was a breach of the terms of the definitive deed.

A decision to have a pension scheme and the consequential decisions about the structure and design of the scheme are matters for the employer, or at least matters primarily for the employer. This is not to say that the trustees are compelled to accept the employer's design. If the trustees object to it they cannot be compelled to join in executing the Deed and Rules.

My own view is that members' interests and expectations may be of relevance when considering whether an employer has acted irrationally or perversely. On the other hand, it is important to remember that powers such as that at issue in the present case are not fiduciary. As a result, the donee of the power is, as Mr Tennet pointed out, entitled to have regard to his own interests when making decisions (see paragraphs 121 and 124 above).

An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not. Nor do I think that Neuberger J can have meant that the court had power to waive requirements of the deed as properly construed.