LGPS board to tap QC over tobacco investment and public health conflicts

The Local Government Pension Scheme Advisory Board is set to seek advice from a Queen’s Counsel over the reconciliation of authorities’ fiduciary duty as scheme managers to maximise investment return with their duty to promote public health.

The move comes amid the ongoing debate over investment by council pension funds in tobacco companies.

At its meeting yesterday (1 October), the board’s investment and engagement sub-committee considered a draft question for a QC. However, the sub-committee called for it to be broadened and redrafted prior to any agreement to submit. The committee's next meeting is to be held on 7 January 2014.

As originally drafted for yesterday’s meeting, the question set out the legal background, highlighting that the ‘administering authority’ (or scheme manager) is normally delegated to a pension committee under section 101 and 102 of the Local Government Act 1972.

“In fulfilling its duties as scheme manager the authority (which is also a scheme employer) does not have the same separation of legal identity as is found in private sector trust based schemes,” it added. “Decisions are made by committee members who are elected members of the authority not trustees of the fund.”

The document said this situation “leads to potential conflicts of interest between what may be right for the fund and what may be right for the authority”.

It added: “Although not a new issue it has come to the fore once again following the passing of the public health function to local authorities.

“Authorities are struggling to reconcile what they believe to be their fiduciary duty as scheme managers to maximise investment return with those of promoting public health and in particular anti-smoking measures.”

The questions to be put to the QC were as follows:

“In fulfilling its role as scheme manager for the LGPS and in particular with regard to investment decisions:

1. What is the extent of any fiduciary duty owed by the authority to other scheme employers, scheme members and council tax payers?
2. What regard should be given to the aims of other functions of the authority particularly when those aims would appear to be contradictory to existing investment policy?”