Pension Fund Trustees and Fiduciary Duties: Decision making in the context of Sustainability and Climate Change

Philip comments:

“ I very much welcome the publication of this paper. It helpfully identifies and explains how the legal rules apply in this area. In my experience, this is an area where there is much misunderstanding. 

In particular, the paper outlines when climate change and sustainability factors can properly be taken into account as part of the pension fund trustee investment decision making process. 

It also makes more public a view held by many pension lawyers that the Law Commission’s test on taking non-financial factors into account is incorrect. Those lawyers include the APL’s Investment & DC Sub-Committee, as set out in their June 2020 note, and myself.

However, post Brexit, it is now possible, by way of Brexit dividend, for the UK Government to modify, with the approval of Parliament, the ‘prudent person rule’ on investing pension fund assets. Parliament could authorise a below market level of risk adjusted return to increase the contribution, by pension funds, their members, their sponsoring employers and taxpayers, to reducing, through their investments, greenhouse gas emissions and their impact on climate change.

In the meantime the ice continues to melt: Durham Research: The impact of melting ice sheets “

Philip Bennett is a member of the FMLC’s working group, expertly chaired by Sir Robin Knowles CBE , on this paper. Other members of the working group  include Andy Lewis, David Pollard  and Stuart O’Brien , all members of the Association of Pension Lawyers . Philip is a former chair of the APL’s Legislative & Parliamentary Sub-Committee.

A copy of the paper is available to download: Paper: Pension Fund Trustees and Fiduciary Duties - Decision-making in the context of Sustainability and the subject of Climate Change - FMLC 

The APL Investment and DC Sub-Committee’s note ‘Trustees taking into account non-financial factors when making investment decisions’ (June 2020) is here: APL Investment and DC Sub-Committee’s note

Find out more

• Philip’s published research in this area of law includes:

  • ‘Green Gilts and the Greenium: Value for money, virtue signalling or breach of trust ?’ (July 2021):Green Gilts: Pensions Research Institute
  • ‘Would it be a breach of a pension fund trustee's investment duties to invest in "green gilts" at a greenium’ (2021) 35 Trust LI 133 here
  • ‘Must an Occupational Pension Scheme take into Account ESG Factors, Even if There is a Risk of Financial Detriment to the Pension Fund’ (2019) 32 Trust LI here
• Learn more about Mr Philip Bennett's research
• Read more about the Financial Markets Law Committee
• Study at Durham Law School