34.—(1) The trustees of a trust scheme have, subject to[F1 Article 36(1) and to] any restriction imposed by the scheme, the same power to make an investment of any kind as if they were absolutely entitled to the assets of the scheme.
(2) Any discretion of the trustees of a trust scheme to make any decision about investments—
(a)may be delegated by or on behalf of the trustees to a fund manager to whom paragraph (3) applies to be exercised in accordance with Article 36, but
(b)may not otherwise be delegated except under section 26 of the Trustee Act (Northern Ireland) 1958F2 (delegation of trusts for period not exceeding 12 months) or paragraph (5).
[F3(3) This paragraph applies to a fund manager who, in relation to the investments, may take the decisions in question without contravening the prohibition imposed by section 19 of the Financial Services and Markets Act 2000 (prohibition on carrying on regulated activities unless authorised or exempt).]
(4) The trustees are not responsible for the act or default of any fund manager in the exercise of any discretion delegated to him under paragraph (2)(a) if they have taken all such steps as are reasonable to satisfy themselves or the person who made the delegation on their behalf has taken all such steps as are reasonable to satisfy himself—
(a)that the fund manager has the appropriate knowledge and experience for managing the investments of the scheme, and
(b)that he is carrying out his work competently and complying with Article 36.
(5) Subject to any restriction imposed by a trust scheme—
(a)the trustees may authorise two or more of their number to exercise on their behalf any discretion to make any decision about investments, and
(b)any such discretion may, where giving effect to the decision would not constitute[F3 "the carrying on, in the United Kingdom, of a regulated activity (within the meaning of the Financial Services and Markets Act 2000)], be delegated by or on behalf of the trustees to a fund manager to whom paragraph (3) does not apply to be exercised in accordance with Article 36;
but in either case the trustees are liable for any acts or defaults in the exercise of the discretion if they would be so liable if they were the acts or defaults of the trustees as a whole.
(6) Article 33 does not prevent the exclusion or restriction of any liability of the trustees of a trust scheme for the acts or defaults of a fund manager in the exercise of a discretion delegated to him under paragraph (5)(b) where the trustees have taken all such steps as are reasonable to satisfy themselves, or the person who made the delegation on their behalf has taken all such steps as are reasonable to satisfy himself—
(a)that the fund manager has the appropriate knowledge and experience for managing the investments of the scheme, and
(b)that he is carrying out his work competently and complying with Article 36;
and paragraph (2) of Article 33 applies for the purposes of this paragraph as it applies for the purposes of that Article.
(7) The provisions of this Article override any restriction inconsistent with the provisions imposed by any rule of law or by or under any enactment, other than an enactment contained in, or made under, this Part or the Pension Schemes Act.