1 Clause 1, page 1, line 14, at end insert—
( ) Any scheme established under subsection (2) must provide that there shall be no onus on any claimant under the scheme to prove the fulfilment of any conditions for a claim thereunder and that the benefit of any reasonable doubt shall be given to the claimant.
§ The Commons disagree to this amendment for the following reason—
§ 1A Because it could allow a claim to succeed even though the conditions for entitlement were probably not fulfilled.
§ Lord Bach
My Lords, I beg to move that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A.
For the convenience of the House, I intend to save my substantial remarks until I have heard what my noble friend Lord Morris, and other noble Lords, have to say.
Moved, That the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A—(Lord Bach.)
§ Lord Morris of Manchester
rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A, at end insert "but do propose the following amendment in lieu thereof—1C page 1, line 14, at end insert—( ) Any scheme established under subsection (2) must provide that there shall be no onus on any claimant under the scheme to prove that his illness or injury (whether physical or mental) or his death, is attributable (wholly or partly) to his service in the armed forces or the reserve forces and the benefit of any reasonable doubt shall be given to the claimant."
The noble Lord said: My Lords, the Prime Minister's first words to the House of Commons when Parliament resumed after the Recess were:I know that the whole House will join with me in sending our condolences to the families of the two British soldiers who have lost their lives in Iraq since the House rose on 16 September. They were doing an extraordinary and heroic job. We can be proud of them".—[Official Report, Commons, 13/10/04; col. 276.]Let my right honourable friend's words, reminiscent as they were of those of the Chancellor and the Defence Secretary in praise of our Armed Forces, inform this debate: one of huge importance to service and ex-service personnel alike.
Never on any legislative issue was Britain's ex-service community more at one than it is now in support of this amendment. My involvement with that community is as one of them. It was 56 years ago that I completed my time—mostly on active service—in the Armed Forces; but my interest goes much further back. When I was seven my father died of war injuries and my mother made ends meet as a war widow. That involvement, even more than my work over many years as Honorary Parliamentary Adviser to the Royal British Legion and Vice-President of the War Widows' Association, is the principal interest I have to declare in this debate.
152 I want first to make it crystal clear that my amendment's purpose is to vouchsafe, after next April, continuance of the burden and standard of proof used in the current war pensions scheme for claims for illness, injury or death attributable, wholly or partly, to service in the Armed Forces: no more and no less. On 20 October, in the debate in the House of Commons on the amendment approved by this House on 8 September, it was said that my amendment went further than to preserve the current burden and standard of proof. My advice and that of the Royal British Legion is that it did not; but to make our intention doubly clear, I have now reshaped the original amendment. Furthermore, if Ministers can demonstrate that there could still be ambiguity, I shall be glad to consider a change of wording to achieve our stated purpose.
From the moment this Bill first saw the light of day, the Government's intention has been to shift the burden of proof from the MoD to the claimant and to change the standard of proof from the existing test of "reasonable doubt" to the much sterner "balance of probabilities". Ever since then, notwithstanding all the ex-service community's representations, the Commons Select Committee's critical report and the speeches in your Lordships' House from noble and gallant Lords with vast experience of our Armed Forces—they include highly distinguished former Chiefs of the Defence Staff—the MoD's position has remained fundamentally unchanged, as the noble and learned Lord, Lord Ackner, set in bold relief in his intervention at the conclusion of my noble friend's speech on 8 September.
The Royal British Legion's view is that, for the MoD not now to modify its position, would be,a dire and retrograde step for those serving in the Armed Forces in the future".Yet the MoD still wastes time bogusly claiming that "balance of probabilities" is more modern and fairer than "reasonable doubt". In truth, of course, it is as old as the hills. It was in fact replaced by "reasonable doubt" in 1943. Thus what the Government are now proposing is to put the clock back 60 years. Similarly the claim that "balance of probabilities" is fairer than "reasonable doubt" is demonstrably bogus. And my sources for that statement include my noble friend himself when he replied, on 22 January, to my Starred Question about the case of the late Major Ian Hill, following the coroner's landmark finding at the inquest into his death: "I can say", my noble friend told the House,that war widows' pensions are paid when death is deemed to be due to service, and that the war widow has to raise only a reasonable doubt for claims to succeed".—[Official Report, 22/1/04/ col. 1138.]This most important safeguard in the existing war pensions scheme was the core of my noble friend's justification of the handling of Major Hill's case and clearly, in his view, the scheme's crowning virtue.
Yet now, while the MoD admits that successful claims for war and war widows' pensions will be reduced, my noble friend is made to argue for the dumping of that safeguard—and shifting the "burden 153 of proof" from the MoD to the claimant—to produce a saving for the department of what this House was told on 8 September is £200 million and the House of Commons was told on 20 October is £300 million. Thus in the MoD's case "cherry picking" includes the right even to pick—and change from month to month—its own unverifiable price tags.
As Colonel English, known to all of us here for his unwavering commitment and abiding concern in working for the Royal British Legion, says:Of course, there is another way of describing the cost to the MoD of £200–300 million if the MoD fails to defeat your amendment on burden and standard of proof. If they succeed it will cost disabled ex-service men and women—and the dependants of those who lay down their lives—exactly the same £200–300 million".
Ignoring the Prime Minister's recent comments on the high importance of the role of this House as a revising Chamber—charged with the duty of detailed parliamentary scrutiny—the MoD's posture now is not only to refuse to discuss a suggested compromise, even one that could be hacked both by the Legion and the Commons Defence Committee, but also to insist that if it does not have its way there will be no Bill at all.
Yet where could the Prime Minister's assessment of the importance of the legislative role of this House possibly be more crucially relevant than in scrutinising and revising—sustained in doing so as we are by former Chiefs of the Defence Staff—a Bill affecting the interests of ex-service personnel in broken health and the bereaved families of those who die in the service of this country?
Our Armed Forces have an unlimited liability to serve anywhere, at any time, under any conditions and to put their lives on the line. That does not apply to any other occupation and, with no resource other than the Legion to represent their interests, service personnel are heavily dependent on Parliament for a fair and continuing recognition of their needs.
That is the context in which we debate this amendment. There is no other group of people exposed to the hazards faced by our Armed Forces in all corners of the globe and none more reliant on parliamentary concern for their interests. They have no trade union or federation to protect them. Nor are normal commercial rates for permanent ill-health or disability insurance available to them. That is but part of the case for recognising the bounden duty of Parliament to do its best for the Armed Forces.
It was argued for the MoD in the House of Commons that the amendment on burden and standard of proof carried in this House on 8 September would allow a case to succeed even if the conditions for entitlement were not met.
Nowhere has the department provided any evidence of unmeritorious but successful war pension claims such as to cause concern, however, let alone a concern that what has worked perfectly well for 60 years has suddenly been undermined. Instead the ex-service community is left resentful of what it sees as double standards.
154 While the Prime Minister, backed by senior Ministers, speaks in the highest praise of our Armed Forces as the finest in the world, spin from inner Whitehall works to create the impression that—driven by a so-called "compensation culture"—the ranks of those incapacitated by war service are riddled with benefit cheats and lead swingers.
The Royal British Legion asked for any evidence the MoD has of abuse of the war pensions scheme. None has been forthcoming; and there can be no complaint now if war pensioners say that current reality is not a "compensation culture" in the ex-service community but an "obfuscation culture" in inner Whitehall.
Again, the impression was given in the House of Commons that the Royal British Legion has been unwilling to offer any kind of compromise. There was no mention there of the Legion's suggested compromise in a letter to Ivor Caplin dated 3 March 2004, to which he replied on 26 March rejecting the suggestion and commending the findings of a badly flawed report commissioned from the consultants Watson Wyatt by the MoD.
Clearly Watson Wyatt has a wide knowledge of pension schemes, but not it appears of war pensions schemes. In the UK the current war pensions scheme has no comparator with any other scheme, whether in the public or private sector. That is because there is only one such scheme, whose provisions are unique to the Armed Forces in recognition of the extent of their commitment to the state.
The only meaningful comparison would have been with similar schemes, requiring unlimited liability from service personnel, in other developed countries that play a significant role in international affairs. The trap Watson Wyatt fell into in comparing the war pensions scheme with other pension schemes in the UK was that laid by the MoD's instruction—based on the bogus assumption that service in the Armed Forces is essentially no different from civilian employment—to compare the scheme with schemes where no valid comparison could be made.
By contrast the Royal British Legion was then working to document the effects of abandoning the current burden and standard of proof for incapacitated service personnel. The outcome was to show that, taken together with the MoD's proposal to reduce to five years the time-limit for making a claim, it could cut the number of successful claims by up to 60 per cent.
That finding was based on scrupulous analysis of the vast casework undertaken by the Legion, particularly that gained when acting for claimants in 93 per cent of all represented appeals at tribunals for war pensions, and totalling over 4,000 cases in the last year for which I have figures. The Government's response to that was to cast doubt on the Legion's analysis, while doing nothing whatever to produce one of their own.
155 Instead, the Government made the assertion—strongly renewed in the debate in the House of Commons on the amendment approved by this House on 8 September—that those who wanted to preserve the burden and standard of proof of the current scheme were opposed to higher benefits for more severely disabled ex-servicemen and women. It is, of course, totally preposterous to say that supporters of the current burden and standard of proof—and by implication the Royal British Legion—have taken any such stance. The Legion's door is open to all ex-service personnel in need of its help and, in fighting their corner, it insists on help in proportion to need for all.
How otherwise could its reputation be so universally high? Again, how else could the Legion attract so many volunteers to sell poppies year by year, as tens of thousands of them are now doing, all over Britain, even as I speak?
Moreover, if any MoD Minister thinks that his sternest critic is the Royal British Legion, I can introduce him to ex-servicemen and women who see the Bill, as it relates to burden and standard of proof, as the biggest stitch-up since the Bayeux Tapestry. In deference to the normal decencies, I am slightly moderating their actual words.
It was not the Legion that decided this Bill must be cost-neutral. It was executive government in the world's fourth-richest economy. In the ex-service community's view, it is demeaning of any department of state—most of all the MoD—to burn the midnight oil working on ways to cut spending on any entitled person's war pension or bereavement benefit. After all, what is being one of the world's richest economies worth if it does not enable a country to act justly and generously to those prepared to lay down their lives in its service?
There is no manifesto commitment involved here. Nor is there ever likely to be one for a policy change in opposition to which the ex-service community is so completely at one. The amendment is not against anyone, least of all my noble friend, for whom indeed I have every sympathy in his role—in so many of our debates—as the lone proponent of changing the burden and standard of proof. His lonesome stance reminds me, as he knows, of Oscar Wilde's sad comment at the first night of one of his plays:The play was a great success",said Oscar,but the audience a failure".
My amendment repairs a disfiguring fault in the Bill and is about acting justly toward and keeping faith with men and women who deserve well of this House and of Parliament as a whole. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1, to which the Commons have disagreed for their reason 156 numbered 1A, at end insert "but do propose Amendment No. 1C in lieu thereof".—(Lord Morris of Manchester.)
§ Lord Astor of Hever
My Lords, I start by declaring an interest as president of the Earl Haig branch and the Kent County branch of the Royal British Legion. The noble Lord, Lord Morris of Manchester, made a strong argument for his amendment.
Only this morning I received a copy of the Minister's letter, dated 29 October, to Ian Townsend of the Royal British Legion—which he has not yet received. That is the second time that a detailed letter has arrived on the morning of the debate. I complained last time about receiving detailed costings at the last minute. The enclosure in the letter is from the Government Actuary, dated 14 October. The meeting, to which the Minister refers as having taken place between the Royal British Legion and its legal adviser on one side and the MoD on the other, was on 15 July. It has therefore taken the Government Actuary three months to produce the letter. It has then taken more than two and a half weeks for the MoD to send the letter to the Royal British Legion.
The letter of 14 October from the Government Actuary is predicated on an assumed additional number of successful claimants totalling 1,600. That is information which the MoD has provided to the actuary as an assumed figure. We have no way of knowing whether that assumption is reasonable. However, implicit in the MoD advancing that assumed figure is its acceptance that 1,600 people, who previously would have received a war pension under the existing scheme, will now no longer be eligible because they will not be able to discharge the burden of proof imposed on them.
In the other place, Ivor Caplin argued that the amendment moved by the noble Lord, Lord Morris, and passed by this House went further than the existing war pensions scheme. That does not appear to be borne out by the Government Actuary, who uses the words, in opening:I am writing regarding the extra costs that would arise from changing the proposed Armed Forces Compensation Scheme with the change in the burden and onus of proof to that currently applying to the War Pensions scheme. This would reflect the apparent intention of the recent Lords' amendment".Therefore, the actuary appears to understand the amendment to apply the war pensions scheme burden, but the Minister in the other place was trying to spin it further than that.
The actuary then hedges the advice by saying:Clearly predicting how such an amendment would work in practice is difficult and you have to make a number of assumptions on the potential impact".Indeed, the actuarial calculations are laced with broad estimates, uncertainties, caveats and being subject to margins of error. But the Minister, in his letter, appears to have transformed those into a certain sum of money. It is unacceptable for the Minister to come to the House at the 59th minute of the 1lth hour and seek to railroad us into accepting a proposition based on simulated figures. Why should we believe them? We 157 question the Government's figures of more than £300 million over 10 years. Only a month ago, that was £200 million. It is unfortunate that Ministers choose to inflate annual figures into headline-grabbing figures over 10 years.
The Minister's letter, although making it perfectly clear that the Government's position is unchanged, contains some helpful points, and it is a pity that those were not raised earlier. If they had been, it would have made for better co-operation. The Minister must by now be aware of the genuine anxieties from all sides of the House about the way in which the new scheme will work.
The Government appear not to be prepared to compromise or to give an inch. The noble Lord, Lord Morris, has said that he is perfectly willing to discuss the fine wording of the amendment to meet the Government's latest criticism. Members on all sides of the House will recognise the tremendous work carried out by the Royal British Legion. The RBL has made it clear to the Government that it is prepared to discuss compromise. The MoD has suggested that a burden of proof based on reasonable doubt permits many spurious claims to succeed. The RBL tells me that it would not support this, nor would it support any claims it believed to be spurious.
The Government's overt threat is to abandon the Bill if they cannot have their way. The inference is that it is others, including the RBL, all of whom have the best interests of the Armed Forces in their minds, who are being uncompromising.
The Government have produced questionable figures at the very last moment. This sends the wrong message to our Armed Forces if they are injured or become ill in the line of duty. We on these Benches recognise the unique status of members of the Armed Forces. This particularly relates to their unlimited liability to serve anywhere, at any time, under any conditions and, very often, with the requirement to put their lives on the line. Her Majesty's Government must provide them with much greater confidence in the new schemes.
§ Lord Redesdale
My Lords, perhaps I should start by not declaring an interest, in that I am not a member of the Royal British Legion, because I know that the Minister will also declare an interest. However, I must say that the work undertaken by the RBL has been unstinting on behalf of its members and, despite the strong exchange of words over the timing of letters and their contents, I do not think that anyone in the Chamber will undervalue the work, and future work, of the RBL for the former services community.
The noble Lord, Lord Morris of Manchester, set out clearly and comprehensively the problems that face us, as has the noble Lord, Lord Astor of Hever; so I shall not examine the minutiae of the amendment. However, it goes to the fundamental concept that underpins the Bill—that it has to be cost neutral. That means that, while we have heard much about the winners from the scheme, the amendment underlines who shall be the losers.
158 There are certain people who, by not receiving benefits, will pay for the improved benefits that are welcome. One of the issues that has unsettled us is that it was seen as being necessary for the Bill to be cost-neutral. The Minister has talked about best practice. Obviously we would like to see this scheme in operation, given that it is for a special group of people. We have talked about whether one can put one group of pensioners above another. However, we are dealing with a special group of people to whom we owe a debt. It is unfortunate that the Government have stuck to the cost neutral aspect.
I believe that the noble Lord, Lord Morris, will take this matter to a Division; and I know that the Minister will say that if the vote is carried that the Bill will be abandoned and all the benefits that would accrue from it would be lost. It is unfortunate that that state of affairs has come about and is the choice before us.
§ 3.45 p.m.
§ Lord Craig of Radley
My Lords, the burden of proof issue has not suddenly been sprung at a late stage on an unsuspecting and unsighted Ministry of Defence. There has been a series of meetings and exchanges about it between the Royal British Legion, MoD officials and Ministers over many months. It has been at the heart of the RBL's concerns. The issue was extensively debated at Second Reading and, before that, in another place. I shall not repeat the arguments now, except to remind the House that on Second Reading the Minister relied primarily on the argument for adopting the balance of probabilities standard because it,is used widely elsewhere".—[Official Report, 10/06/04; col 495.]We have now heard from the noble Lord, Lord Morris, regarding the £200 million and £300 million figures that have since been introduced. Ministers need to explain themselves.
What leaves a most unfortunate impression is that the MoD has no firm idea of the possible financial penalty. It did not even pray that in aid to start with, but has since been ratcheting it up to support the latest plank of resistance—that it is just too costly. The pressure on this House and another place to cave in has been further increased by explicit ministerial statements that if the Government do not get their way on this single aspect they would pull the Bill. That is a very serious position for us to face. Is it defensible?
The Armed Forces have been awaiting a new pension scheme for many years. The one that is now proposed is reasonably good. That has been said on all sides of this House and in another place. We have been told on a number of occasions that the two schemes—regarding pensions and compensation—will, in Mr Caplin's words, "each be broadly cost neutral". So some disagreement about the compensation scheme should have no impact on the balance struck in the pensions scheme. We are told that they are separate. Are the Government really so intransigent that they would let down all those service men and women that the new pension scheme will help to recruit and retain for a cost amounting, even at the worst figure that they 159 have so far provided, to one hundred thousandth of the efficiency savings that the Chancellor has set Government to find in the next few years?
Mr Caplin further stated that the Government had,taken the savings from the changed burden and standard of proof and used them to provide bigger payments where the need can be expected to be greatest".—[Official Report, Commons, 20/10/04; cols. 905–6.]Noble Lords should and have welcomed that recognition that the present scheme is not sufficiently supportive. The nub of the MoD's case seems to rest on a presumption that there is around £30 million a year, or some other large figure, that would be spent on malingerers and those who do not deserve compensation for illness or injury if the burden of proof standard is not changed.
No one would deny that in any scheme there will be those at the margin, and even those just outside it, who benefit. But we have had no clear explanation or evidence that this is both so seriously expensive and prevalent. Moreover, I believe that it behoves us to consider more closely the situation faced by a claimant. In the red corner there is the Ministry of Defence, with all the resources, experience and expertise that it could need to deal with any claim for compensation. In the blue corner is an individual, a service man or woman, who is possibly stressed and certainly with a demonstrable illness or injury. Although the MoD must provide the claimant's medical and other service records, it cannot be the referee. The individual in their corner is on their own, facing a heavy puncher on the other side of the ring. It is even suggested that legal or other assistance will not be necessary for the claimant. That would unbalance the position even more in the MoD's favour. The arrangements for refereeing a disagreement sound complex and daunting to an individual who is unfamiliar with such processes. An independent PAT and social security commissioners may become involved.
The Department for Constitutional Affairs is having to work on reform of the tribunal process because the service for appellants is not good enough or satisfactory. Does not that all sound frightening for the claimant? It fills me with foreboding. Surely, we owe it to our service men and women, and veterans, to retain a system that places the onus more squarely on the shoulders of the MoD and not the stressed individual. One has to look only at the prolonged delays and unsatisfactory treatment of Gulf War veterans by the MoD over a decade and more to appreciate that switching to a balance of probabilities is a step too far for the services.
The greatly respected Defence Select Committee in another place thought so. I agree with them. Noble Lords should also note that the MoD intends that the new burden of proof will apply to all servicemen and women from next April. So it seems that today's personnel will be deprived of their entitlement to the old standard of proof. Is that fair? Ministers stress that entitlements relate to arrangements in place when the individual was serving. When a suggested change is 160 going to cost the MoD, Ministers resist. When the MoD spots a saving, the individual must accept it. It is a "heads I win, tails you lose" situation.
The Government are prepared to short-change compensation standards for today's servicemen and women but will not agree to help others who are short-changed in the legacy issues. I support the amendment, which is designed to do no more and no less than to continue an arrangement that has been in place since 1942. Today's servicemen and women deserve it; so do new recruits. I support the amendment of the noble Lord, Lord Morris.
§ Lord Bramall
My Lords, I find myself in a painful quandary as to the best way forward for this most important Bill. I am also in some contention with my noble and gallant friend, whose views I greatly respect, and it is always good to see two five-star officers going at each other.
These two amendments, over which on Report in your Lordships' House the Government were defeated and which have since been rejected in another place, continue of course to remain matters of deep concern. That is the case in relation to the first one on the burden of proof in the compensation scheme—so ably and, indeed, passionately championed and still being championed by the noble Lord, Lord Morris of Manchester—because research by the Royal British Legion, which he has so strongly supported, has shown how deserving cases could be, and probably would be, disadvantaged by the new criteria. And it is the case in relation to the second amendment, which we shall discuss shortly—the excellent one put forward by my noble friend Lord Freyberg—because it would be parsimonious of the Government in the extreme if they were to go on brushing aside the plight of the most vulnerable post-retirement marriage widows.
Debates on these amendments in your Lordships' House, together with another one on unattributable pensions for life for existing widows, revealed how much concern, and indeed unfairness, still exists and needs to be addressed over these issues.
At the same time, I am very conscious that the new Bill, as drafted, gives current and future servicemen and women and their dependants a good pension deal—indeed, a much better one than the Ministry of Defence originally proposed. I am personally seriously worried that, even if further successful amendments in your Lordships' House were upheld in another place and then had to be renegotiated with the Treasury, not only would the Bill, already so long delayed and so urgently needed, be put back considerably but, bearing in mind the iniquitous cost-neutral aspect of the funding, it would lead to other important parts of the package suffering to the detriment of the Armed Forces as a whole.
So, after much thought, I now believe that the time has come to let the Bill go through with the support and blessing of your Lordships' House. If only Ministers would agree in all sincerity that once the Bill has received Royal Assent, these outstanding matters—especially the legacy issues—will be looked 161 at again, considered and discussed, some of the principles of pensions for life having already been agreed, I for one would not wish to delay the Bill any further.
§ Lord Hodgson of Astley Abbotts
My Lords, the noble Lord, Lord Morris of Manchester, hung his arguments for his amendment on two pegs: first, the change in the responsibility for proving the case from the MoD to the claimant; and, secondly, the change in the level of proof. I can get my mind around the second of those, recognising all the time the unique position of our servicemen and servicewomen.
I think that the Minister explained to us in previous debates the nature of what my noble friend Lord Astor referred to as "spurious" or falsely inflated claims. We have to recognise that we now live in a different age from that of 40, 50 or 60 years ago. We are more litigious and more disputatious, and I do not think we can expect that our Armed Forces, unique though their role is and unique though the dangers that they face are, will he immune from those changes in society. Therefore, I can understand why the Government have sought to proceed with the change in the level of proof.
However, I have much more difficulty with, and will he listening with great care to what the Minister has to say about, the other basis of the argument put forward by the noble Lord, Lord Morris. Here, I follow the noble and gallant Lord, Lord Craig, because this is about the individual versus the bureaucracy.
The switch from the bureaucracy to the individual seems to me to break one of the most important aspects of justice, which is—I hesitate to use this phrase in relation to the Armed Forces (Pensions and Compensation) Bill—equality of arms. As the noble and gallant Lord pointed out, we are dealing here with an individual serviceman or servicewoman who clearly believes that he or she is suffering, and in most cases will be suffering, mental or physical disability and is having to take on the might of the MoD. There is no equality of arms in that.
The predilection of a bureaucracy is to play for time and to spin out procedures—not so much for reasons of conspiracy but simply for reasons of administrative delay and because priorities are different. For the individual serviceman or servicewoman, this will be the most important thing in his or her life—it will be of critical importance. For the person at the MoD, it will be just another day at the office. That is why it will be so difficult for individuals to make their claim and why many of them, I fear, faced with this mountainous bureaucracy obstructing them, slowing things down, asking for more information and delaying hearings and so on, will simply say, "I can't face the continuing psychological effort required to press this claim", and they will abandon a perfectly legitimate and worthwhile claim.
When the Minister comes to reply, I shall want to hear him explain very clearly why my concerns will be met—that is, that there will be a very clear, sympathetic and easy way for the individual to move 162 his claim forward. I do not think that I have yet heard that from the Minister, and I hope that he will be able to address it in his response to the amendment.
§ Lord Freyberg
My Lords, I intervene in this debate because I wish to add my voice to that of the noble Lord, Lord Morris of Manchester, and others around the House on the heavy-handed manner that the Government have adopted in order to get their legislation through.
At a meeting held a few weeks ago with the Minister in another place to discuss my amendment on post-retirement marriages, I, too, was told that if I proceeded with it in any form, he would withdraw the entire Bill. It seems extraordinary that such threats are handed out when the purpose of my meeting was to look at the options available and to find out whether any were acceptable.
The issue at stake is whether the Government are prepared to listen to the arguments put forward in both Houses or whether we are expected to behave simply as rubber stamps. The noble Lord, Lord Morris of Manchester, has put a strong case, and I trust that the House will refuse to be intimidated by the Minister in the other place and, instead, will listen to the arguments for what they are.
§ Lord Boyce
My Lords, the eloquence of previous speakers means that I do not need to add to the debate. However, I become more concerned every day about the disillusionment of our Armed Forces with higher management in defence. If this amendment is not followed through, I believe that that will cause the disillusionment to deepen further.
I certainly also believe that it is wrong for the message to go out to them that we are being threatened with the withdrawal of the Bill if we do not withdraw the amendment. Perhaps the Minister would like to say in his response to the amendment how he will transmit the message to the Armed Forces that the amendment has been turned down. Will he use the words, "This is a fair result"?
§ 4 p.m.
§ Lord Bach
My Lords, first, I declare that I am an associate member of the Lutterworth and District Branch of the Royal British Legion. That is an interest that I am proud to declare. Secondly, I thank all noble Lords who have spoken with passion and great commitment. I am grateful to all of them for the tone of the debate.
The fact is that elected Members in another place have voted by a substantial majority to disagree with this House's Amendment No. 1 on the burden of proof for the compensation scheme and have provided a reason for that disagreement. I am grateful to my noble friend Lord Morris for altering his amendment and for the clarification of intent that that redrafting provides.
The House will not be surprised to hear that we propose to resist the amendment. The grounds for resistance are the same. It is quite right that this issue 163 should have received such focus. It lies at the heart of the new compensation scheme. There has been a full debate on the burden and standard of proof at every stage of the Bill's passage. I shall not go into detail on the implications of the amendment again, as those were explained in another place.
As drafted now, the amendment seeks to introduce the war pensions scheme approach of applying the more generous standard and burden of proof to the new Armed Forces compensation scheme when considering whether an injury, illness or death was caused by service. It is a fact that the war pensions scheme burden and standard of proof mean that claims can succeed even when it is unlikely that service is the cause. I do not consider it reasonable to allow such arrangements to apply to a scheme for the future.
I remind noble Lords of the ways in which, during the passage of the Bill, we as government have sought to take on board legitimate concerns raised and have, where practical, sought to provide reassurance of our intention to promote a scheme that properly meets the special circumstances of military service. I have already announced the arrangements for the transitional period for the new pension scheme, when current serving personnel will not be able to make a choice of scheme, and, importantly, our commitment to include the new compensation scheme in the annual statement on veterans affairs made to the other place.
As the House has already heard, my honourable friend, the Veterans Minister, Ivor Caplin, met with the noble Lord, Lord Freyberg, to discuss his amendment. I quote from what my honourable friend said in another place on 20 October 2004:Last week, however, I had a constructive meeting with Lord Freyberg, and I indicated to him that we may be able to build on that meeting in future, when the Bill has received Royal Assent. I hope that, when that occurs, we can perhaps look at some of the other issues".He later said:During my discussions with Lord Freyberg and the Forces Pension Society, I have indicated that we are prepared to continue to consider the matter".—[Official Report, Commons, 20/10/04; cols. 939–940.]Further, the Veterans Minister is in active discussion with the Secretary General of the Royal British Legion, Brigadier Ian Townsend, about how officials might share the Royal British Legion's analysis of claims success rates under the new scheme. Indeed, my honourable friend and Brigadier Townsend met six days ago on Wednesday 27 October.
Throughout the process we have recognised the important role that the Royal British Legion plays in compensation issues, and remain committed to close working to achieve solutions that so far as practicable meet its concerns. I pay a genuine tribute to the Royal British Legion for all that it does and for the work that it has carried out in this particular area. I hope that noble Lords will recognise our willingness to resolve issues and engage in constructive discussions.
164 We have been asked many times before, as I have today, whether we could give examples of cases where the war pensions scheme has delivered decisions in terms of entitlement that should not be justifiable in an up-to-date scheme. In the past, and even today to some extent, we have been reluctant to do this, not because the evidence does not exist, but because we do not wish to imply that some current war pensioners were in some way undeserving.
I know that many, particularly of our older war pensioners, claim only reluctantly, and they should not feel that they are wrong to do so. They applied correctly under the rules as they are currently set out. Nonetheless, a change is now due if we are to produce a scheme that is focused properly on those whose injuries were likely to have been due to service, thereby freeing up resources to give greater help to the more severely disabled.
In this context, with the leave of the House, I shall give a couple of anonymous examples. The first is that of a 62 year-old ex-National Serviceman who claimed to have incurred a knee injury playing regimental football some 40 years ago. His service medical records had no note of the injury and post-service civilian medical records identified the onset of pain only in the previous two years. X-rays confirmed early arthritis in his knee. He also had some minor twinges in other joints. The claim was rejected by the Veterans Agency but overturned on appeal.
The second example is that many claims initiated by the widows of ex-servicemen rely on the fact that legislation allows war pensions awards if service in the Armed Forces caused or substantially hastened death. The concept of substantial hastening is not defined and awards have been made in cases of death at age 80 years and 90 years plus, more than half a century after leaving service. Some of those cases, involving death due to heart failure, have been linked to alleged minor sports injuries for which there is no documented link to service. They were said to have inhibited mobility leading to obesity, and ultimately to heart failure.
In those examples, which I am reluctant to bring before the House, I am not disputing that the claimants were suffering from a medical condition, or their entitlement under the scheme. I am simply suggesting that a cause other than service is far more likely to have been the cause of the condition or death. It is our belief that, given the choice between focusing the money available more effectively on the more severely disabled due to service who are poorly provided for under existing arrangements, or covering conditions which in all probability do not have a service cause, the former should benefit. We cannot afford to do both.
Let me say a brief word about costs. If we were to insert into the new compensation scheme a burden and standard of proof more generous than we have announced, such as that used by the war pensions scheme, that would be expensive. As the House has heard, our latest actuarial assessment is that the total cost would run to over £300 million over 10 years, with 165 a continuing annual premium thereafter. To be clear, that sum is not a saving, as has been suggested in the past; it is an additional cost to the Government.
As I said, there is no saving as a result of changing the burden and standard of proof. Were we to accept the amendment, substantial additional money would be required over and above our broadly cost-neutral proposals. That is because we have taken the savings from the changed burden and standard of proof and used them to provide a better focus of benefits on the more severely disabled, a group who, as I have said, are badly served by current arrangements. The most obvious example of that is the award for the first time of cash lump sums for pain and suffering. For the most seriously disabled the lump sum could be up to £280,000—over 40 times the basic annual war pension paid for 100 per cent disablement.
Frankly, if opposition parties wish to press on with the amendment to introduce the burden and standard of proof, they need to make clear whether they would abandon the improvements for the more severely disabled, or whether they would be prepared to commit themselves to provide the additional funding required. We simply cannot begin to afford both to improve benefits for the more severely disabled and to maintain the current generous burden of proof within existing funds. Nor would it be right to do so. We are sure that the right decision must be to make better provision for the more severely disabled and not to pay benefits in an occupational scheme to cases where injury, illness or death is unlikely to have been caused by service.
It is important to recognise that no single element of the new pension and compensation schemes can be considered in isolation. The Bill provides for a long sought-after comprehensive package of new pension and compensation arrangements suitable for today's Armed Forces. These arrangements include provisions which represent very considerable improvements on the current schemes at a time when the wider pensions scene is one of reducing value of benefits.
The changes include very significantly improved widows' and widowers' pension benefits—a 25 per cent increase in the value of widows' pensions, and, as many of your Lordships have argued for many years, an increase in death-in-service benefit to four times pay from a maximum of one and a half times, which is a major step reflecting the particular risks of service life. And we have provided a much better focus of compensation benefits on the more severely disabled. Many of the improvements respond to concerns that have been voiced for years about the current arrangements.
However, I have to stress that in the Government's view the two new schemes can only proceed together; they support and complement each other in a balanced package designed to meet the needs of Armed Forces personnel and their families in the 21st century. I must remind the House that in this respect they have the full support of the present chiefs of staff. Significant changes to any area affecting either the coherence or the affordability of the schemes would inevitably cause 166 us to look again at the overall package and mean that we were unable to progress with some or all of the improvements it currently contains. What is on offer is an overall package that redistributes resources and that better meets our manning needs and employer responsibilities. It is just not affordable to keep the generosity of the old and the best of the new.
I have to tell the House that if the amendment is passed, the Government's view—this is not a threat—is that the Bill would not be viable. It would mean that the Bill would fall and the improvements would be lost. I do not believe that that is what your Lordships want, the Armed Forces want, or the country wants.
I accept that the Royal British Legion has been flexible in recent months in offering alternative formulations of burden and standard of proof arid I thank it for its assistance. However, the flexibility has not been all one way. We have made a number of changes to our proposals already to address the concerns of the Royal British Legion, and three in particular: first, an extended time limit for claims of five years instead of the three originally proposed; secondly, provision for exceptional review where deterioration of a condition is substantially greater than that which would normally be expected, and which was recognised in the original award; and, thirdly, agreement to report to Parliament annually on the scheme's operation.
In addition, and importantly, we will be consulting veterans' organisations on the detailed rules for the scheme before they are finalised, as set out in the draft statutory instrument. We are also willing to look with the Royal British Legion and other veterans' organisations at ways in which we can provide greater reassurance on the transparency and independence of the decision-making process, and provide greater support for claimants.
The noble Lord raised the issue of claimants. I can tell him that the Government have looked carefully at the legion's concerns that our proposal did not represent a fair balance of responsibilities between the claimant and the department. As I have explained before, our approach does not place the whole evidential burden on the claimant. The scheme rules will provide that the Secretary of State, or at appeal the Pensions Appeal Tribunal (PAT), will decide whether, on the basis of all the relevant evidence before them, it is more likely than not that the injury, illness or death is due to service. It will also include the claimant's service and medical records and any additional evidence obtained by the Secretary of State.
§ 4.15 p.m.
§ We do not intend that claiming under the new scheme should feel different for claimants. We consider that it would be unreasonable to require the claimant to obtain evidence relating to his claim. That could be from any source, including his official service records. The scheme rules will therefore impose a duty on the Secretary of State to make available such evidence on request. Of course claimants are free to submit evidence as they think fit.167
§ There will be the right of appeal. The PAT will of course have regard to the entire body of evidence, whether provided by the claimant or by the Secretary of State. We believe that that will place a responsibility on the Secretary of State to provide a credible response to any substantial evidence submitted by the claimant.
§ Lord Hodgson of Astley Abbotts
My Lords, I am grateful to the Minister for that very full response. Will the rules provide timescales? In other words, will there be rules to prevent the process being elongated? On the draft rules to be discussed with the veterans' organisations, will they require the MoD to reply within certain specified times?
§ Lord Bach
My Lords, I have not seen the draft rules. I am not in a position to be able to answer accurately. The draft rules will be open to discussion with veterans' organisations. If that is one of the points of concern, I am sure that it can be looked at very carefully. I am careful in the answer I give to the noble Lord, but I see no reason why that should not be looked at carefully.
MoD Ministers will take a close interest in the working of the scheme. Frankly, if it is not found to be delivering fair results, I can confirm to the House that the design of the arrangements will be reviewed. It remains our strongly held view that a beyond reasonable doubt standard of proof is not appropriate to a no-fault scheme and is out of line with current good practice. As I indicated in the examples, it delivers decisions that we believe can no longer be justified. We are confident that the revised statement of approach on this issue will ensure a fair division of responsibilites. Our work has indicated that no claim would fail where there is reasonable evidence of injury, ill health or death due to service.
I fully support the argument that we should recognise the unique and special contribution that our Armed Forces make by having a generous compensation scheme for injury or illness caused by service. It is important that we should concentrate our resources on cases where service is the likely cause and, in particular, focus our provision on the seriously disabled. That is what we are doing. The issue for the House this afternoon is whether, within existing funds, we should make improvements for the more seriously disabled or introduce the generous war pension scheme's standard and burden of proof.
We have no doubt that it is right to address the inadequate level of benefits for the more seriously disabled rather than extend benefits to those whose conditions are unlikely to have been caused by service. That is the choice the House has to make. The other place, the elected House, has made its views quite clear and on a point where affordability is, frankly, at the heart of the issue, I would ask noble Lords to accept this judgment.
§ Lord Astor of Hever
My Lords, the Minister mentioned a figure of £300 million over 10 years; that 168 is £30 million a year. Does he agree that every page of the actuarial report he mentioned is riddled with uncertainties and caveats?
§ The Countess of Mar
My Lords, does the Minister appreciate that by citing those two examples he is not demonstrating the wilfulness of former armed servicemen, he is demonstrating the weakness of the appeal system?
§ Viscount Slim
My Lords, before the noble Lord sits down, am I right in understanding that if the government measures are passed, he is prepared to have further talks with his honourable friend in another place, Mr Caplin, and the noble Lord, Lord Freyberg, to see whether there is some way forward? Would that include the pre-1973 position of widows who, as I have said, are on one-third of a miserable, miserly pension and will not be offered to buy in for half, or whatever? Will that come up in the discussion?
§ Lord Bach
My Lords, I am grateful to the noble Viscount. He will know that earlier in this House, the Government made a concession on pre-1973 widows—I know that he is referring to widows since that time. I cannot give him that guarantee. I can just repeat what my honourable friend Mr Caplin said in another place. He met the noble Lord, Lord Freyberg, and indicated to him that,we may be able to build on that meeting in future, when the Bill has received Royal Assent. I hope that, when that occurs, we can perhaps look at some of the other issues … During my discussions with Lord Freyberg and the Forces Pension Society, I have indicated that we are prepared to continue to consider the matter".—[Official Report, Commons, 20/10/04; cols. 939–940.]I want to be absolutely straight with the House: those are the words that were used in the other place and I know that Mr Caplin stands by them.
§ Lord Garden
My Lords, before the noble Lord sits down, will he return to where he talked about those reluctant claimants? Would he not expect that with a more difficult approach to the burden of proof, their reluctance will turn in to their not being claimants at all, although they have a proper case?
§ Lord Bach
My Lords, I do not think that that will follow. It is important that the rules are laid out. We really want those who received injury due to service to get what they are entitled to and to try to make it easier for them to come forward, rather than less easy. That 169 is what we intend. I understand the point that the noble Lord makes, but we want servicemen injured in service to know their rights—perhaps to have them more clearly laid out to them than in the past—and it to be taken for granted that they will make a claim where such a claim is justified.
§ Baroness Strange
My Lords, before the noble Lord sits down, can he confirm his promise that if the Bill is passed, he will ensure that all pre-1973 war widows retain their pension for life?
§ Lord Morris of Manchester
My Lords, I am grateful to all noble Lords who have spoken in the debate—including my noble friend—which has been one of high quality. He will not be surprised that I do not accept his submission to the House. The case that my noble friend cited of an ageing servicemen who claimed benefit for a soccer injury during his service is not only utterly remarkable but totally bizarre. To leave anyone with the impression that such a case is in any way common or even representative of an insignificant minority would be even more bizarre. What the ex-service community has asked for is examples of systematic abuse. The charge was that the war pensions scheme is now abused day after day at considerable cost to the taxpayer. The only example that we have now been given is the one that I have just cited which, as I said, is remarkable to the point of being totally bizarre.
The Prime Minister, the Chancellor and the Defence Secretary got it right in describing our Armed Forces as the best in the world. That is why they deserve the benefit of the doubt and an acceptable burden of proof. Parliamentarians have a compelling duty to ensure justice for those prepared to lay down their lives in our service and the dependants of those who do so. Indeed, we see that as our most compelling duty.
The clash this afternoon is not between Left and Right, but between right and wrong. Let us not be intimidated from doing what we believe to be right. I ask the House to approve the amendment.
§ 4.25 p.m.
§ On Question, Whether the said amendment shall be agreed to?
§ Their Lordships divided: Contents, 94; Not-Contents, 140.171
|Division No. 1|
|Addington, L.||Blatch, B.|
|Alton of Liverpool, L.||Boyce, L.|
|Astor, V.||Bradshaw, L.|
|Astor of Hever, L.||Brooke of Sutton Mandeville, L.|
|Beaumont of Whitley, L.||Chelmsford, Bp.|
|Biffen, L.||Chorley, L.|
|Clement-Jones, L.||Livsey of Talgarth, L.|
|Cox, B.||McNally, L.|
|Craig of Radley, L. [Teller]||Mar, C.|
|Craigavon, V.||Marsh, L.|
|Crickhowell, L.||Mayhew of Twysden, L.|
|Darcy de Knayth, B.||Methuen, L.|
|Dundee, E.||Michie of Gallanach, B.|
|Dykes, L.||Miller of Hendon, B.|
|Elton, L.||Monro of Langholm, L.|
|Erroll, E.||Montrose, D.|
|Fearn, L.||Morris of Bolton, B.|
|Ferrers, E.||Morris of Manchester, L. [Teller]|
|Finlay of Llandaff, B.||Murton of Lindisfarne, L.|
|Fitt, L.||Northbourne, L.|
|Flather, B.||Peyton of Yeovil, L.|
|Fookes, B.||Plumb, L.|
|Forsyth of Drumlean, L.||Rawlings, B.|
|Fowler, L.||Redesdale, L.|
|Freyberg, L.||Rees-Mogg, L.|
|Garden, L.||Renfrew of Kaimsthorn, L.|
|Gardner of Parkes, B.||Renton, L.|
|Glentoran, L.||Roberts of Conwy, L.|
|Greengross, B.||Russell-Johnston, L.|
|Griffiths of Fforestfach, L.||Sandwich, E.|
|Holme of Cheltenham, L.||Scott of Needham Market, B.|
|Hooper, B.||Selsdon, L.|
|Hooson, L.||Shutt of Greetland, L.|
|Howe, E.||Smith of Clifton, L.|
|Howe of Aberavon, L.||Steinberg, L.|
|Howe of Idlicote, B.||Stern, B.|
|Howell of Guildford, L.||Stoddart of Swindon, L.|
|Hunt of Wirral, L.||Thomas of Gresford, L.|
|Jacobs, L.||Ullswater, V.|
|Jenkin of Roding, L.||Vallance of Tummel, L.|
|Kalms, L.||Wade of Chorlton, L.|
|Kingsland, L.||Wallace of Saltaire, L.|
|Laidlaw, L.||Walmsley, B.|
|Lang of Monkton, L.||Watson of Richmond, L.|
|Lindsay, E.||Williams of Crosby, B.|
|Linklater of Butterstone, B.||Windlesham, L.|
|Liverpool, E.||Young of Hornsey, B.|
|Acton, L.||Dearing, L.|
|Allenby of Megiddo, V.||Desai, L.|
|Alli, L.||Dixon, L.|
|Amos, B. (Lord President of the Council)||Drayson, L.|
|Archer of Sandwell, L.||Elder, L.|
|Ashton of Upholland, B.||Evans of Parkside, L.|
|Bach, L.||Evans of Temple Guiting, L.|
|Barnett, L.||Farrington of Ribbleton, B.|
|Bassam of Brighton, L.||Faulkner of Worcester, L.|
|Berkeley, L.||Filkin, L.|
|Bhattacharyya, L.||Fyfe of Fairfield, L.|
|Billingham, B.||Gale, B.|
|Bledisloe, V.||Gavron, L.|
|Borrie, L.||Gibson of Market Rasen, B.|
|Boston of Faversham, L.||Goudie, B.|
|Bramall, L.||Gould of Brookwood, L.|
|Bridges, L.||Gould of Potternewton, B.|
|Brooke of Alverthorpe, L.||Graham of Edmonton, L.|
|Brookman, L.||Gregson, L.|
|Burlison, L.||Griffiths of Burry Port, L.|
|Campbell-Savours, L.||Grocott, L.[Teller]|
|Carter, L.||Harris of Haringey, L.|
|Chan, L.||Harrison, L.|
|Christopher, L.||Hart of Chilton, L.|
|Clark of Windermere, L.||Haskel, L.|
|Clarke of Hampstead, L.||Haworth, L.|
|Cohen of Pimlico, B.||Hayman, B.|
|Corbett of Castle Vale, L.||Henig, B.|
|Crawley, B.||Hilton of Eggardon, B.|
|David, B.||Hogg of Cumbernauld, L.|
|Davies of Oldham, L. [Teller]||Hollis of Heigham, B.|
|Hughes of Woodside, L.||Prys-Davies, L.|
|Hunt of Chesterton, L.||Radice, L.|
|Hunt of Kings Heath, L.||Randall of St. Budeaux, L.|
|Irvine of Lairg, L.||Rendell of Babergh, B.|
|Jay of Paddington, B.||Richard, L.|
|Jones, L.||Richardson of Calow, B.|
|Jordan, L.||Rogan, L.|
|Judd, L.||Rooker, L.|
|Kirkhill, L.||Rosser, L.|
|Laird, L.||Rowlands, L.|
|Laming, L.||Royall of Blaisdon, B.|
|Lea of Crondall, L.||Sawyer, L.|
|Leitch, L||Scotland of Asthal, B.|
|Lipsey, L.||Sewel, L.|
|Lockwood, B.||Sheldon, L.|
|McIntosh of Haringey, L.||Simon, V.|
|McIntosh of Hudnall, B.||Smith of Leigh, L.|
|MacKenzie of Culkein, L.||Stone of Blackheath, L.|
|McKenzie of Luton, L.||Strabolgi, L.|
|Masham of Ilton, B.||Strange, B.|
|Mason of Barnsley, L.||Taylor of Blackburn, L.|
|Massey of Darwen, B.||Temple-Morris, L.|
|Maxton, L.||Thornton, B.|
|May of Oxford, L.||Triesman, L.|
|Merlyn-Rees, L.||Truscott, L.|
|Mitchell, L.||Tunnicliffe, L.|
|Molyneaux of Killead, L.||Turnberg, L.|
|Morgan, L.||Turner of Camden, B.|
|Morgan of Drefelin, B.||Varley, L.|
|Morgan of Huyton, B.||Wall, of New Barnet, B.|
|Parekh, L.||Walton of Detchant, L.|
|Paul, L.||Warner, L.|
|Pendry, L.||Weatherill, L.|
|Peston, L.||Wedderburn of Charlton, L.|
|Pitkeathley, B.||Whitaker, B.|
|Plant of Highfield, L.||Whitty, L.|
|Ponsonby of Shulbrede, L.||Williams of Elvel, L.|
|Prosser, B.||Woolmer of Leeds, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.37 p.m.
§ On Question, Motion agreed to.