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Lord Astor of Hever: I am grateful to the Minister for that explanation. Can he say a little more about the consultation process that his department envisages taking place to explain all this?

Lord Bach: I believe that this may come up in later amendments.

Lord Astor of Hever: I asked whether the Minister could give us some idea of the consultation process that would ensue before any modification to the new system takes place. I quite understand that the Minister may not have that information to hand, but I would welcome a letter.

Lord Bach: I hoped that I had given some details, but I shall take away that question to see whether I can provide more detail. I shall then write to all Members of the Committee.

To finish the point about scheme modifications, those on the current scheme will also move to a preserved pension at the age of 65 at a date to be decided, but this will affect only the pension rights earned for future service from that date.

I say to the noble Lord, Lord Astor, that the MoD accepts that it would not be reasonable to expect service personnel to make a decision on which pension scheme to choose without a benefits statement, to
 
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which I have already referred, comparing both schemes. In addition, we shall provide detailed information to assist in that decision so that they can discuss these issues with those nearest and dearest to them and, of course, with an independent financial adviser.

I hope that I have dealt with the three amendments in the group.

Lord Hodgson of Astley Abbotts: When the Minister writes to the Committee about this matter, will he explain whether the consent exercise, about which my noble friend inquires in relation to Amendment No. 18, will be the same as those being used under Clause 3—the accrued rights—which states that,

Will the consent arrangements be the same in all cases, or will a consent arrangement under Clause 1 be the same as a consent arrangement under Clause 3? It would be helpful for the Committee to know whether there is one or several systems.

Lord Bach: I shall ensure that the letter will include an answer to that question.

Baroness Dean of Thornton-le-Fylde: First, I thank the noble and gallant Lord, Lord Craig of Radley, and, indeed, the noble Lord, Lord Astor of Hever, for supporting my Amendment No. 7. I also thank my noble friend for giving such detailed information at such short notice as I did not prewarn him of what I intended to ask. I shall have much to read. It is certainly not my intention to press the amendment today. However, I am not filled with enthusiasm regarding what appears to be an added voluntary contribution to cover personnel, but I guess that the devil will be in the detail. Therefore, it would be wrong of me to comment further now. I look forward to receiving the comments of my noble friend before Report.

Lord Craig of Radley: First, I thank the noble Lord, Lord Astor, and the noble Baroness, Lady Dean, who also spoke to my Amendment No. 15. The Minister made three points concerning my amendment. The first was that the first paragraph was inappropriate. As he will recall, he said on Second Reading:

So he actually tied himself to a date. I was not attempting to tie the measure to a calendar date, but I hoped to get on to the face of the Bill a provision that all new entrants would be members from the date of introduction. It seems to me not unreasonable to seek that amendment. Even though this is supposed to be a paving Bill, this seems to me to be a particularly important element of it.
 
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As regards the two points that the Minister made about the second amendment, he referred once again to cost. He will remember that he said at Second Reading:

to which I asked:

to which the Minister replied,

I do not think that in anyone's wildest imagination the widows that we are talking about, if they were to get an upgrading on the lines that I have suggested—to which I believe they are very much entitled, bearing in mind that their spouses will have paid for their pensions—would incur a figure amounting to billions of pounds. That suggestion is totally misleading. The Minister may not be able to answer now, but I press him to give the Committee a better indication of how much more non-attributable widows who have been drawing pensions since the death of their husbands would get if they were allowed to move to the new scheme. The new scheme has great advantages. I, for one, welcomed it most warmly, as have other noble Lords. For this particular legacy issue to be allowed to remain unresolved is quite unacceptable.

If it really is a matter of costs, the Committee deserves to be given an indication of the cost of the measure. As regards the argument that the measure would breach the policy which successive governments have followed of no retrospection, one should bear in mind that a number of individual retrospective awards have been made in recent conflicts. It would be wrong to mention names, but the Minister will be well aware that on a number of occasions the Ministry of Defence, for good reasons and with my total support, has breached the policy which has been followed up to now. Therefore, it is rather unsatisfactory to be told that we do not breach the policy.

Lord Bach: I, of course, hear the powerful comments of the noble and gallant Lord, Lord Craig of Radley. He is entitled to be given figures of the extra cost involved. I am not in a position to give him meaningful figures at the moment. If I may, in the letter that I shall write to the noble Lord, Lord Astor, I shall include figures, if I can.

Lord Craig of Radley: I hope that the Minister will not mind my saying that the phrase, "if I can" is not acceptable. We really must be given a figure because the Minister has claimed on more than one occasion that the measure would be unaffordable. I cannot see how he can claim that the measure would be unaffordable but not tell us what the relevant figure is.
 
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Lord Bach: I shall try to explain. The figures are immense; they are very large indeed. I do not want to give the noble and gallant Lord a figure now that turns out to be higher or lower than the actual figure. However, I assure the noble and gallant Lord that the figures about which we are talking are very substantial indeed.

Lord Craig of Radley: I return to the point to clarify the figure that I hope the Minister will be able to provide; that is, the figure so far as it affects the widows and widowers of members of the Armed Forces. I heard what the Minister said earlier about doctors, firemen and so on, but that is not the matter on which I believe the Committee should be engaged this afternoon.

Lord Bach: I understand exactly that the figure the noble and gallant Lord seeks concerns widows and widowers of members of the Armed Forces.

Baroness Dean of Thornton-le-Fylde: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Manchester moved Amendment No. 8:


"( ) 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 noble Lord said: In moving Amendment No. 8, I wish to speak also to Amendment No. 30 standing in my name and that of the noble Lord, Lord Astor of Hever. In doing so, I have two interests to declare: as Honorary Parliamentary Adviser over many years, both here and in another place, to the Royal British Legion and as Vice-President of the War Widows' Association. It may be thought that I should also declare as an interest my chairmanship over 14 years, elected by the House of Commons as a whole, of the Managing Trustees both of the Parliamentary Contributory Pension Fund—no mean scheme—and the House of Commons Members' Fund.

It befits the importance of the issue these amendments address—namely where the burden of proof for awards under the war pensions scheme should lie—that it is being debated on this opening day of the Bill's Committee stage. For it is of the first importance to service and ex-service men and women alike.

Nothing was more strikingly clear in the debate on the Bill's Second Reading than the near consensual support for the purpose of my amendments. Nor could it have become clearer, since the Bill's Second Reading debate, that the ex-service community is totally at one in backing them. Indeed, in this my fortieth year in Parliament, I cannot readily recall that community being so united and committed on any legislative issue.
 
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I quote briefly from just one message received by noble Lords about these amendments:

it states,

It adds:

That figure was not plucked from the air. It is based on the Legion's involvement in a vast range of case work, and I am delighted to see here this afternoon Tom House of the Legion who has given such distinguished service to war pensioners and their dependants over very many years.

Last year alone, over 1,300 initial cases came the Legion's way and scrupulous care was taken in making its estimate that up to 60 per cent of claims that would currently succeed would not do so if the proposed change goes ahead. The Government's reaction was to cast doubt on the estimate, while doing nothing whatever to produce one of their own. In an attempt to allay criticism of this negative stance, they told the House of Commons:

That was not true. They did not join in discussion with the Legion. And even if they had, it was for them to produce a valid statistical analysis of their own, based on data available to Ministers, not simply to criticise the Legion's methodology without even particularising their criticism.

There have been other false claims. One is that the "balance of probabilities" standard of proof is more modern. But as was demonstrated in the debate at Second Reading, that too is untrue. Of course, "balance of probabilities" is anything but a modern invention.

At Second Reading my noble friend said of the proposal to change the burden of proof from "reasonable doubt" to "balance of probabilities":

This completely ignores the shift in the standard of proof. Reasonable evidence is required under the war pensions scheme as it stands now, with the benefit of doubt given to the claimant, but in future a claim would fail if it did not satisfy the "balance of probabilities" test.

My noble friend also said at Second Reading,

But this is not new and indeed is being changed so that, in future, for appeals on points of law, the claimant will be stripped of an existing entitlement to paid legal
 
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advice and representation. That was an issue very ably raised by the noble Lord, Lord Redesdale, at Second Reading.

Again, it is demonstrably wrong to suggest that there is nothing inequitable in placing our Armed Forces on the same footing as civil servants, teachers and other public sector workers whose employers have compulsory employers' liability insurance and who also have ready access to life insurance, permanent health and other forms of insurance cover.

Service men and women accept unlimited liability in defending the interests of this country. Their one safeguard, if they become incapacitated due to their service, has been the war pensions scheme with its standard of proof strongly based on "reasonable doubt". Dumping that safeguard will leave service men and women in an extremely vulnerable and totally unacceptable position. As the House of Commons Defence Committee said after considering the proposal to do away with that safeguard:

That is the ex-service community's case for insisting that the "reasonable doubt" standard of proof must be retained, and for these amendments. It is strongly reinforced by the sombre news this morning that yet another soldier with the Coalition Forces in Iraq is now facing decapitation at the hands of captors whose deeds are every bit as bad as their words. Who can compare that risk with those run by civil servants and teachers? I speak having taught and having been on active service with Middle East Land Forces when Israel was still Palestine and the role of British troops was to stand between rival terrorist groups that had nothing to learn from Al'Qaeda.

The more I reflect on the exchanges about "burden of proof" at Second Reading, the more I am reminded of a comment by Oscar Wilde after the first night of one of his plays:

said Oscar,

In this case, Ministers appear serenely content with their proposal so fundamentally to change the war pensions scheme, while the service and ex-service men and women they commend it to are totally unimpressed and deeply concerned by the multiply flawed arguments adduced for the change.

We cannot expect the ex-service organisations simply to ignore their vast experience in this field or to set aside their fully documented exposure of the grave shortcomings of the proposed change.

Nor can we expect those convinced by the House of Commons Defence Committee's withering criticisms of the proposal simply to forget that committee's
 
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report. Nor again should we discount our legislative role and, indeed, bounden duty to scrutinise proposals to change statute law. Nothing attracts more approval of the House of Lords today than its high reputation for careful scrutiny at a time when the timetabling of Bills in the House of Commons is more the rule than the exception, a topic close to my heart as the author of a book on parliamentary scrutiny used in universities as a textbook, which makes the scrutinising of controversial legislation an especially sensitive issue for me.

It is not too late for Ministers now meaningfully to consult the Royal British Legion to end the present impasse. And here I must emphasise that I know the decision on whether to do so is not the direct responsibility of my noble friend Lord Bach, whose personal commitment to do all he can for the ex-service community I have never doubted. That makes me certain he will want to do all he can to help in response to this debate. How far he will be licensed to help we shall very soon hear. I beg to move.


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