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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 11th hour and seek to railroad us into accepting a proposition based on simulated figures. Why should we believe them? We
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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.
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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.
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,
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
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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
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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.
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