Lords Hansard text for 4 Jul 200604 July 2006 (pt 0138)

Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson) rose to move, That the Grand Committee do report to the House that it has considered the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006.

The noble Lord said: I shall speak to the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006 and the Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006. Both these draft regulations were laid before Parliament in accordance with Section 11A(5) of the Pensions Appeal Tribunals Act 1943. The statutory instruments are subject to approval by resolution of both Houses and were considered in another place on 26 June.

I make it clear that they refer to two entirely separate and different schemes. First, I shall address the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006. This will provide that there is no right of appeal for decisions to make a temporary award under the Armed Forces Compensation Scheme.

In drawing up appeal rights under the Armed Forces Compensation Scheme, we sought to mirror those under the War Pension Scheme and to simplify them where it was sensible and practical to do so. I believe this aim was fully met in the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005, which came into force on 6 April 2005.

Regulation 3(1) of the 2005 appeal regulations provides that decisions under the Armed Forces Compensation Scheme, which relate either to entitlement to benefit or to the amount of benefit payable, may be appealed to the Pensions Appeal Tribunal. Regulation 3(1) is subject to the exceptions contained in Regulation 3(2) which provides that decisions to make an interim award or to suspend payment of an award do not carry a right of appeal.

It is now proposed to amend the 2005 appeal regulations. Regulation 3(1) is amended to make it clear that a decision on the making of a permanent award carries a right of appeal. Regulation 3(2) is amended to provide that a decision to make a temporary award does not carry a right of appeal.

I shall explain the circumstances in which a temporary award could be made. The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 contains a tariff that lists the conditions in which compensation may be awarded and specifies for each a tariff level, which determines the amount of compensation payable.

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However, in recognition of the fact that it may, on occasion, prove necessary to award compensation for a condition not listed on the tariff, Article 20 of the 2005 order gives the discretion to make a temporary award for a condition that is not listed on the tariff. Within the period of one year following the making of a temporary award, a decision will be taken on whether the tariff should be amended by adding the condition in question to it. If the tariff is amended, a permanent award is made. If the tariff is not amended, then no permanent award is made. I must stress that this power will be used rarely.

This draft instrument provides that temporary awards do not attract a right of appeal. Such awards are, by definition, temporary and full appeal rights will apply in relation to the decision to make or refuse a permanent award.

I assure the Committee that beneficiaries will not lose out by this. No amount that has been paid to an individual as a temporary award will be recoverable if no permanent award is made or if the permanent award is lower than the temporary award. Full appeal rights will, of course, apply in relation to the decision to make, or not make, a permanent award.

It was not possible to include this provision in the 2005 appeal regulations because the decision to include a discretion to make a temporary award within the Armed Forces Compensation Scheme was made at a relatively late stage and after the 2005 appeal regulations had already been laid.

The main ex-service organisations were briefed last year on the inclusion of temporary awards in the new scheme and of our intention not to extend appeal rights to such decisions. These groups did not dissent. Details of the proposal were also contained in a report to the Central Advisory Committee on War Pensions for its meeting on 7 December 2005.

I should now like to turn to the second draft statutory instrument: the Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006. This will introduce a new right of appeal against a decision under the War Pension Scheme to cancel an award.

The rules of the War Pension Scheme are contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order. The Pensions Appeal Tribunals (Additional Rights of Appeal) Regulations 2001 list the decisions under the Service Pensions Order which attract a right of appeal. The 2001 regulations refer to the Service Pensions Order 1983. That order has now been replaced by the consolidated Service Pensions Order 2006. This order has been restructured and renumbered and contains new provisions. One of the new provisions enables the Secretary of State to cancel an award where a pensioner has unreasonably failed to comply with a request to provide information or to attend a medical examination.

Cancellation can occur only if an award has already been suspended for 12 months. I should stress that the powers to suspend or cancel a war pension will be used only as a very last resort after the Veterans Agency and its welfare service have made every effort to obtain the pensioner’s co-operation. The Committee will nevertheless appreciate the need

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to ensure that awards remain well founded and to hold in reserve a power to suspend or cancel if necessary.

I reassure the Committee that the ex-service organisations with which the department discussed the matter fully agreed with the principle of suspension and cancellation. Those organisations, particularly the Royal British Legion, did however emphasise the need for appropriate rights of appeal. These regulations respond to that concern and amend the 2001 regulations by providing a right to appeal against the cancellation of an award. They also make it clear which decisions carry a right of appeal under the consolidated Service Pensions Order 2006. Copies of each of the draft instruments have been sent to the presidents of the three Pensions Appeal Tribunals jurisdictions, to the major ex-service organisations and the Council on Tribunals.

In conclusion, the first set of proposed regulations will enable the continuing successful implementation of the new Armed Forces Compensation Scheme. It will ensure a streamlined process that prevents the complexities of two appeals possibly arising within months on what is in essence the same issue in the same case. The second set responds to comments by the Royal British Legion that the power to cancel a war pension award should be subject to rights of appeal, and more generally makes it clear what decisions carry a right of appeal following consolidation of the Service Pensions Order. I assure the Committee that we believe that the statutory instruments are fully compliant with the European Convention on Human Rights. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006 [29th Report from the JointCommittee].—(Lord Drayson.)

5.45 pm

Lord Astor of Hever: I thank the Minister for explaining the regulations. They are essentially a tidying-up exercise and should have been dealt with at the time of the original legislation. It makes me worry how much secondary legislation we will receive after the Armed Forces Bill becomes an Act. My honourable friend Mark Harper raised our concerns over the compensation tariff for mental health, as opposed to physical injury, in some detail in the other place. I will not raise them again this afternoon but, other than those concerns, the regulations appear not to be controversial and to make perfect sense.

Lord Garden: I, too, thank the Minister for a clear exposition on the background to the instruments, which seem perfectly satisfactory. I confess to the noble Lord, Lord Astor of Hever, that if some of my amendments to the Armed Forces Bill are accepted we will have even more statutory instruments to look at.

I am generally content with these two instruments, but I shall raise one issue. In the short debate on26 June in the Standing Committee on Delegated

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Legislation in the other place, tariffs for mental health injuries were raised by a number of speakers. I declare an interest as a member of Combat Stress, and consulted to see whether it is as happy as it has been reported that various organisations are. I understand that it had a meeting with the Minister for Veterans, Tom Watson, on 21 June. The discussion was on concerns over whether the tariffs in this first statutory instrument are at appropriate levels for mental health injuries when compared with physical injuries. That is obviously not what we are discussing today. However, it would affect the sort of temporary awards put in, which we are dealing with. If the Minister cannot tell us today, perhaps he would write. Is there an intention to revisit the tariffs, with particular reference to whether the mental health injury tariffs are appropriate when compared with the physical injury tariffs?

Nevertheless, this order is about temporary awards, which are time limited to two years. Given that they will then go on to the permanent basis and the normal appeal procedure will happen, we are content to support the Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Amendment Regulations 2006.

The Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006 seems to be a helpful, additional right for people in what one hopes are very rare circumstances. The Royal British Legion has asked for it and the Ministry of Defence has responded, so we will support that as well.

Lord Drayson: I am grateful to noble Lords for their comments and support. I note what has been said on the Armed Forces Bill and the role of statutory regulations within it.

The noble Lord, Lord Garden, raised the representations that Combat Stress has made to my honourable friend the Under-Secretary of State. We want these tariffs to sensibly reflect the disability that may have been suffered by our veterans, whether physical or mental. I will pass on to my honourable friend the comments the noble Lord has made, to fully reflect that.

On Question, Motion agreed to.

Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): I beg to move the Motion standing in my name on the Order Paper.

Moved, That the Grand Committee do report to the House that it has considered the Pensions Appeal Tribunals (Additional Rights of Appeal) (Amendment) Regulations 2006.—(Lord Drayson.)

On Question, Motion agreed to.

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European Organization for Nuclear Research (Privileges and Immunities) Order 2006

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Triesman) rose to move, That the Grand Committee do report to the House that it has considered the European Organization for Nuclear Research (Privileges and Immunities) Order 2006.

The noble Lord said: This order was laid before the House on 25 May 2006 together with an explanatory memorandum, which is now required for all affirmative statutory instruments.

The draft order will confer legal capacities of a body corporate and privileges and immunities on the European Organization for Nuclear Research. It also confers privileges and immunities on representatives of state parties, the director-general and officials of the organisation. These privileges and immunities are conferred in accordance with the protocol on the privileges and immunities of the European Organization for Nuclear Research, which was signed on behalf of the United Kingdom on 18 March 2004.

The European Organization for Nuclear Research—known as CERN—is situated on the French-Swiss border near Geneva, and was founded by 12 member states that had ratified the convention for the establishment of a European Organization for Nuclear Research (Cm 928) on 29 September 1954. United Kingdom ratification was deposited on30 December 1953. CERN is the world’s leading particle physics centre, and provides an infrastructure for member states to engage in science projects that would not otherwise be viable.

CERN is funded by 20 member states, with the United Kingdom contributing £80 million, which amounts to 20 per cent of the total budget. The Particle Physics and Astronomy Research Council lead on policy at official level.

The order will allow the United Kingdom to comply with its international obligations in giving full effect to the protocol on the privileges and immunities of the European Organization for Nuclear Research.

I am satisfied that the order is compatible with the rights contained in the European Convention on Human Rights.

This order is important. I trust that it is non-controversial. I hope that it will receive the full support of Members of the Committee. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the European Organization for Nuclear Research (Privileges and Immunities) Order 2006.—(Lord Triesman.)

Lord Wallace of Saltaire: I note the active interest in this regulation by the Conservative Opposition, so I rise to represent, I suppose, both parties, and to raise a number of general questions.

I am a little puzzled. I know CERN relatively well: my daughter’s partner worked there for his PhD. As I understand it, it is only 52 years since CERN first

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began its activities. I am not entirely clear why it was necessary to add these additional powers after exactly 50 years.

When the matter was considered in the Eighth Standing Committee on Delegated Legislation in other place, my colleague Jeremy Browne said—as I would have wished to say myself—that,

The Minister will recall that I have raised this issue on previous occasions. I recall that on 28 November 2005, when we previously discussed these points, the Minister informed us that there had been a number of meetings of the EU Protocol Working Group, including a meeting of the EU Heads of Protocol, which had set in train under the UK presidency the first stages of a review on the future granting of immunities and privileges in the EU. I assume that that also covers broader European organisations such as CERN. What progress has been made with this? When might we expect a conclusion? What steps are the Government taking to ensure that the proliferation of European agencies does not simply add to the proliferation of tax-exempt and other forms of exempt bodies littered around an increasingly open social, economic and political space?

While I am being picky, why is there no clause here on geographical extent? On previous occasions we have had the usual idiotic clause on whether or not the provision applies to the Isle of Man, Jersey or Guernsey. On this occasion that does not even appear. Will the Minister please explain why that is?

Lord Triesman: I start with the general review of diplomatic privileges and immunities. I think that the noble Lord, Lord Wallace, knows that my own view is that a review, while it will unquestionably take time and will probably have to go into a lot of detail, is none the less worth while. I have maintained that view on a number of occasions and the noble Lord will be familiar with my reasons for doing so. There needs to be a very good explanation of why so many people enjoy special privileges of one kind or another, or we risk people perceiving different classes of individuals in the European Community, as widely defined. That will lead many to feel greater suspicion than they should normally have.

I am afraid that progress on that matter has been somewhat slow, but that is not to say that it is not taking place. It is slow partly because a significant number of organisations now need to be reviewed, and are being reviewed by a large number of nation states. Indeed, the number of nation states in the European Union will increase again in the very near future. This is probably the first occasion on which many of those states have applied themselves to these questions. Therefore, I am afraid that, if we want to be as inclusive as we desire, the process will take time. That is a pity but I do not want to overstress the matter because the intention is to complete a review, and that will happen. Even if I cannot give a terminating date, there is a desire to see this work completed. I intend to let everyone know the relevant date as soon as I can.

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As regards geographical extent, the order is being reviewed by the JCSI and a geographical clause has been deemed not to be necessary. I do not have access to the thinking behind that, but I will write to the noble Lord with the reason that the committee has given for that. I have no doubt that it will be substantive, because the committee will have thought about the matter in appropriate detail.

The more substantive point concerns why the order is now required. The United Kingdom signed the protocol on the privileges and immunities of the European Organisation for Nuclear Research on 18 March 2004. That protocol legally obliged the United Kingdom to confer legal capacity, privileges and immunities on CERN. Like the noble Lord, I also know the organisation well because of its level of celebrity and importance in academic life generally.

The intention is to confer privileges and immunities on specific categories of individuals connected with the organisation, an undertaking we made in 2004 despite the fact that CERN goes back very much further. This tidies up the process. Apart from conferring the usual privileges and immunities on the employees of CERN, the protocol will also allow CERN to buy high-cost scientific equipment from different countries without incurring the usual import and export duties, so it also tidies up that matter. I hope that that is the explanation sought by the noble Lord. As I have said, I will make sure that the thinking of the JCSI on the other particular detail is conveyed to him. I commend the order to the House.

On Question, Motion agreed to.

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