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Lord Morris of Manchester: My Lords, I am grateful to my noble friend am delighted to follow the noble and gallant Lord, Lord Craig, whose wise counsel—as I know my noble friend agrees—is always most helpful in debates on the needs of service and ex-service men and women alike.
The Bill is a measure of profound significance for our Armed Forces, as it is, too, for the ex-service organisations and those who work to make life better for war widows. It promises welcome improvements in pensions for service men and women and improved death-in-service benefits for widows/widowers of the future. Cover will be provided for in-service accidents which strangely—one could also say scandalously—is currently available to service personnel only if they take out private insurance. That, too, is most welcome. But there are intended changes—more especially one fundamentally to change the war pensions scheme—
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that cause the ex-service community deep concern. Again, there is regret that this opportunity to do more to help older war widows is not being taken.
I have two interests to declare: first, as honorary parliamentary adviser over many years to The Royal British Legion—the authentic voice of the ex-service community—and, secondly, as vice-president of the War Widows' Association. I speak also as the son of a war widow and from personal experience of active service with Middle East Land Forces when Israel was still Palestine and our role was to stand between rival terrorist groups that would have had very little to learn from Al'Qaeda.
My friend, the noble Baroness, Lady Strange, president of the War Widow' Association, has been fighting the good fight for war widows for as long as I can remember. I much look forward to her speech in this debate and I honour her today, as I do the noble Lord, Lord Freyberg, and, of course, my noble friend Lady Dean, for the constancy of their commitment to war widows and the ex-service community.
While acknowledging all the difficulties, as a former Minister, I find it sad that the 60th anniversary of D-day could not have been marked by the announcement of some further new help for older war widows. Most of them lost their husbands during or due to the Second World War. Their average age is now over 80 and the attrition of age-related illnesses and disabling conditions reduces their number year by year. In consequence, the cost to the Exchequer of war widows' pensions falls year by year. So more could now be done to help them without increasing the totality of public spending. Was that not justification enough for making last weekend's commemoration in Normandy—and I warmly congratulate the Government on their part in its success—a moment not only for reflection and admiration for those who were prepared to lay down their lives for human freedom but of practical concern for the increasingly needful loved ones of those who did so? We all owe them an immense debt of honour.
Of course, from next April, all service personnel and those widowed after then will be affected by this Bill's hugely important intention to change the rule relating to burden of proof for awards under the war pensions scheme, the principal avenue for compensation for death, illness or injury caused or made worse by service in the Armed Forces. As of now, the scheme's distinguishing feature is that burden of proof rests not on the claimant to show that death, illness or injury was due to service but on the MoD to disprove the claim. Seven years after the death—or the condition being identified—the onus of proof moves to the claimant, but an award may still be made provided "reasonable doubt" would justify the claim. There is no time limit for claiming.
That the placing of burden of proof on the MoD is the distinguishing feature of the war pensions scheme was set in bold relief by my noble friend Lord Bach—whose personal commitment to helping war pensioners wherever and whenever he can is undoubted—when he replied to my Starred Question
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on 22 January about the case of the late Major Ian Hill. As a lawyer, my noble friend is all too familiar with the much sterner "balance of probabilities" standard of proof used in courts, and he took pains to emphasise the crucially important difference by pointing out that Major Hill's widow did not have to prove that his death was due to service but—and I stress his words—only to a reasonable doubt.
"that war widows' pensions are paid when death is deemed to be due to service, and that the widow has to raise only a reasonable doubt for claims to succeed".—[Official Report, 22/1/04; col. 1138.]
Yet the MoD now intends to abandon that safeguard: to dump "reasonable doubt" as the standard of proof and substitute "balance of probabilities", thus transferring the onus of proof to the claimant.
Making the effect of this pikestaff plain, the House of Commons Defence Committee has noted that,
"under the existing scheme, it is for the Secretary of State to show beyond reasonable doubt that Service has not played a part in causing or worsening the condition for which a claim is made. Under the new proposals, the standard of proof is changed to a "balance of probabilities" with the onus of proof on the claimant to make the case".
The Royal British Legion estimates that this change will mean a cut of 60 per cent in claims for service after 2005 that would succeed under present rules. The estimate is based on the Legion's involvement in a vast range of case work. Last year alone, over 1,300 initial cases came its way, and the Legion took scrupulous care in making its estimate.
The Government's reaction has been to cast doubt on the estimate while doing nothing whatever to produce one of their own. Attempting to allay criticism of this negative stance, they told the House of Commons:
That is not true. They have not joined in discussion with the Legion. And even if they had, it was up to 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 particularising their criticism.
The Government did attempt a statistical comparison by looking at the Industrial Injuries and Disablement Scheme and the Criminal Injuries Compensation Scheme, but it was a flop because the two schemes and the standards of proof are predicated on entirely different bases. In fact, the Government's own consultants dismissed it as invalid.
Again, the MoD claims that the "balance of probabilities" standard of proof is more modern and fairer; but how much fairer would it have been to the late Ian Hill's widow? As my noble friend knows well, there have always been two standards of proof, one applicable to civil law and the other to criminal law. This is not a modern invention.
The Armed Forces accept unlimited liability in defending the interests of this country. Their one safeguard with regard to compensation if they become
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incapacitated due to their service has been the War Pensions Scheme with its standard of proof strongly based on "reasonable doubt". Removing that safeguard will leave service men and women in an extremely vulnerable and totally unacceptable position.
It must be a cause for very serious concern that the Government now want so fundamentally to change the War Pensions Scheme without, as we have seen, providing any data as to its likely effect, despite being challenged to do so by the House of Commons Defence Committee and the Royal British Legion. It is a change of policy that alters the recognition, over more than 60 years, that there are "specific circumstances" and special factors which apply to our Armed Forces. The Government now seek to place them on the same footing as teachers and other public sector workers, those hurt in street brawls or workers injured in industry, whose employers have compulsory employers' liability insurance. That is demonstrably wrong.
I heard recently of an employee of a British contractor in Iraq earning £5,000 a week who was attacked while working and said that he should have been protected by British troops. It would be interesting to learn how his pension arrangements compare with what is now proposed for our troops deployed there, and the widows and other dependants of those who have been killed in Iraq.
The essential difference between the Armed Forces and almost all other employment, as the House of Commons Defence Committee said in considering this issue,
"is that Armed Forces personnel can be asked to put themselves in harm's way, indeed to die for their country, which makes compensation for injury an entirely different matter for them than for civilians . . .
"There can be no proper basis for comparing the Armed Forces Scheme . . . with schemes for other public sector workers [civil servants, teachers, nurses and the like] who are simply not exposed to anything remotely similar to the dangers and uncertainties of service factors".
That is the ex-service community's case for insisting that the existing "reasonable doubt" standard of proof is retained.
I most strongly urge Ministers now very urgently and meaningfully to consult with the Royal British Legion to end the present impasse. Meanwhile, let us all recognise that for parliamentarians there is no more compelling duty than that of acting justly to those who are prepared to lay down their lives in the service of this country and the dependants of those who do so.
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