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Lord Freyberg: My Lords, I should like to go back to one of the legacy issues mentioned by my noble and gallant friend Lord Craig of Radley, which currently is not in the Bill. But it is my belief that it should be. It is the result of a loophole which began to be closed more than 25 years ago, but which has subsequently left a very vulnerable group in its wake; that is, service widows who receive some, or in many cases no, pension regardless of how long their husbands served. I refer to the service widows of post-retirement marriages.

The women who receive no pension at all are widows who married their husbands after they retired from the services and whose retirement occurred prior to 6 April 1978. Servicemen who served through 6 April 1978 and married post-retirement are able to hand on only that part of their pension earned after that date. Servicemen who served solely after 6 April 1978 and married post-retirement are able to hand the usual 50 per cent of their pension on to their spouses. I am of course aware that there is a far smaller number of widowers in these groups, and they need to be included in the whole argument.

It is particularly urgent for such an inadequacy in pension provision to be dealt with here and now because most of those affected are old, infirm and living in unfairly straitened conditions. It will be too late to help these many women and a few men once they have died, and inevitably their numbers are dwindling. Subsequent governments have rightly ensured that future generations will not be afflicted by the same problem, although I would add that this anomaly will not be completely eradicated until 2015. The worst affected are of course the widows of those who served pre-1978. We should therefore take some responsibility for those who were penalised through no fault of their own and actually discriminated against because the scheme implemented in the past made no allowances for the uniqueness of their husbands' employment.

This Government certainly recognise that our Armed Forces are special in the circumstances in which they work. They acknowledge that these should affect future pension provision. Yet when it comes to looking at legacy issues, the Government mysteriously choose to ignore the uniqueness of service conditions and to assume that lumping the armed services together with other public services was equitable at the time; for example, when the provision for pensions for post-retirement marriages was laid down. Yet that was not the case at all.

Yes, the Social Security Act 1975 did lead to an improvement in pension provision for all public service workers. But even at the time the Armed Forces were given a raw deal because of their enforced early retirement, which made a post-retirement marriage so much more likely than for other professions in the Act. While the retirement age for the vast majority of those in the public service is 65 for men and was until recently 60 for women, the majority of service people have to retire at or below the age of 40, while even for
 
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officers the normal retirement age is 55. However, fewer than 15 per cent serve to that age. These and many other factors such as long overseas postings, which reduced the likelihood of meeting a suitable partner, have applied and apply only to the Armed Forces. It is only reasonable for the Government to recognise that these differences were inadequately addressed. Our Armed Forces deserve nothing less.

One of the areas that is a mystery to those of us who have studied this problem is how much it would cost to give provision to the widows stranded with no pension. Government Ministers in 2002 and 2004 have stated that it would cost £50 million to provide for widows of post-retirement marriages, and between £300 and £500 million to extend the post-retirement marriage concession to survivors of members of all public service occupational schemes.

As I have explained, the conditions that make pensions for armed service post-retirement marriages so urgent do not exist outside the armed services, so it should be possible to ring-fence the provision. Moreover, how accurate is the estimate of £50 million? In a Written Answer in another place on 22 March 2000, the Minister of State for the Armed Forces at the time, Mr John Spellar, informed Gordon Marsden MP that:

Is it not possible that the Government have overestimated the cost?

Until now, the MoD has refused even to contemplate looking at the plight of those affected. People who write in to express their concerns are sent virtually identical letters to those sent out in 1981. This week, as the noble Lord, Lord Morris of Manchester, my noble friend Lady Strange and the noble Baroness, Lady Dean, have already mentioned, we have been honouring the bravery of those men who attacked the beaches of Normandy 60 years ago to secure this country's continued freedom and democracy. And yet it is quite ironic that it is the post-retirement widows of such men who are more affected by this anomaly than any other.

In conclusion, I should like to reiterate my conviction that the 1978 legislation was particularly unsatisfactory for those serving in the Armed Forces. If the Armed Forces' service conditions were the same as those for other public services, I would respect the Government's position. However, they are not and never have been. That is why the Government should act now to introduce a modicum of support to those whose spouses depended on the Government for equitable treatment, which has so far been denied.

Lord Redesdale: My Lords, this has been an excellent Second Reading debate, which rarely happens in this House. I was told when I joined the House that Second Reading was the time when you
 
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flagged up the issues over which you were going to give the Government a hard time. Your Lordships have certainly put up many flags today.

We welcome the Bill and the fact that the Minister will move that it should be dealt with in Grand Committee at the next stage. We have no difficulty with that; we believe that it will be a good forum for the Bill. However, given the number of issues that have been raised, I should warn the Government that although we cannot vote at the next stage unless the Government take a slightly more conciliatory attitude than they did in the Commons and some movement is achieved, the Bill may have a much stormier passage in its later stages.

Like almost all noble Lords and almost everyone in the country, I am not an expert on pensions. I do as much as I can to avoid reading about pensions or any issues related to them. However, one aspect of the Bill caused me immediate concern when I read it. As with most Bills, I turned to the financial effects section in the Explanatory Notes, which shows who will be paying the bill, and noticed the strange and strangely worrying line that,

This causes me to worry because the Minister, having read through the many amendments brought forward in another place, referred to the benefits that the Bill will bring about. I know that there are alterations in the very nature of the scheme but, as with everything, if there are winners there are bound to be some losers. We understand that.

The noble Baroness, Lady Dean, said that in comparison to other forms of pension schemes the one in the Bill could be seen as far better than those in the private sector. I agree with her. One of the reasons we welcome the Bill is that it will give a degree of confidence to those in the Armed Forces. However, it also perhaps shows up the state of pensions outside such schemes. Indeed, the noble Baroness, Lady Strange, said that some widows might be better off under this scheme.

However, a great number of problems have been raised, many to do with the very nature of this unusual pension scheme. The early retirement date of soldiers is a factor in the job. One of the extreme problems that is taking effect within the services themselves is that whereas in the past if you served your term with the Army you were almost guaranteed a post outside of comparable pay and status, this now is often not the case. I have spoken to a number of army officers and non-commissioned officers who are considering leaving the Army early because their skills within the Army are non-transferable. Therefore, having considered their pension and job prospects, they have decided to leave the Army far earlier than they would want to in order to enter the job market. This is affecting some of the best talents within the Army.

Army pensions also have a different status because of the nature of the job, and that is being looked at. This is one of the few jobs in which the participants put themselves in the way of danger as part of their job.
 
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I shall not go into great depth into each of the issues raised because I am sure we will be debating them for many an hour in Committee, but I plan to touch on them. The noble Lord, Lord Morris of Manchester, raised the issue of burden of proof, which I find iniquitous. The noble Lord, Lord Morris, has been a great advocate and champion of the Royal British Legion, and we should all recognise the work that the legion has undertaken.

One of the issues concerning burden of proof that the noble Lord did not raise is of great concern to me, with a sceptical eye from the outside. Burden of proof could be seen as a form of means-testing. There would be cost implications for widows, who have to deal with so many issues in a time of stress, if they had to establish the burden of proof. I worry about that, because it might deter many from embarking on claims.

The alternative is for the Royal British Legion to take up those cases; however, there will be great financial strain on the Royal British Legion if the number of cases increases and it has to take on the burden of proof. The situation has changed from that which applied earlier, because the MoD used to have to bear the costs of the burden of proof system.

Non-attributable pensions have been mentioned. Another issue which has exercised many is that of post-retirement marriages. That is an unfortunate situation, as many noble Lords indicated. It was particularly well put by the noble Baroness, Lady Strange. We tend to look at the technical details, but the MoD will save money only if the widows do not remarry. It is almost a form of social engineering. I know that it is a trend for many people in later life not to remarry but simply enter into relationships, but for those who find it important—and I think marriage is important—to be denied that possibility because of financial consequences seems particularly unfortunate.

The Minister raised the rights of same-sex partners, which shows that the scheme is moving forward. That is a welcome contribution, considering the many debates we have had over the years about the nature of relationships within the Armed Forces. I believe that the relevant provision will be put in place by the Civil Partnership Bill, and we welcome that.

We would like to look at full career pensions. I very much hope that at a later stage we can explore whether the situation can be improved.

As with many of the Bills that come before us, many of the provisions will be set up by secondary legislation. One issue that I hope will be strengthened on the face of the Bill, although I know that it is affected by secondary legislation, is the provision of medical expenses from one place to the other. At present, if the NHS does not provide certain medical expenses in one area, they are not met by the MoD. It is seen as an unfortunate aspect of the NHS.

The noble Earl, Lord Attlee, referred to the question of secondary legislation and said that we should move to the affirmative rather than the negative resolution procedure. I cannot count the number of debates I have had over whether secondary legislation should be
 
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affirmative or negative. I remember a particular debate when the Law Lords got involved, when I moved the amendment. The situation was so difficult that I lost the legal aspects of the argument and found it difficult to sum up. However, it is important for noble Lords to consider carefully whether secondary legislation should be allowed to do all the work or whether certain aspects should be mentioned in the Bill itself.

I mention that matter because of recent events. On Tuesday night I called a Division in this House on a Motion of regret on the Licensing Bill. It was a shot in the dark—it was not an important Division, as all noble Lords who were there knew. But it highlighted the fact that it is almost impossible to alter secondary legislation. The noble Lord, Lord McIntosh, when summing up certain aspects of secondary legislation said, "Ah well, it is unfortunate that because it's not in primary legislation, we cannot deal with it in secondary legislation". I give fair warning that we shall push for certain aspects that would be considered areas of secondary legislation to be mentioned in the Bill itself.

Finally, I turn to the issue of deterioration of disabilities. The MoD made some conciliatory noises at an earlier stage that it would reconsider the acceptance of ongoing review rather than factoring average or standard deterioration. That is an important point, especially with the ongoing nature of medical disabilities. I know that amputations have very different effects on different cases and to call them average would be almost impossible. In addition, although the Minister will say that the case of Gulf War syndrome is not applicable because the MoD does not accept it, if it were ever accepted in future it would have to be reviewed on an ongoing basis.

I end with a question, which was highlighted by the noble Baroness, Lady Dean. It is one of those questions to which I did not know the answer; in debate, one should pick up those points and ask the Minister. Paragraph 17 of the Explanatory Notes says:

The Minister will say that because there are no plans at present he cannot comment but, if such a scheme were brought in, could it be done through secondary legislation or would it need primary legislation?

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