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Lord Avebury: My Lords, while acknowledging that the United Kingdom has done more than any other member of NATO in making the security improvements that are necessary for a free and fair election, does the Minister really consider that, bearing in mind that the international NGOs have withdrawn almost entirely to Kabul with a few in Kandahar, the conditions exist where people can go to the polling stations confident that they will be safe? Does the
 
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Minister acknowledge that President Karzai has asked for many more troops on the ground than NATO has provided?

Lord Bach: My Lords, as the noble Lord knows, President Karzai made a public plea for additional forces at the Istanbul summit in June this year. The response has been two extra NATO battalions, one Spanish, one Italian, available for operations in and around Mazar-i-Sharif and Konduz respectively. A third US battalion will be held at high readiness in Europe for deployment if necessary. I have already mentioned that the Dutch have aircraft there including six F16s and a support tanker to mount air presence patrols. Our Harriers will also be able to assist. Individual PRTs have been temporarily reinforced. Coalition security assistance is less clear but will certainly include additional air sorties. Everyone knows that the elections will be difficult, but a huge amount of effort has gone into registration, a great deal of it successful.

Armed Forces (Pensions and Compensation) Bill

Report received.

Clause 1 [Pension and compensation schemes: armed and reserve forces]:

Lord Morris of Manchester moved Amendment No. 1:


"( ) 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: My Lords, I beg to move Amendment No. 1. In doing so, I will speak also to Amendment No. 15 which, like my first amendment, concerns the MoD's hugely important intention to shift the burden of doubt for benefits for service-related incapacity and bereavement away from the Secretary of State to the claimant. My amendment and the new clause have the backing of noble Lords in all parts of the House. They include three former Chiefs of the Defence Staff.

I have two interests to declare: as honorary parliamentary adviser over many years to the Royal British Legion and vice-president of the War Widows' Association. I speak also as the son of a war widow—orphaned when I was seven—and from personal experience of active service with Middle East Land Forces when Israel was still Palestine and British troops stood between rival terrorist groups that had little to learn from Al'Qaeda.

It well befits the importance of the issue addressed by my amendments that they are being debated first today. For the issue is one of profound significance for service personnel, as it is too for ex-service men and
 
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women, now in broken health, who were prepared to lay down their lives in our service, and the bereaved families of those who did so.

Nothing was more strikingly clear at Second Reading—and again in Committee—than the near consensual support for the purpose of this amendment and new clause. Nor could it have been made clearer that the ex-service community was at one in its support. Indeed, in this my 40th year in Parliament, I cannot readily recall that community ever being so totally united on any legislative issue as it is now in opposing the MoD's plan to switch the burden of proof from the Secretary of State to the claimant.

For 60 years that burden has rested not on the claimant to show that death, illness or injury was due to service, but firmly on the Secretary of State to disprove the case. All the claimant is required to do is raise a "reasonable doubt" for the claim to succeed. That this is the present war pensions scheme's distinguishing feature was made pikestaff plain by my noble friend when replying on 22 January to my Starred Question about the case of the late Major Ian Hill, following the coroner's landmark finding at the inquest into his death. "I can say", my noble friend told the House,

This most important safeguard in the existing war pensions scheme was the core of my noble friend's justification of the handling of Major Hill's case and clearly, in his view, the scheme's crowning virtue.

Yet now the MoD plans to abandon that safeguard: to dump "reasonable doubt" and substitute a "balance of probabilities" as the test of entitlement, so relieving itself of the onus of proof.

The House of Commons Defence Committee describes that fundamental change of policy thus:

The Royal British Legion has documented the very serious effects of that for incapacitated service personnel and widows alike. Taken together with the proposal to reduce to five years the time-limit for making a claim—which the MoD also now proposes—it will cut the number of successful claims by 60 per cent.

That finding was based on scrupulous analysis of the vast range of casework undertaken by the Legion, acting for claimants in 93 per cent of all represented appeals at tribunals for war pensions, and totalling some 4,000 cases in the past year alone. Most came to the Legion in respect of claims rejected by the Veterans Agency.
 
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The Government's response was to cast doubt on the Legion's analysis, while doing nothing whatever to produce one of their own. Attempting to allay criticism of their negative stance, they told the House of Commons:

That was not true. They did not join in discussion with the Legion. Even if they had, it was up to them to produce a valid statistical analysis of their own, based on data readily available to Ministers.

Even now, as was made plain to the Deputy Chief of the Defence Staff (Personnel) in a letter Brigadier Ian Townsend, secretary-general of the Legion, sent to him on 6 September, the MoD appears prepared to correspond and talk only about new forms of words for implementing and facilitating a different burden and standard of proof. It has not been prepared to consult about the clear commitment to protect the basic safeguard—now vouchsafed by a standard of proof based on "reasonable doubt"—on which the ex-service community insists.

The Legion's legal adviser has told my noble friend that there has been no meaningful discussion whatever. Official pretence that a dialogue has been maintained with the Legion is just not so and is lucidly disposed of in Brigadier Townsend's letter.

Meanwhile, the MoD still wastes time bogusly claiming that a "balance of probabilities" test is more modern and fairer than "reasonable doubt". In fact, as noble Lords pointed out at Second Reading, that test is as "old as the hills". It was indeed replaced, for good reason, by "reasonable doubt" when that much newer test was brought into the war pensions scheme in 1943. So what the Government now propose is to turn the clock back 60 years.

The "reasonable doubt" test acknowledges that service in the Armed Forces cannot be compared with other occupations. It is unique, involving unlimited liability to defend the interests of this country, and the present test recognises that uniqueness.

The scale of the difference between service in the Armed Forces and other employment, as the House of Commons Defence Committee has said, is that:

Service personnel are sent to the four corners of the globe at a moment's notice. They have no conditions of employment. The environment in which they serve is not a workplace governed by the legislation that safeguards civilian workers. They have no trade unions, as have civil servants and the fire service, nor a federation as do the police. They have no rights to take action on pay, working conditions or anything else. Indeed, when civilian public sector workers exercise their industrial right to strike, the Armed Forces can be ordered to do their work.
 
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So much for the continuing insistence of Ministers that ending the safeguard of "reasonable doubt" is justified because no clear distinction can be drawn between service in the Armed Forces and public sector civilian employment.

Since Committee, my noble friend has maintained his plea of "lack of resources" for the MoD's failure to produce its own statistical analysis of the effect of dumping "reasonable doubt" on the success rate of pension claims. He wrote on 22 July to the noble and gallant Lord, Lord Bramall—who had left no one in any doubt of his disquiet with that plea—to say that,

without offering the merest guidance on the MoD's estimate of the cost of making one.

One unintended recipient of my noble friend's letter was the Royal British Legion, and I quote its reaction:

In a response to that letter, sent to noble Lords by Colonel Terry English, the Legion revealed that in fact the MoD had, after all, made an estimate of the financial effect of the change of policy on burden of proof, in very precise terms, at a meeting with it on 15 July—seven days before my noble friend's letter to the noble and gallant Lord.

Recalling the MoD's statement that the policy change was not about saving money, Colonel English writes:

He continues:

The disclosure of that figure—which has been confirmed to me both by Peter Knight, the Legion's legal adviser and its pensions officer, Tom House, who was also at the meeting on 15 July—has another deeply serious implication. It is that the MoD, while rejecting calls for it to undertake a statistical analysis of the effect of its proposal on grounds of cost, must in truth already have done one. Otherwise how could they have arrived at the figure of £200 million? Why could that figure not first have been given to this House when the subject of costs was raised at length by the noble and gallant Lords, Lord Bramall and Lord Craig, the noble Lord, Lord Redesdale, and others in Committee? And when was my noble friend first aware of the figure of £200 million?

It is the revelation of that figure of £200 million that gave the lie to any claim of meaningful consultation with the Legion on the department's policy on burden and standard of proof. After all, how can it be claimed that the department was consulting on the issue when it had already made a studiedly precise calculation of the outcome? Who wants to be "consulted" about a fait accompli? And had MoD officials any authority in talking to the Legion to alter the figure of £200 million?
 
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Certainly none of us here can any longer be surprised by the depth of dismay felt in the ex-service community about official reaction to their concern over dumping the safeguard of "reasonable doubt" in deciding service-related incapacity and bereavement claims. Nor can there be any doubt where public opinion stands on a policy that prioritises saving on incapacitated ex-service men and women and bereaved families.

I conclude with a brief message from a noble Lord who cannot be here for this debate. It comes from my noble friend Lord Callaghan who, having been glad to hear of my amendment and new clause, wrote to say he would not support any change that could affect adversely the present arrangements about pensions in the Armed Forces. His short and moving letter is as eloquent a message of support as one could ever wish for in striving to keep faith with brave men and women who serve this country so well and, by so doing, ensure that right is done. I beg to move.


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