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The Earl of Onslow: My Lords, is that not called moral blackmail?

Lord Bach: No, my Lords, it is not called moral blackmail, or a threat or anything like that. It is a fact of life and I have no doubt that Ministers from all governments, including that which the noble Earl was happy to support, have on occasions had to make speeches of this kind, saying to the House, when it was in a particular mood and had a particular view, that it should think very carefully before doing something that may have greater consequences than just the issue upon which it is voting. I hope that the noble Earl knows me better than to think that I would try to blackmail the House, either morally or in any other way.

The Earl of Onslow: My Lords, I was not accusing the monkey of that; I was accusing the organ grinder.

Lord Bach: My Lords, I am not sure I understand that, but I believe that is an even bigger insult. In fact, I am sure it is an even bigger insult.

Lord Hurd of Westwell: My Lords, the Minister used the phrase "a fact of life". It is not a fact of life. It is a fact of government policy and Parliament exists to control and, if necessary, to change policy.
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4.15 p.m.

Lord Bach: My Lords, the noble Lord is right. It is perhaps a fact of political life. Perhaps we should settle for that phrase. I do not expect to convince or to convert noble Lords to my point of view on the basis of what I have said so far.

Turning to the issue of the burden of proof, since Grand Committee we have looked again at our position and, frankly, in a spirit of compromise we have offered the Royal British Legion a revised statement of our position which I had hoped would go some way to meeting its concerns that our proposals did not represent a fair balance of responsibilities between the claimant and the department. The Royal British Legion has now responded and, disappointingly, does not appear willing to change its position or to accept it as a basis for negotiation. I realise that the revised statement falls short of its full aspiration and, of course, I respect the fact that it must make its own judgment, as must noble Lords, on such key issues.

Lord Morris of Manchester: My Lords, will my noble friend say what costing is attached to the proposals—as he calls them—that were made to the Royal British Legion? What would have been their effect on the figure of £200 million?

Lord Bach: My Lords, if the noble Lord will give me a little space, in due course I shall deal with exactly that point in my speech. First, I want to take this opportunity to explain to noble Lords what we now propose. At the risk of giving a history lesson, I shall also show why the history of the burden of proof in the war pension scheme, while it has its place in that scheme, is not appropriate for a new scheme to be introduced in 2005.

Awards in both the war pension scheme and the new compensation scheme are made for claimed injuries and illnesses with a causal link to service. Decision making in both schemes involves consideration of the service and the medical facts of the case. Where an illness is claimed, that consideration is undertaken in light of contemporary medical understanding of its causes.

Critics of our proposals, not least my noble friend Lord Morris, have compared the new scheme with only the current war pension scheme. That is not a reasonable point of view. I remind noble Lords that a large part of the benefits paid under the current arrangements for death or injury due to service come from the Armed Forces pension scheme, which uses the same standard of proof, the same burden of proof, as we have proposed for the new scheme. In other respects the new scheme is more favourable to the claimant than the existing Armed Forces pension scheme; notably on time limits, where only conditions leading to medical discharge are currently eligible.

We have sought to replace current arrangements with something that ensures a fair outcome. That has resulted in arrangements that we believe give a genuine balance between the very wide gateway to eligibility of the war pension scheme—we believe too wide—and the unreasonably restrictive rule of the current Armed Forces pension scheme. Frankly, simply to standardise,
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as my noble friend did, on the war pension scheme and to ignore the rules under which we currently pay Armed Forces pension scheme benefits is not reasonable, nor would it be affordable. Critics of our proposals have to face that fact. They must recognise that the war pension scheme is only one part of the current arrangements and, for many of those seeking compensation, it is the smaller part of what they receive.

The proposed scheme is a new scheme which will differ from the war pension scheme in respect of the burden of proof. As noble Lords have heard, under the war pension scheme, the burden of proof for claims made within seven years of termination of service rests on the Secretary of State to establish beyond reasonable doubt that the injury, illness or death is not due to service.

Under the new scheme the standard of proof will be "balance of probabilities". Since Grand Committee, we have, as I have said, looked again at our definition of the burden of proof and have proposed to the Royal British Legion a revised statement of our approach. Under this approach, the merits of the claim will be decided on the basis of the evidence from all parties, including both the claimant and the department. This evidence will be weighed on an even balance rather than by giving extra weight to the evidence of one side, based on the position of the party putting it forward, whether that happens to be the claimant or the department. If the weight of evidence shows on balance of probabilities that the claim is substantiated, then of course it will succeed.

This new approach does not place the whole of the evidential burden on the claimant. The scheme rules will provide that the Secretary of State or, at appeal, the Pensions Appeal Tribunal will decide whether, on the basis of all the relevant evidence, it is more likely than not that the injury, illness or death is due to service. That evidence will include any supporting evidence provided by the claimant. It will also include the claimant's service and medical records and any additional evidence obtained by the Secretary of State.

We recognise that it would be unreasonable to ask the claimant to obtain evidence relating to his claim held in his official service records. The scheme rules will therefore impose a duty on the Secretary of State to obtain and make available to the claimant such evidence.

Any decision taken by the Secretary of State will be subject to an appeal to the PAT, which in turn will have regard to the entire body of evidence, whether provided by claimant or Secretary of State. This will place a responsibility on the Secretary of State to provide a credible response to any evidence submitted by the claimant.

It remains our strongly held view that a "beyond reasonable doubt" standard of proof is not appropriate to a no-fault scheme and is out of line with current good practice where evidence-based decisions are the norm. We are confident that the revised statement of approach on this issue will ensure a fair balance of responsibilities and our work has shown
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that no claim would fail where there was reasonable evidence that injury, ill-health or death was due to service.

Perhaps I may briefly talk about compensation culture. I do so for a reason—gently perhaps to chide the noble Lord, Lord Astor of Hever, who has made a telling speech in the debate. I have to say that I am somewhat surprised that there is such strong support from his Benches for this amendment as expressed so far—we of course have not been through the Lobby yet—given his own party's strong position with regard to the growing compensation culture. Frankly, it seems inconsistent to condemn the growing trend towards seeking compensation at every opportunity with one breath and then with the other to support the maintenance of a balance of a burden and standard of proof which would result in awards even though—and I shall be frank with the House—the likelihood is that service was not the cause of illness or injury.

Indeed, the noble Lord's colleagues in another place could not have made their position clearer, although they came to the same view as the noble Lord, Lord Astor—I must make absolutely clear that he is consistent with what was said. They made their views clear in their helpful contributions. For example, Mr Gerald Howarth said that we should get the balance right and should ensure that we simply do not pay out to undeserving people.

The shadow Secretary of State for Defence, the honourable Nicholas Soames, made the position clear at Second Reading. He said:

He made the point, as he was entitled to, that:

and I ask noble Lords to bear this in mind—

I give way.

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