New Clause 3 — Burden of Proof

Orders of the Day — Armed Forces (Pensions and Compensation) Bill – in the House of Commons at 3:00 pm on 6th May 2004.

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'The power of the Secretary of State to modify an Armed Forces Pension Scheme may not on any occasion be exercised in any manner which would or might alter the onus on any person of proof as provided for by Article 4(2) or the benefit of reasonable doubt as provided for by Article 5(4) of the Naval, Military and Air Forces etc.(Disablement and Death) Service Pension Order 1983.'.—[Mr. Gerald Howarth.]

Brought up, and read the First time.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

I beg to move, That the clause be read a Second time.

New clause 2 dealt with one of the key new issues in our proceedings and it was appropriate to debate it at some length. Other provisions were dealt with in Committee and the House should have an opportunity to debate them again, but I hope that we can make rather swifter progress than on new clause 2.

New clause 3 provides for the existing burden of proof in compensation claims to be retained. The Government are seeking to change the existing rules concerning the onus and burden of proof. As matters have stood for the last 60 years, there is a compelling presumption in favour of a claimant whose appeal is brought within seven years of leaving the service. That is for a very good reason. The factors to which claimants are exposed in service life are in many ways different from those in civilian life. It is another example of many where it has been demonstrated that our armed services are different from the rest of society.

We believe that it is wrong for the Government to say that the proposals use the modern "balance of probabilities" standard of proof. There is nothing modern about this. For 60 years, Parliament has recognised in respect of service personnel that it is appropriate to have different standards of proof, just as there is a difference between civil and criminal standards of proof. To suggest that it is not unfair discrimination against service personnel is mischievous. The truth is that, by changing the standard of proof, a valuable right that recognises the particular factors in service life is being withdrawn.

The Royal British Legion, which represents 93 per cent. of all claimants, has analysed a representative sample of cases and demonstrated that, if the standard of proof were altered, 57 per cent. of all cases would not be eligible for a war pension and that a further 62 per cent. would fail on appeal. All the Minister would say in Committee was that he did not agree with the methodology of the Royal British Legion, but I remind him that that organisation, at the expense of voluntarily raised funds, represents people who are taking on their former employer to try to get a better deal for disabilities that they believe are attributable to their work in the service of the Crown.

The Select Committee said:

"Because of the special risks that Armed Forces personnel are required to run, and because they are likely to be involved in situations of great uncertainty, with uncertain effects on their health, we continue to believe that the onus should remain on the Government to prove that service was not responsible for causing or worsening a condition for which a compensation claim is made."

The Select Committee even sought to help the Government by attempting to meet them halfway. It proposed a double test under which a claim would fail either if

"the claimant is unable to prove on the balance of probabilities that a condition was due to service" or if

"the MoD is able to prove on the same standard of proof that the condition is not due to service."

Ministers did not even consider that. All the Minister did in Committee was to ask me whether I was backing the Royal British Legion or the Select Committee. I explained that we were backing the Royal British Legion's argument, but it was, of course, the same as the Select Committee's argument. As I said, the Minister failed to recognise that the Select Committee sought to meet him halfway by providing a compromise solution, and it was inconsiderately brushed aside.

Is it the Government's intention to remove a standard of proof that has stood the test of time and recognises the special factors of service life in order to deprive such a large body of former service personnel an entitlement to a war pension? We do not believe that the proposed new tariff system is an acceptable substitute for the current arrangements and unless the Minister can respond more positively than he did in Committee, I am afraid that we shall have to press the new clause to the vote.

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

Perhaps the hon. Gentleman can help me and the House, as we have had only 24 hours to examine the new clauses. Does new clause 3 apply both to the pension scheme and the compensation scheme or only to the pension scheme? From reading it, I am not clear about that.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

I suspect—I may need to take advice—that it deals principally with the burden of proof in compensation cases. Mutatis mutandis, as they say in Rome, what applies there might also apply to pensions. The Minister may wish to develop his point in his reply. I do not want to drag the debate out, as we had an extensive discussion in Committee. The issue was a matter of great concern to the Select Committee and it is a matter of concern to the Royal British Legion. There are wide-ranging concerns and the Government have not made a proper case for change. I take the view that, if it is unnecessary to change, it is necessary not to change.

Photo of Rachel Squire Rachel Squire Labour, Dunfermline West

First, I declare an interest. I am the honorary vice-president of the Dunfermline branch of the Royal British Legion Scotland. My association with that organisation has clearly influenced my views, as have veterans throughout my life.

I welcome the opportunity to raise the concerns of the Royal British Legion Scotland and the Royal British Legion in respect of the proposed new compensation scheme. As has been said on several occasions, under the present system a claimant will receive a war pension if the Ministry of Defence cannot prove beyond reasonable doubt that an injury or illness was not caused by events occurring during that person's time in service. The proposals in the Bill will mean that service personnel will have to prove that, on the balance of probabilities, their injury resulted from their time in service.

The Royal British Legion has told me that it believes that the proposals will mean that 60 per cent. of all new claims from ex-service personnel will fail. Another factor is the introduction of a time limit, which will mean that claims must be made within five years of an incident taking place.

Photo of Angus Robertson Angus Robertson Shadow SNP Spokesperson (Defence), Shadow SNP Spokesperson (Foreign and Commonwealth Office)

Does the hon. Lady agree with the Royal British Legion that claimants will be deterred from making claims if the onus of proving responsibility is placed on them? In other words, they will not make a claim in the first place.

Photo of Rachel Squire Rachel Squire Labour, Dunfermline West

I agree with the hon. Gentleman. In my constituency experience, I have found it difficult, in other circumstances, to persuade people to register claims when similar barriers and pressures are encountered.

That leads me to my next point, which is that many people are unaware of time limits placed in respect of claims, for example under employment legislation. They are often unaware of what they are entitled to claim.

I urge my hon. Friend the Minister to take into consideration as well the fact that, when a claim must be made within a five-year period, the condition to which the claim could legitimately apply may not have made itself felt. In other words, a person may not know that he or she is suffering from an illness or injury, as a complaint may take many years to develop.

Another problem arises in connection with handling claims when medical records are inadequate or incomplete. I hope that the Minister will be able to say whether he or his civil servants have consulted other Departments about the problems that can be encountered when a person tries to obtain medical records and other records from a long time ago. If there has not been wide consultation on that matter, I suggest that talks be held with ministerial and civil service colleagues in the Department of Trade and Industry. I have been involved with compensation claims lodged by miners and I know that some of the problems and delays arising out of those claims have been owing to the inadequacy or lack of medical records that go back several years.

Although I accept that the present compensation scheme is an unusual benefit, I believe that our armed forces have deserved it in the past and that they will continue to deserve it. I agree with Mr. Howarth and my colleagues on the Select Committee: our service personnel run special risks and are involved in situations of great and constant uncertainty. The impact that that can have on their future health is beyond easy regulation or surveillance.

I urge my hon. Friend the Minister to consider retaining the current burden of proof in the new compensation scheme. At the very least, I hope that he will say that consideration will be given to the double test proposed by the Select Committee, that he will take the new clause away for further examination and that the matter will be brought back to the House for further discussion.

Photo of Colin Breed Colin Breed Shadow Minister, Defence 3:15 pm, 6th May 2004

I agree entirely with the two previous speakers. I want to make two additional points.

First, the Government claim that the new compensation scheme is in line with modern practice, although, as has been said, it is not particularly modern. However, the MOD appears to have been selective when it comes to the aspects of modern pension and compensation schemes that it wants to introduce. It seems to me that the selection has revolved around whether the Government can save money. I suspect that the motivation behind the proposal is not so much a desire to modernise the scheme as to make further cost savings. Everyone accepts that it will be much harder for complainants to succeed with the cases that they bring. That being so, fewer claims will be paid and money will be saved.

Secondly, even the existing system is unfair. Claimants have to fight an unequal battle. The MOD has unlimited resources to fight a claim and can prevaricate for years. If even more inequality is to be introduced by changing the standard of the burden of proof, that would be grossly unfair to people who want to make a claim.

The Royal British Legion does a magnificent job in supporting claimants, although at terrific cost, as no legal aid is available for compensation claims. The Select Committee deliberated for a long time on this matter and came up with a wholly reasonable solution. If that solution were implemented, some practical problems might arise and there could be great scope for prevarication, but the Select Committee at least attempted to resolve the matter and recognised the need for fairness. It behoves the Minister to say exactly why the MOD wants to change what is a fundamental aspect of compensation claims.

The new scheme will shift the burden away from the MOD and on to claimants. It has been pointed out that that will make it harder for people to make claims. As a result, a significant number of people will be deterred from even beginning an attempt to take on the MOD.

I am glad that it appears that the matter will be put to a vote. I and my colleagues will certainly support the new clause.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

I am slightly more optimistic than my hon. Friend Mr. Breed. I hope that the Minister will see that the Government are making a shabby and shameless proposal in respect of compensation claims and that he will therefore accept the new clause. Anything else would fly in the face of what the Minister said that the Bill attempts to do.

People in our armed forces and their families must be treated fairly and equitably. That was the conclusion of the investigation by the Select Committee into the current legislation. In the much wider review that the Committee conducted in 2002, we looked specifically at the burden of proof. I defy any hon. Member to say that it is easy to get information about service personnel out of the MOD. Those seeking compensation find it extraordinarily difficult to obtain their medical records and a later amendment refers to that problem. The Defence Committee report also explains how difficult it is to obtain any proof from the Ministry of Defence. Some service personnel who have photographs and medals to prove their service in a certain location have been told that they were not in those places, because of the inaccuracy of the Ministry's records. How can the burden of proof be placed on those seeking compensation, not on the MOD? That is what happens under the current system, but the proposals in the Bill beggar any belief in fairness and justice. I thought that social justice and fairness under the law were high priorities for our party of government. It may aspire to provide those things to all citizens, but obviously not to members of the armed forces.

Rachel Squire mentioned the coal industry. Together with my local newspaper in Portsmouth, I am pursuing, on a daily basis, claims on behalf of service personnel, ranging from admirals to able seamen, who have been affected by asbestos-related illnesses, many of which do not materialise for 20 or 30 years. Trying to satisfy the standard of proof for such claims is all but impossible.

Mr. Howarth said that in Committee the Minister asked him whether he supported the position of the Royal British Legion or the Defence Committee. That question is beyond belief, because they were saying the same thing. Every day, the Royal British Legion picks up the pieces of shattered and broken lives and fights to get people the compensation that they have been denied. Hon. Members are right to say that the Bill will mean that fewer people will make claims. We may say, cynically, that the MOD wants to make it so difficult that people will not make claims. It is already difficult to obtain the evidence needed to make a successful claim and the Minister failed to recognise that the Royal British Legion made that exact point and so did the Defence Committee.

The Defence Committee offered an olive branch in the form of a solution that would enable the MOD to meet just over 50 per cent. of the ambitions of the Royal British Legion. The MOD refused. It would not even agree to retain the status quo, because it wants to screw down on those making a claim. Claimants will have to meet a standard of proof that goes beyond what most of us would consider reasonable. Some of those hon. Members who will be persuaded to vote with the Government today may, in a year or two, contemplate fighting a constituent's case for compensation. With the proposed standard of proof, they will find it very difficult to obtain the compensation that their constituent deserves.

I ask hon. Members not to shame this nation by voting against new clause 3. That is what most reasonable people would expect—[Interruption.] The Minister may be cynical enough to believe that this is a laughing matter, but those of us who deal with such claims regularly will know that my comments are heartfelt. I often meet claimants who cannot satisfy the standard of proof required. The MOD frequently asks for more evidence before agreeing to consider a case when it knows very well that the information needed has been in its possession and has either been lost or shredded. That is not good enough. The new clause offers a little hope for people who should get much more support. The Government should be ashamed of their proposals.

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

For the record, I was not laughing and I take this matter very seriously. I draw the House's attention to the Government's response to the Defence Committee. It might be helpful if some hon. Members who have contributed to the debate were to refer to the report of the Committee that we have been considering, which is the one that was published in December, and our response, which was published in January. Paragraphs 69 and 70 of that report deal with the compensation proposals and detail why the Government have put them forward.

We have a technical problem with the new clause. Mr. Howarth graciously confirmed that he intended it to affect the compensation scheme, but I am advised that as drafted it would affect the pension scheme. In saying that, I am trying to be helpful and I recognise that he has raised an issue for debate in connection with the compensation scheme.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

We are always delighted when the Minister seeks to be helpful and we appreciate it. The technical issue may need to be addressed, but the Minister is a most capable man and it is not beyond his wit to provide the changes necessary to give expression to the will of the House.

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

I do not know about that, but I shall do my best.

I recognise the role that the British Legion plays in many cases. My hon. Friend Rachel Squire is the president of the Dunfermline branch—

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

I suppose that we all know someone else who could be the president of the Dunfermline branch of the Royal British Legion. I met the British Legion this morning, together with the parliamentary Gulf veterans group. We had an interesting 45 minutes of discussion and I certainly value the work that the organisation does. We are in further discussions.

In Committee, I said that we doubted the validity of the issue that the British Legion had raised about 60 per cent. of cases. We have now joined with the British Legion to consider the methodology that it used and we suspect that it will come to accept that its conclusions were not quite accurate. We shall also discuss the compensation scheme.

The balance of probabilities is the key and we consider it right to adopt that standard of proof, as outlined in the Bill. My right hon. Friend the Secretary of State made that clear on Second Reading, in answer to an intervention by Hugh Robertson. When we decided to adopt that standard of proof, we asked an independent firm of consultants to consider that aspect of the compensation scheme. The consultants confirmed that

"the proposed standard of proof is reasonable."

I accept that the onus has moved from the MOD to the individual, and I shall outline my reasons for believing that to be a reasonable change.

The Department has clear responsibilities. I understand and accept that. We have to ensure that service records and medical records are up to date. I do not know how many more times I can say this, but I have made it clear—starting at the Select Committee on 5 November—that if there is a failure, especially in medical record keeping, in relation to compensation cases, the Department will accept responsibility. I said that in the Standing Committee, I said it in the Select Committee and I have just said it again on the Floor of the House. The point is also reflected in our response to the Select Committee.

At the Ministry of Defence, we understand, I hope, our responsibility for record keeping. If there is a failure, especially in medical record keeping, we shall accept responsibility. We are not trying to get out of paying compensation; far from it. We want to ensure that we pay compensation to the right people at the right time.

One of the things that the new scheme will allow us to do, which we are not allowed to do under the current one, is to pay compensation to those who are still employed in our armed forces. The existing scheme requires people to leave the armed forces.

I believe that the "balance of probabilities" standard of proof that we have adopted for the compensation scheme is in line with practice in most occupational pension schemes and in the civil courts. The "beyond reasonable doubt" standard of proof is not appropriate to a no-fault occupational scheme and would be out of line with current good practice, where evidence-based decisions are the norm, taking account of modern medical understanding and record keeping. As I said, we are clear about the responsibilities for record keeping that lie with the Ministry.

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

I was just about to end my remarks, but I welcome the hon. Gentleman to the debate.

Photo of Robert Smith Robert Smith Opposition Deputy Chief Whip (Commons)

Can the Minister clarify how wide-ranging his commitment is? Would the assumption that the claim was valid apply in all cases where records were missing, especially those of Gulf war veterans?

Photo of Mr Ivor Caplin Mr Ivor Caplin Parliamentary Under-Secretary, Ministry of Defence

No, that is not what I said. I said there would still be a need to lodge a proper compensation claim, but that there are clearly responsibilities on the Ministry of Defence to ensure that proper records apply. For the benefit of the hon. Gentleman, we are discussing a new compensation scheme, which will be effective from 6 April 2005 and will apply to all members of the armed forces. Obviously, any events that occur up to 6 April 2005 will come under the current compensation arrangements; we are discussing only the new compensation arrangements this afternoon.

In the light of my comments, I hope that the hon. Member for Aldershot will understand why I have to resist the new clause.

Photo of Gerald Howarth Gerald Howarth Shadow Minister (Defence)

Once again, I extend my gratitude to the hon. Members for Dunfermline, West (Rachel Squire), for South-East Cornwall (Mr. Breed) and for Portsmouth, South (Mr. Hancock) for their support for the new clause. I know that, like us, the Minister regards the issue as important and does not take it lightly.

I welcome some of the undertakings that the Minister has given, especially on medical records. All Members know that that issue has been very badly handled by the Ministry of Defence for a long time and that, from time to time, our constituents suffer accordingly. I am also pleased that the Minister is making up to the Royal British Legion and talking about methodology. That is welcome.

I hear what the Minister says about modern medical understanding, which is to be applied to the claims under consideration, although I have to say that there is no reason that modern medical understanding should not be applied to the existing standard of proof. There is no reason why it would not be equally helpful to the MOD in resisting a claim from someone "modern medical understanding" felt was not injured as a result of service to the Crown.

The argument has been well rehearsed and the issue is clear. The question is simple: are we to give the balance of advantage to those of our fellow citizens who put their lives on the line? This is not just another occupational pension scheme and nor is it just another occupational compensation scheme; it is a scheme for some very special people in our land—Her Majesty's armed forces. The Opposition and other Members feel that we owe it to our armed forces to give them the benefit of the doubt, and that means the Ministry of Defence having to prove beyond reasonable doubt that their injuries were not sustained by service to the Crown. Given the Minister's statement, I intend to press the new clause to a Division.

Question put, That the clause be read a Second time:—

The House divided: Ayes 144, Noes 254.

Division number 161 Orders of the Day — Armed Forces (Pensions and Compensation) Bill — New Clause 3 — Burden of Proof

Aye: 144 MPs

No: 254 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.