I beg to move amendment No. 16, in
schedule 1, page 5, line 5, at end insert—
'( ) (1) Section 1 (Appeals against rejection of war pension claims made in respect of members of the naval, military or air force) is amended as follows.
(2) After subsection (1) there is inserted—
''(1A) A member of the Armed Forces may elect to have an appeal of a claim under this section considered by the Pensions Appeal Tribunal without the claim having first been referred to any Internal Dispute Resolution Process established under the Armed Forces (Pensions and Compensation) Act 2004.''
(3) Section 2 (Appeals against rejection of war pension claims made in respect of mariners, pilots, etc) is amended as follows.
(4) After subsection (1) there is inserted—
''(1A) A member of the Armed Forces may elect to have an appeal of a claim under this section considered by the Pensions Appeal Tribunal without the claim having first been referred to any Internal Dispute Resolution Process established under the Armed Forces (Pensions and Compensation) Act 2004.''.'.
With this it will be convenient to discuss the following amendments:
No. 20, in
schedule 1, page 5, line 5, at end insert—
'( ) (1) Section 1 (Appeals against rejection of war pension claims made in respect of members of the naval, military or air forces) is amended as follows.
(2) After subsection (3) there is inserted—
''(3ZA) Where the Minister has received notification from the claimant of the claimant's wish to appeal whether or not that notification was received before the Minister notified the claimant of his decision under—
(a) this section, or
(b) a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces)
the appeal shall lie to the Tribunal.''
( ) (1) Section 2 (Appeals against rejection of war pension claims made in respect of mariners, pilots, etc) is amended as follows.
(2) After subsection (2) there is inserted—
''(3) Where the Minister has received notification from the claimant of the claimant's wish to appeal whether or not that notification was received before the Minister notified the claimant of his decision under—
(a) this section; or
(b) a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces)
the appeal shall lie to the Tribunal.''.'.
No. 17, in
schedule 1, page 5, line 15, at end insert—
'(4) After subsection (2) there is inserted—
''(2A) A member of the Armed Forces may elect to have an appeal of a claim under this section considered by the Pensions Appeal Tribunal without the claim having first been referred to any Internal Dispute Resolution Process established under the Armed Forces (Pensions and Compensation) Act 2004.''.'.
No. 19, in
schedule 1, page 5, line 15, at end insert—
'( ) After section 3 there is inserted—
''3A Retention of Right to Appeal
(1) Where the Minister accepts any claim under—
(a) sections 1, 2 or 3 of this Act; or
(b) a scheme mentioned in section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004 (compensation schemes for armed and reserve forces)
the claimant retains the right of appeal to the Pensions Appeal Tribunal.
(2) Any appeal under subsection (1) above may consider the level of tariff attributable to the claim.''.'.
I am grateful, as is my hon. Friend the Member for Aldershot, to the Royal British Legion for the briefing that it provided, setting out some of its concerns in this area.
The Minister used the word ''context'' two or three times during his explanation of the previous amendment. During consideration of these amendments, it is important that the Committee bears in mind what the context often is: an injured or sick former member of the armed forces—a man or woman with no trade union to which they can refer, and whose medical records are all controlled by their employer, and somebody who has very few friends apart from in the voluntary sector. That sector survives on the contributions raised from the public. As my hon. Friend said a moment ago, I doubt whether many people who buy poppies realise how much of their money is used to assist people to put appeal cases together.
In the light of these amendments, it is worth considering the figures in respect of what the legion is handling. Representatives told us that they represent 93 per cent. of appellants, whether legion members or not, and they do so for free—not, of course, free for the legion, but free for the appellant. They are concerned that the process will be enveloped by the general pension system. They confirm that 40 per cent. of their case load represents entitlement appeals; 33 per cent. are assessment appeals; and 16 per cent. are appeals made by widows of those who served in the second world war, even after all these years. They have a
''The proposal to add yet another tier for arbitration, that of commissioners''— that is what we are debating in respect of the first two amendments—
''would put further onus on us to provide a service that does not exist now. We the Legion represent currently 93 per cent. of represented cases at tribunal inclusive of Northern Ireland. Unless some step is taken to support War Pensioners etc before the SSC, the scene might be left more or less to the MoD.''
One need hardly add that that would not be good for the appellants.
We shall return to the legal aid issue, which affects a much larger number of cases, when we get to amendment No. 21 shortly. When we debated the previous amendment, the Minister rightly said that a relatively small number of people are involved. Our concern here is particularly with amendments Nos. 16 and 17. The legion confirms that the new scheme proposes not one, but two, further tiers of litigation. The first is the internal dispute resolution process, which has two tiers: the first stage gives the member the right to complain about a decision made by the scheme's administrators. The decision on complaints will be made by the assistant director of pensions casework of the Armed Forces Personnel Administration Agency. That decision, called the notice of decision, should be made within two months of the receipt of the complaint.
The notice of complaint will include an explanation of the decision, advice that the appellant has the right to refer the decision to the two-star panel within six weeks—these are all tight time limits and people may not be well, for example—and further advice that the Occupational Pensions Advisory Service is available.
The second stage provides the appellant with the right of appeal to a higher level against the decision made at the first stage. Such an appeal must be made in writing within six months of the notice of decision. It is my experience of casework, incidentally, that letters often get lost at the various stages. In such an appeal application, information given at the first stage must be repeated along with reasons why the appellant believes that the first stage decision must be reconsidered. A decision on the second stage is usually issued within two months of the original receipt of the complaint. Ironically, the House of Commons Library brief tells us not only that there is a lack of detail about pension appeals in the Government proposals, but that in the Government's March 2001 document, ''Joint Compensation Review'', the following remarks appear:
''We attach importance to ensuring that those who are in any way dissatisfied with decisions taken by the administrators of the scheme, have access to a fair and independent system of appeals. This is central to Human Rights and Fairness at Work. Both the WPS and AFPS have dedicated appeals systems. The former''— we are dealing with its equivalent here—
I apologise to the Committee because this is very complicated. However, one of the legion's main concerns is indeed that the matter is so complicated. The document goes on to state:
''As the new scheme would not be a part of the Armed Forces Pension Scheme, it would not be appropriate for appeals to be resolved through IDRP''.
Yet the Government propose that appeals should be resolved through two stages of IDRP. Therefore, before appeals can even reach the PAT, they must go through those two IDRP stages. Our amendments Nos. 16 and 17 propose that people could go straight to the PAT, which appears to be the Government's own recommendation from 2001. In a way, we drafted those amendments to help the Government by reminding them of what their position appears to have been.
When making more general remarks in an earlier debate, I tried to paint pictures of two cases involving my constituents, who are men who bravely served in the armed forces. I looked at the case of Major Allen, who was severely wounded in Burma. Frankly, after reading his modern medical reports, I consider it a miracle that he is still alive. The other case involved a sergeant-major who had mental health problems after long and extended service in a number of theatres. They had enough of a battle going through the existing system, so can we imagine what it would be like if they also had to go through all this nonsense? There would be two extra tiers of the independent dispute resolution procedure, with sharp cut-off dates at every point and a requirement to keep on repeating information from the first to the second stage. That seems to be a very shabby way to treat our armed forces.
Sometimes there is a temptation in Committee to bang on and on about a point, but it seems to me that the case here is so overwhelming that nothing could be added by my going on and on producing examples. The fact is that the Government are making the appeal process hugely more lengthy and complex for people to use.
Before moving on briefly to the last amendment in the group, I will add one further thought. The Government cannot completely close the bar on people going to court, which is recognised as a fact. We are developing a litigation culture, about which I know many Committee members are unhappy. Next Friday when I speak to my private Member's Bill, I hope to take some money away from litigation lawyers—if the talks with colleagues of Labour Members continue—and to give some protection to voluntary organisations against being unreasonably sued.
The fact is that by introducing this long, complicated internal process we are simply encouraging members of the armed forces not to talk to the British Legion or go through the tried and tested system, but simply to say, ''We've had enough. We're going off to a human rights lawyer and we're going to court.'' I suspect, in the long run, that the legislation will end up costing the Government more money and acting as a cancer within the bonds of comradeship
that hold the armed forces together. Every time that such a case is fought, it has a negative effect on morale in the armed forces.
I will briefly discuss amendment No. 19, which is the last amendment in the group. It raises a complicated point, and I am grateful to the British Legion for digging it out. The word ''rejected'', which appears in the legislation, does not appear to offer enough scope for appeal. That is why the amendment would ensure that there is scope to appeal even where a claim has been accepted. That ties into debates elsewhere on issues such as tariffs. The Royal British Legion has pointed out that a claim over a back injury could be treated at several different levels to which different tariffs apply, so the Secretary of State could accept a claim within the meaning of the legislation, but offer far too low a rate because the claim had been accepted at a different level from that involving the medical evidence. Therefore, there could be a nonsensical dispute about the label under which a claim had been accepted, because of the different tariffs. The amendment would restore the right to appeal in circumstances in which a claim had been accepted in theory, but at a derisory level.
The Government are replacing a relatively simple system with an extremely complicated one. For reasons that the Opposition have endlessly presented to the Committee, even under the current, simple system, it is difficult for former members of the armed forces and their voluntary advisers, where they have them, to pursue cases. Adding all these extra tiers, without any opportunity for a short cut, is surely letting down people who have served their country well. I urge the Committee to support the amendments.
I am pleased to respond to the arguments made by the hon. Member for Canterbury in support of the amendments. It might be helpful if I go through the amendments one by one, as he did, and deal with the issues as I see them.
If I have understood correctly, amendment No. 16 would ensure that a right of appeal lay against the initial decision on a claim under the new compensation scheme. If that is the case, there is some misunderstanding, which I hope to clear up. We propose to amend section 5A of the Pensions Appeal Tribunals Act 1943 to introduce rights of appeal to the tribunals that we have discussed this morning under the new armed forces compensation scheme, but not to disturb any existing rights to appeal under the war pensions scheme.
The amendments appear to confuse the existing rights under the war pensions scheme with those proposed under the new compensation scheme. Sections 1 and 2 of the 1943 Act apply to rights of appeal against decisions to reject claims for war pensions under the war pensions scheme. We do not propose to introduce an internal disputes resolution procedure to that scheme. I hope that that helps the hon. Gentleman.
I am grateful to the Minister and, as ever, make the Opposition's point that if there is a technical defect in the drafting, we are happy to recognise that; this is such a complicated area. The central issue behind the amendments is that we are concerned that new claimants under the new scheme should not be forced to go through a two-stage internal dispute resolution procedure before they can get to the PAT.
After listening to the hon. Gentleman, I shall try to help him a little more. Of course, there will be an internal process for the Veterans Agency to consider claims or, possibly, to review them. I thought he would have expected that.
We have not reached a final conclusion about whether that system will have one or two tiers. I would probably prefer a single-tier system; pensions appeals are moving in that direction in general. However, it would be entirely right and proper for the Veterans Agency to check internally that no errors had been made before the individual took the claim to the independent appeals tribunal. I do not understand why the hon. Gentleman should be against such an internal check of the agency's work, particularly if it is done before the matter goes to tribunal. We are not asking people to face a tribunal at that point. There will merely be an internal check to determine whether the claim and the paperwork connected with it is correct. I do not understand why he continues to make that point about amendment No. 16.
I am happy to do so as the Minister is obviously in a characteristically helpful mode. I am delighted to hear that he may go for a one-tier system, but the fact remains that even a one-stage system will be hedged about with various time limits and so on. If a possibly sick and confused member of the armed forces drops the ball at that stage, he may never get as far as the PAT.
I will outline my thoughts on the other amendments in the group, as I hope to bring the matters together. It is obvious where I am heading in respect of the amendments, but I am happy to entertain the hon. Gentleman in a debate.
As far as I understand it, the purpose of amendment No. 17 is to make the right of appeal lie against reconsiderations resulting from the internal dispute resolution process. The process proposed in the Bill reflects current best practice. That practice has been adopted by other jurisdictions, such as the criminal injuries compensation scheme, so it is in line with the criminal injuries process in the UK.
It must ultimately be to the advantage of the serviceman or woman making the claim for the MOD, through the Veterans Agency, to be able to reconsider a decision and to correct an error without the whole thing having to go through a time-consuming formal appeal. I accept that some internal disputes resolution
procedures may seem protracted, but we do not plan for that to be the case. The new arrangements will be in line with wider best practice in industry. There will be clear target time scales for processing cases and we do not anticipate the reviews being protracted.
We need to bear it in mind that there will still be a right to appeal against the decision. We must also bear it in mind that individuals may not want to go to appeal. Indeed, some are deterred by the thought of having to attend a tribunal or being involved in the appeal process. We hope that if they need to or want to avoid that, their cases can be reviewed internally.
On amendments Nos. 20 and 19, when the Secretary of State decides, for the purposes of the existing war pension scheme, that an injury or death is not attributable or aggravated by service, he must, as the hon. Gentleman knows, notify the claimant of that decision, explaining the grounds on which his decision has been made. It is at that point that the right of appeal arises. No right of appeal can arise until a decision has been made on the claim, and I confirm that that will be the position under the armed forces compensation scheme that we are discussing.
I do not understand the Minister's response to amendment No. 19. Before he moves on, will he explain what happens if a response has been made and the case is accepted for a much lower tariff and a less serious injury than the claimant is claiming? We are not lawyers, but as we understand it, there would then be no scope for appeal.
If I understand the hon. Gentleman correctly, the same right of appeal exists when decisions are made on the review of the claim. If the application for review is successful, those rights would not need to be wholly exercised. We may need to have some correspondence to clarify the position. I agree that it is rather complex to deal with in Committee.
Sections 1, 2 and 3 of the 1943 Act provide a right of appeal to a PAT against a decision made on a new claim under the existing war pensions scheme. It follows that if such a claim were successful, those rights would not need to be pressed. That is why, in my view, amendment No. 20 is not required. I hope that after this interesting and complex discussion, the hon. Gentleman will withdraw amendment No. 16, which appears to be a probing amendment.
On amendments Nos. 16, 17 and 20, which deal with the internal dispute resolution process, the Minister has tried to be helpful. He suggested that it would probably be only a single rather than a double stage. He also made it clear that he sees it as simply a paperwork exercise. He has not made any concession on the tight timing, however. Another place may choose to return to the matter, but on the basis of the concession he made, I shall not press amendment No. 16 to a Division.
I am still not clear about the Minister's answer on amendment No. 19. He promised to write to me, but the central issue on which I need clarification in Committee is whether people would be able to appeal if a claim has been accepted but for a much less serious injury than the claimant had put in for.
I am trying to be as helpful as possible at this early stage—well, it is not early now; it was early when I arrived, under the bizarre sitting times that we have on Tuesdays. I shall not get on my soap box now, Mr. O'Brien, or you will rule me out of order. The simple answer to the hon. Gentleman's question is yes.
I beg to move amendment No. 21, in
schedule 1, page 6, line 35, at end insert—
'( ) The Social Security Commissioners (Procedure) Regulations 1999 (S.I. 1999/1495) is amended as follows—
(a) after Regulation 24(6)(ff) insert—
''(fff) in cases concerning the Armed Forces Compensation Scheme funding for services for representation of a claimant shall be provided by the Community Legal Service under the provisions of section (6) of the Access to Justice Act 1999 (c.22).''
(b) after Regulation 28(1) insert—
''(1A) in cases concerning the Armed Forces Compensation Scheme a Commissioner may make a determination or decision including an Assessment.
(1B) an ''Assessment'' in article 28(1A) has the same meaning as in section 5 of the Pensions Appeal Tribunals Act 1943.''.'.
In a sense the amendment allows us to repeat the issues that we debated half an hour or so ago under amendment No. 15 to clause 5. Besides the fact that we have introduced an extra stage, there is the question of costs. In response to that debate, the Minister from the Department for Constitutional Affairs told us and his hon. Friends, who rightly raised a number of concerns, again and again that we were dealing with only a small number of cases. If I understand the system correctly, this part of the Bill covers a much larger number of cases.
The Royal British Legion says:
''The Bill shifts an appeal against a PAT decision from the High Court to the Social Security Commissioners. There are costs issues. At present the Tribunal Rules provide that the Tribunal pays the costs of the appellant in the High Court. This provision would lapse when the Appeal route is shifted away from the High Court. There would be a major question about representation of War Pension and new scheme appellants in proceedings before the Social Security Commissioners. It would be unrealistic to expect much assistance from a special award of Legal Aid—that might apply to exceptional cases but cannot be expected to be a normal matter.
This is tied up with the question of who would actually represent the appellant before the Social Security Commissioner. Most representation at present before the Commissioners is not by lawyers''— whereas High Court representation obviously is—
''for instance the normal social security appeal is done on the papers and representations for the appellant are made by a Welfare rights officer etc. Unless some step is taken to support War Pensioners etc before the SSC, the scene might be more or less left to the MoD unilaterally.''
I hardly need say that that would be extremely bad for members of the armed forces concerned.
We have already observed that the Royal British Legion spends £500,000 a year on legal representation. Where is the support to come from in this unequal
battle? The hon. Member for Cleethorpes kept drawing parallels with civilian life. We are dealing with people who have no trade union to provide support for them at the appeals, whose medical records are controlled by the other side, and who may be ill and confused. In his reply to the earlier debate, the Minister said that we were dealing with relatively small numbers, but that we would be dealing with much larger numbers at this stage of the process. He also read out a quotation that mentioned assistance for voluntary organisations. My colleagues would be well satisfied if the Government responded to our amendment by suggesting that, instead of adopting our approach, they would make grants to the Royal British Legion, the Soldiers, Sailors and Airmen's Families Association and other bodies that assist people in such a way. The issue, however, is who will support people who go before the social security commissioners? The whole structure has been put together assuming that there are two sides. Is the ex-serviceman supposed to go on his own, or will the Royal British Legion and the other service welfare organisations, which are already stretched, be expected to provide support?
I understand the general thrust of the hon. Gentleman's argument, and I hate to bang on about a point that I made before, but it is clear that ex-service personnel can be represented by trade unions in the capacity that he describes. There would therefore be no requirement for extra state funding. I am sure that the trade unions would be quite happy to represent one of their members who was an ex-service person, whether they joined the union before or after serving in the forces.
I am grateful to the hon. Gentleman. I was going to tease two of my hon. Friends that they had other important engagements today as members of the Regular Army and had left it to the Territorial Army to make these points. I am therefore particularly glad that the hon. Gentleman is in his place. He is, of course, right. A small number of members of the armed forces who are members of trade unions, and perhaps those who enter unionised employment, may benefit from having a trade union representative if, some years later, a condition emerges that has not been caught by the new time constraints that the Government are introducing. I entirely agree with him. Faced with these tight deadlines, however, the vast majority of people leaving the armed forces, who are not members of trade unions, have no one else to turn to but the already overstretched voluntary organisations.
This is a David and Goliath arrangement and we would like to give David a small advantage. We are calling for him to be given legal aid from the common legal fund. The alternative would be for the Government to propose some extra assistance for the voluntary organisations. I look to the Minister to tell us how he thinks that uneven situation, which is a major step back from the current arrangements, should be resolved.
I am not sure whether I am David or Goliath here. Certainly on most mornings I am David. I will try to answer the serious point that has been made. I am glad that the Committee is spending some time on this issue. Most case hearings before the commissioners are heard on paper. In that sense, representation is not an issue. When I talked about the 20 or so cases, I was referring to cases that were appealed from the PAT to the social security commissioners. About 8,000 PAT cases are heard, but 20 cases were appealed to the High Court.
In two thirds of those 20 cases, the applicant did not request an oral hearing. If there is an oral hearing, it is designed to be user friendly without the requirement of legal representation. Many countries are examining our tribunal system and seeking to replicate it. It has been set up so that people can represent themselves. If an oral hearing is requested, the procedure is very different from that of a High Court hearing.
The hon. Gentleman properly stresses the distinction between the High Court and the new system. In that sense, the system is less formal. There are no wigs and gowns. There is far less legalese, specifically to assist those who seek to appeal from the PAT. I should also stress the inquisitorial nature of the social security commissioners. They will question the party and any attendant experts. They will seek to resolve the issues in that questioning manner, rather than with opposing legal counsel presenting technical arguments to a judge.
The hon. Gentleman made a point about the British Legion. I want to put on record the work that is done. I am the Minister responsible for legal aid. The hon. Gentleman will understand that quite properly under our arrangements and the arrangements of previous Governments, legal aid is administered separately. It was formerly administered by the Legal Aid Board. It is now administered by the Legal Services Commission. The Government should not get involved in who does and does not get money. That would be improper.
The fund does not just facilitate legal aid lawyers. We have had much discussion about lawyers providing publicly funded work. It also funds citizens advice bureaux. It funds law centres throughout the country. I have visited projects in Brighton that have received money from the Legal Services Commission, in towns such as Brighton—very close to the Under-Secretary of State for Defence, my hon. Friend the Member for Hove's constituency—Bromley and, recently, Barnsley. Not-for-profit organisations do get funding from the LSC. If there were an application, it would of course be considered, as long as it met the appropriate criteria. One would expect the LSC to examine that closely. Essentially, however, representation is not strictly necessary, because most of the applicants themselves seek to apply on the papers, as it were, and challenge what they think is the wrong legal interpretation of their case.
The Minister has hinted that it might be possible for the British Legion to seek assistance from that fund, but does he accept that today, according to his own figures, thousands of these cases do require hearings? Will he accept also the point of the hon. Member for Brighton, Kemptown that it makes a huge difference in front of the social security commissioners whether one has assistance or not, and that under the current arrangements for appeal to the High Court, people do get their costs paid, so that only a firm commitment to a grant from the British Legion will bring funding anywhere near the current level for existing war pensioners?
The tribunals, our social security commissioners and the PAT examine complex technical matters on behalf of some extremely vulnerable people who require their services, such as pensioners, lone parents and those who have suffered injury at work, throughout the country and across all our constituencies. Many of them are receiving those services as I speak, and they are doing so without representation. That is why I wanted to bring to the attention of the hon. Gentleman the review of Sir Andrew Leggatt, the broad thrust of which the Government are looking to accept, and on the back of which we hope to come forward with our proposals. The Government will be building on his recommendation through the creation of a tribunal service and wider reform of the administrative justice system, and I hope that this will be set out in a White Paper later this year. I am sure that the hon. Gentleman and others will want to return to these issues when we discuss the future direction of the tribunals.
The hon. Gentleman's amendment also makes some mention of assessments for appeals. It would be wrong to prescribe in primary legislation all the many things that can come before the PAT, which currently considers assessment claims. I reassure the hon. Gentleman that the new arrangements will continue to do so. On that basis, I hope that he will feel able to withdraw his amendments.
We have had a number of civilised and useful exchanges this morning, but I must disappoint the Minister. His figures show that thousands of cases go on to hearings. People who can get representation paid for to go to the High Court will now have to go to social security commissioners without support. The Minister said that he would consider the possibility of funding for the British Legion, but there is no firm commitment to provide it. The legion would have great difficulty taking on the extra burden, although I have no doubt that it will do the best that it can with support from the other service charities.
We are effectively discussing sending ex-service personnel into an extremely unequal contest, which is different from that faced by others. I take the point made by the hon. Member for Falkirk, West (Mr. Joyce) that ex-service personnel are occasionally members of trade unions, but the vast majority will face that contest without the support of a trade union. They will do so from the basis that their employer
controls their medical records, and with all the other different circumstances that we have discussed. To deny those people free representation, in any form, without a firm commitment to provide funding for voluntary organisations to offer representation is a major step backwards. Frankly, I think that the House of Commons owes our armed forces more than that.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 10.
I shall make some additional points about the schedule that have been raised by the Royal British Legion. The Ministry of Defence has made it clear that in its view the new compensation scheme is not covered by article 6 of the European convention on human rights. It has said that a dispute about entitlement under the new scheme would not be a dispute about a civil right or obligation under that article. It has also argued, in current litigation under the war pensions scheme, that the present war pensions scheme is not covered by article 6. However, that view contradicts the British Government's submission to the European Court of Human Rights in the case of McGinley and Egan v. the UK, which conceded that article 6 applied to the war pensions scheme.
The wider point is that the approach is surprising. Effectively, it conceives of rights under the new compensation scheme as merely matters of contractual right. Many earlier remarks made by the Minister suggested that pensions appeal tribunals are like any other work tribunal, and that there is no difference for those who have served in the armed forces. However, those people are not allowed to speak out politically while they are serving—although I know that the hon. Member for Falkirk, West has a courageous record in that respect—and endure the other disadvantages that we have discussed. [Interruption.] I was one of the few Tories who had sympathy for the hon. Gentleman; I was the first rebel in the new intake, as a Conservative, so I know what it is like to be on the receiving end of a disciplinary system. That would be analogous to rights under an occupational pension scheme that is part of the package of terms and conditions of employment.
The argument is that such rights are private, being purely issues of contract of employment without a public element. That is not the traditional understanding of Labour or Conservative Governments; indeed, the 1943 legislation was passed under a coalition Government and all the parties represented in this Committee had Members among them. It seems extraordinary to move away from the understanding that this is a public matter to it becoming effectively a private contractual arrangement, but I am advised that that is what refusal to accept article 6 will mean.
What is intended is a two-stage process; in the first stage, the claimant would dispute the Minister's decision. The Minister would then reconsider the decision disputed. There would be a compulsory review stage and the review would be described as an internal appeal. Such a description gives a false picture because a review in the Ministry of Defence will have no independent or judicial element. At the second stage, the claimant might decide to make an appeal if the Minister's review did not resolve the dispute.
The Royal British Legion asks whether the words of the Bill would give the PAT any jurisdiction to hear appeals against review discussions, if that is what the new scheme provides. The MOD says that it does not perceive a problem, but there obviously is a problem if there is a doubt about the tribunal's power to deal with an appeal.
In making my final point, I am again indebted to the British Legion. Experience of the war pensions' system suggests that the use of review may confuse many claimants about the exercise of their right to appeal to a tribunal. Under the existing arrangements for war pensions the Secretary of State has a power to review previous decisions. The power is often used after the claimant has formally disputed a decision. Typically, the claimant will write to say that he or she wishes to appeal. The difficulty is that many claimants believe that having already written to the Secretary of State disputing a decision, they do not need to write to him again if the decision is reviewed but left as it is. They believe that their original letter stands as an appeal. As a result, some would-be appellants fail to make an appeal in time. Compulsory review as an essential preliminary to an appeal effectively requires the claimant to appeal twice, the first appeal being treated only as an application to review and a further appeal being required to trigger the appeal process. In turn, that relates to the general problem that while the idea of appeal is widely understood, that of review is not. To require a claimant to write to ask for a review of the decision disputed by them would not be understood by many claimants.
The British Legion's points really boil down to the following: the Minister's quotes in earlier debates, and his way of thinking, are all about turning the proposal into part of the contractual arrangement in the civilian appeals process, as though there is no special public element involved in military compensation claims. I do not know whether Sir Andrew Leggatt, or any of the other people who made recommendations, ever served
in the armed forces, but Labour and Conservative Governments have always recognised that a public element is involved. At a working level, the new arrangements are much more complicated and more difficult for people to understand. There is far more scope for people to slip up and they will have less assistance along the way.
I shall make a few brief comments on the general principles of the schedule. I accept that the Minister wants to ensure as far as possible that claimants can make their own representations and present their case. I, too, would not want to encourage the involvement of legal representation, but we must recognise the specific references in new paragraphs 6A and 6B. New section 6A(3) states:
''If each of the parties to the appeal expresses the view that the decision appealed against was erroneous in point of law''.
That phrase is repeated twice in new section 6B. One might expect that someone who expressed why they believed a decision was erroneous in point of law had some understanding of the legal processes. One wonders how they could do so in their own capacity without at least some involvement or advice in legal terms to enable them to do so.
In my limited experience of appeal processes generally, the incidence of which seems to be increasing, decisions often rest on the interpretation of a point of law. Many appellants go in rather naively, expecting to receive what they consider to be natural justice for their case, only to find that although everyone appears sympathetic to them and understands precisely what they are getting at, regretfully the interpretation of the narrow point of law finds against them. I understand the theory and the hoped-for practice. I simply wonder whether the measure will work in practice as the Minister hopes.
New section 6D(4) states:
''If it appears to a Commissioner that a matter before him involves a question of fact of special difficulty, he may direct that in dealing with that matter he shall have the assistance of one or more experts.
In this subsection 'expert' means a person appearing to the Commissioner to have knowledge or experience which would be relevant in determining the question of fact of special difficulty.''
The idea of expert witnesses has undergone a bit of a transformation in recent times. As a lay member of the General Medical Council, I see a number of cases in which people have used medical gentlemen and women who are expert in their field, only to find that there is a counter-expert. Remarkably, expert advice rather depends on who is paying the expert.
If we arrive at a situation in which the commissioner is the sole person to decide who the expert is, one wonders whether, to ensure equity and fairness, the expert should be agreed by both sides or whether both sides should have an opportunity to have their own expert witnesses. I know that that would involve additional cost, but the clause is drawn rather narrowly, enabling the commissioner to decide whether an expert witness is required. There should be at least some input from the other side, perhaps in the
decision as to who the expert is. Perhaps the other side should be able to have its own expert witness, for which it would be recompensed.
In theory, the narrow provision may be right. In practice in recent times, however, there have been conflicting expert witnesses, which sometimes adds to confusion rather than allaying it. The clause looks back to the golden age of expert witnesses and does not recognise the current practice of expert witnesses appearing at tribunals.
Question put and agreed to.
Schedule 1 agreed to.