THE LATE BRIGADIER A. GILLIBRAND. (Hansard, 5 December 1945)

The noble Earl said
My Lords, I beg to ask the question standing in my name.

§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR WAR (LORD NATHAN)
My Lords, I must apologize to the noble Earl and to the House for not having been in my place when he put his question. I had understood that he was going to address your Lordships at some length upon this subject. Unfortunately, the documents I expected have not arrived. I am, however, sufficiently prepared to meet the question to say this. The gallant officer whose case has excited the natural sympathy of the noble and gallant Earl died from a most insidious disease called chronic lymphatic leukæmia, the coming on of which it is very difficult to perceive. He had suffered from this illness, and had been treated for it, in the year 1937. It was unknown to the military medical authorities that he had either suffered from that disease or been treated for it; indeed it was understood that he was, and he claimed to be, in good, sound health. At a later date, whilst serving in India, he 335 was affected by an illness which was at that time diagnosed as being Hodgkin's disease, which is, I understand, in its symptoms not very different from lymphatic leukæmia. Before the war he had undergone deep X-ray therapy, and that treatment was prescribed for him again in May, 1942, when Hodgkin's disease was diagnosed. He was anxious, however, for reasons of his own, not to return to the United Kingdom and was allowed to remain where he was. After a period of leave he returned to duty. Later in the year 1942 this disease from which he died was diagnosed. A claim was then, very naturally, made by his family in respect of a war pension by reason of his death.
It has persisted in all the codes relating to war pensions that there should be an inter-connexion between cause and effect to give rise to an entitlement to a war pension. By Clause 4 of the Royal Warrant for Pensions, it is prescribed that an entitlement arises where death has been due to disease attributable to war service. Until the last Royal Warrant of 1943, entitlement depended upon direct attributability, but having regard to the hardships that seemed to be involved in the word "direct" was deleted and all that an entitlement depends upon now is that the disease shall be attributable.
Further, prior to,1943 the onus of proof lay upon the applicant. Now, however, it is provided, I think by Article 4 (2) of the Royal Warrant, and it was certainly provided in the White Paper, that the onus of proof should be shifted from the shoulders of the applicant to the shoulders of the Minister, and that there should be two presumptions in favour of the applicant. The first is that when he originally joined for service he was fit for the service to which he was directed, and the second is that the disease from which he might ultimately die was attributable to that service. But those were only presumptions in his favour, and they were liable to be rebutted. The Minister was put under the obligation, in considering whether or not to admit a claim so made, to take the general consensus of medical opinion, and, if necessary, to take the highest medical advice. I remember very well this matter coming up for discussion when it arose out of rather unexpected cases of cancer among 336 young men; but the principle applies whatever disease may be in question.
In this case the presumptions in favour of the applicant are rebutted, and the onus of proof on the part of the Minister is, I think, satisfied, because this officer died from a disease from which he was suffering before he joined the Service. It is an insidious disease, a disease from which recovery is unknown; and he died from it no sooner than he might have been expected to "die from it had there been no military service involved at all. The whole matter has been investigated for the Minister of Pensions by an independent medical expert appointed by the President of the Royal College of Physicians, upon whose advice the Minister has acted in rejecting the claim. An appeal was made to the Pensions Appeal Tribunal, which, after considering all the evidence, rejected the claim. In default of an appeal on some point of law, the decision of the Pensions Appeal Tribunal is of course final. I have given this full explanation to the noble Earl and to the House, because in this class of case it is important that it should be known that, whilst the onus of proof is on the Minister, the claim is rebuttable. In this case it has been rebutted, and the rebuttal has been upheld by the Appeal Tribunal.

THE EARL OF CORK AND ORRERY
My Lords, I thank the noble Lord for his answer. He told the House that he had expected me to occupy some time, but my remarks will not be so long as his answer. I think that in justice to the dead officer and his widow, who is the appellant, I should put before you another point of view on this officer's career. You will have noticed that Colonel Gillibrand (as he was then) was recalled to the Army in November, 1939, and a month afterwards he underwent a medical examination by a military medical board and was passed as fit for service. In February, 1940, he had to go into an E.M.S. hospital as a military patient, and whilst there he told the doctor that he had suffered from this lymphatic leukæmia and asked to be examined. He was examined and no trace was found of the illness. No secret was made of the fact that he had been examined and had suffered from this disease. In the words of the doctor who made the examination, 337 his papers would have been available to any military medical board held at a later date.
Before he went on foreign service he was examined by a board and passed fit for foreign service. He was sent to Egypt, and took up the important appointment of Deputy Director of Supply and Transport. In that capacity he served for two years. That was a period in which the movement of the Army alternated between a victorious advance and a rapid retreat, Conditions which would test any arrangements for supply and transport to the utmost, if not to the breaking-point. However, they stood the test, and, as a result, Colonel Gillibrand was twice mentioned in dispatches for devotion to duty and services of exceptional merit. In February, 1942, he was promoted to the rank of Brigadier, which set the seal on his success.
In June, 1942, symptoms of leukæmia reappeared, but he continued on duty until September. when his condition rapidly deteriorated. He died on the 27th of that month. He left a widow and four children, to whom a pension and allowances have been refused, on the grounds stated by the Minister, who wrote: My principal medical advisers were unable to find any evidence that Service factors had played any part in the development of the disease that caused his death.…The advice of an independent specialist…supported this view. In these circumstances, while the utmost sympathy is felt for Mrs. Gillibrand in the tragic position in which she now finds herself, it is not possible to vary the decision that she is not eligible for a pension from this Ministry I ask your Lordships to observe the words "it is not possible." Why is it riot possible? These laws are not made in Heaven; they are made by men, by the officials of the Ministry of Pensions. The Minister of Pensions is given wide discretionary powers. Why is it not possible to alter the law when it brings the widow and children of a distinguished officer into a "tragic position"? It is the duty of the Minister to have the law altered and the alteration made retrospective.
Several senior officers who were out there at the time testified to the strain that this officer had undergone and the zeal he had displayed in carrying out his duties. The following is an extract from a letter written by one of these senior officers, a doctor in civil life, who was serving as a Colonel in the R.A.M.C.: 338 I understand that Brigadier Gillibrand died of lymphatic leuk…mia, which is, of course, a constitutional disease, but f have no doubt in my own mind that the progress of the disease was materially aggravated by the strain, both mental and physical, of his very important post. As you know, he was head of the organization for the whole of the supply and transport arrangements for the British troops in Egypt—a perfectly enormous task. This is the view of a medical officer who knew and was actually in the mess with Brigadier Gillibrand. He knew the conditions under which he served, and his view was that the disease was aggravated by what that officer had undergone.
An appeal was lodged, as stated, with the Pensions Appeal Tribunal, with the result that the Ministry's decision was upheld and the appeal was dismissed. But the Tribunal's powers are so limited that in the light of the medical evidence produced it could hardly have decided otherwise. Nor can the medical men be blamed. They have their duty to perform, to give their professional opinion without fear or favour. But the result of all this is that we have this distinguished officer's widow and four children in what the Minister so well describes as a "tragic position." There are many in this country in a similar position. Is that what the people of this country really want—that the rules and regulations made in their name should be so administered, and with such rigidity, as to inflict cruelty upon the dependants of those who have died on active service in the service of their country? I do not believe people of this country want that sort of thing at all. They want to be generous to these people; not mean almost to the point of cruelty.
The setting up of these tribunals was a great step in the right direction and high hopes were raised, higher possibly than were justified in view of the narrow regulations under which the tribunals were to act. Nevertheless, the tribunals have done great work, and a large number of cases have come before them. In many instances appeals have been allowed. I am quite sure, however, that if greater latitude had been allowed many more appeals would have been successful, for the cases would have been considered not only on medical grounds but also from the humanitarian point of view. The Royal Warrant of December, 1943, gives a lead in the humanitarian direction by laying down that the benefit of any reasonable doubt should be given to the claimant.
339 But this clause appears to have been somewhat forgotten on this occasion. In the particular case which I bring to your Lordships' notice to-day I have no special interest at all, and I do not know any of the persons concerned. I selected this case out of a great number of similar cases which were sent to me, because I considered that the rank of the officer would result in its attracting more attention. That it has done.
But I am pleading not only for this officer's dependants, but for all, from Brigadier to Bugler, who have been treated in this unjust and cruel fashion. This case is a particularly hard one as Brigadier Gillibrand was a Territorial officer and not a Regular. Had he been a Regular, I understand that his wife would have been entitled to a small pension on account of his military service. But he was one of those men who, in spite of derision, neglect and discouragement, carried on in the years between the wars preparing themselves in their spare time to be able to take their part and to serve their country once more if they were wanted. In the 1914–1918 war he won the D.S.O. and was three times mentioned in despatches. I have given your Lordships some account of his service in this war, and as you know, he was twice mentioned in dispatches. Surely his dependants deserve a little better treatment than this from the nation, as do the dependants of all those who have died on active service, whether their fatal illness can be attributed to war conditions or not.
We have had plenty of shirkers who, by exaggerating their ailments, or by discovering a conscience the existence of which no one had ever suspected, secured exemption from active service. Do not let us penalize those who rose above their disabilities in their country's cause. Do not let us penalize the dependants of a man who may have concealed the fact that he was suffering from some illness because of his patriotic desire to get to the front and to do his duty. When the Military Services accept a man after an examination by their own medical officers, surely, if anything happens later on they should stand by their bargaïn. The man's medical history should start for war purposes from the date that he was accepted as fit for service. Your Lordships obtained a concession of similar sort for seamen 340 who develop tuberculosis after joining their ships and going to sea under war conditions. It is only a short step in the same direction if you now decide to modify the rules so that all those who died on active service, whether from diseases or from wounds, or were actually killed, should be treated alike.
There are many grievances as regards pensions and allowances which the rigorous rules now in force prevent being treated in a just, humane, and commonsense way. I have only dealt to-day with one effect of the problem. Your Lordships have expressed an opinion that the rules and regulations of the Royal Warrants and Acts should be examined by an impartial and unfettered committee to see if they inflict hardship in any cases and what action is required to remove any legitimate grievances. Surely it is necessary to do so and remove all these grievances of the sort of which this is such a striking example. I had hoped that the Government would have announced that something of the sort was about to be, or was actually being done, and that such cases as that of Brigadier Gillibrand would be sympathetically dealt with. If such grievances as these are allowed to remain they are a national disgrace and they stultify all our protestations that "We shall not forget."

§ LORD SHERWOOD
My Lords, would like to support the noble Earl—

THE EARL OF DONOUGHMORE
My Lords, I rise to a point of order. This was a question, not a Motion, and once the Minister had answered, the noble Earl had no right of reply. I hope, therefore, that this debate is now concluded. It is quite open, of course, to any of your Lordships to make a Motion and initiate a debate, but that is not the position in which you now find yourselves.

§ VISCOUNT ADDISON
My Lords, I quite agree with what the noble Earl, Lord Donoughmore, has said. It would be irregular and contrary to the procedure of this House now to initiate a debate of this kind, on a question on which the Minister has already given a reply. I suggest, therefore, that we should proceed with the next business on the Order Paper.

§ LORD SHERWOOD
My Lords, may I say that when the Minister made his reply he said that he had not got the Papers, nor was he supplied with the Papers in this case?