Lords Sitting of 8 September 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St Edmundsbury and Ipswich.

Lord Vallance of Tummel
Sir Iain David Thomas Vallance, Knight, having been created Baron Vallance of Tummel, of Tummel in Perth and Kinross, for life—Was, in his robes, introduced between the Lord Wallace of Saltaire and the Lord Phillips of Sudbury.
Baroness Chapman
Nicola Jane Chapman, having been created Baroness Chapman, of Leeds in the County of West Yorkshire, for life—Was, in her robes, introduced between the Baroness Masham of Ilton and the Baroness Dean of Thornton-le-Fylde.

Draft Animal Welfare Bill
2.49 p.m.
Lord Lucasasked the Leader of the House:
Why the draft Animal Welfare Bill is not being considered by a Joint Committee.
The Lord President of the Council (Baroness Amos): My Lords, this is uncharted territory, with few precedents and no rules. Decisions about which Bills receive pre-legislative scrutiny and the method of scrutiny are made on a case-by-case basis. This Session, we have published 11 Bills in draft—more than ever before—and four of them have gone to Joint Committees. The Animal Welfare Bill is being scrutinised by the Environment, Food and Rural Affairs Committee of the House of Commons. We think the balance this year is about right.
Lord Lucas: My Lords, when it comes to matters that so touch on the essential function of this House and on matters where we have granted such great use of our powers in terms of carry-over and procedures, does not the Leader of the House think it appropriate that decisions on which draft Bills this House should participate in discussing should come before the House for approval, as do so many more minor matters? This seems to me to be so important.
Baroness Amos: My Lords, the noble Lord, Lord Lucas, will be aware that these matters are normally discussed through the usual channels, but, as I said in my initial Answer, this is somewhat uncharted territory. The usual channels in both Houses considered a set of proposals for pre-legislative scrutiny at the beginning of
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the Session. However, this draft Bill was not on that list and, as the result of an oversight, the usual channels were not consulted. I have apologised for that. Noble Lords will be aware that the decision has been taken that the Bill will now be considered by the departmental committee in another place. There is much for us to learn here, and I shall take that learning away.
Lord Roper: My Lords, does the Lord President accept that the arrangements which are made at the beginning of the Session are relatively successful, although this House would prefer more pre-legislative scrutiny to be carried out by Joint Committees rather than by those of one House? Will it be possible to look again at the procedures for Bills which are not on the initial list but which come up during the Session in order that we do not have another incident like this one?
Baroness Amos: My Lords, I am well aware that the House would like more pre-legislative scrutiny by Joint Committees. However, there is an overall issue of resources. There are more House of Lords Committees than ever before. In its first report in May this year, the House of Lords Liaison Committee stated:
"While not wishing to exclude the possibility of establishing additional select committees where a compelling case can be made, we are unlikely in the foreseeable future to agree to an increase in overall committee activity".
There is a real issue of resources, but I take on board the point that, where appropriate, it would be helpful to have Joint Committees and to use the considerable expertise that exists in this House. I bear in mind the point made by the noble Lord that, although we have a meeting at the beginning of the Session, we should be aware that Bills do crop up during a Session and that the usual channels should be consulted.
Lord Strathclyde: My Lords, can the Leader of the House confirm that whatever decisions are made about pre-legislative scrutiny—I agree that it is desirable that there should be Joint Committees on pre-legislative scrutiny—nothing that happens in pre-legislative scrutiny should affect the ability of this House to give full scrutiny to legislation when it comes forward in due time?
Baroness Amos: My Lords, that is absolutely right. Even where a decision has been taken by the usual channels, a formal decision has to be taken by both Houses in regard to taking forward the nature of pre-legislative scrutiny.

Intestacy
2.53 p.m.
Lord Shutt of Greetland Lord Shutt of Greetland asked Her Majesty's Government:
When the intestacy provisions will be updated so that, when a death occurs and there is no will, a surviving spouse can, in the majority of cases, continue to live in the matrimonial home.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, on intestacy, a surviving spouse is entitled, where there are children, to the statutory legacy of £125,000 absolutely and a life interest in half the remainder. Where there are no children, the figure is £200,000 and half the remainder absolutely. The Government will consult this autumn on revising the current levels of the statutory legacy, and we will set out in the consultation paper our proposals for change.
Lord Shutt of Greetland: My Lords, I thank the Minister for his helpful response. I am delighted that consultation is to take place. Will the Government bear it in mind that the property that was worth £125,000 in 1993 is, on average, worth £300,000 in Yorkshire and £430,000 in central London, and that when 70 per cent of the population do not at present leave a will, there will now be considerable hardship in cases where a surviving spouse does not have the ability, by law, to remain living in the house? Will the noble Lord also consider the possibility of the figures arising from the consultation being indexed in the future? It has been 11 years since there was a change—indeed, there were only seven changes last century.
Lord Filkin: My Lords, the first two issues and many others will certainly be considered in the consultation paper on increasing the statutory levels. Indexation is an interesting issue and the Government will be reflecting on that as part of subsequent reviews. The priority, at this stage, is to look at the current statutory levels and see if, as I think is self-evident, they require adjustment upwards.

Jury Service Exclusion
2.55 p.m.
Lord Livsey of Talgarth Lord Livsey of Talgarth asked Her Majesty's Government:
Whether they will modify provisions in the Criminal Justice Act 2003 so that individuals in positions of key importance can be excluded from jury service.
The Minister of State, Home Office (Baroness Scotland of Asthal): No, my Lords. Jury service is a key civic duty which involves the community in the administration of justice. The changes we have made mean that one's occupation is no longer, in itself, grounds for not serving. That is why judges, Members of another place and of your Lordships' House, including Ministers, are expected to serve. By expanding the pool of potential jurors, we ensure that juries better reflect the communities from which they are drawn.
Lord Livsey of Talgarth: My Lords, perhaps I had better preface this question by saying that I have no direct legal interests or direct interest in the NHS. As the Minister fully appreciates, the impact on crucial
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key services of the imperative in Schedule 33 to the Criminal Justice Act 2003 has resulted in the eligibility and appointment of jurors from key occupations in society. That includes barristers, solicitors, GPs and hospital consultants.
In one case, a single-handed GP had to close down her surgery for weeks; in another, a barrister was called for jury service in his own court's area; and, in another, a hospital consultant was appointed to a jury, with the resulting cancellation of operations. In another case, a judge was appointed to a jury. I do not know what the other jurors thought of that. The result is even longer waiting lists for the NHS and court cases. Will the Minister re-examine this matter? It has quite an impact on important aspects of society and services.
Baroness Scotland of Asthal: My Lords, I understand the concern that the noble Lord has raised. That is precisely why the officer has discretion, if someone cannot make a particular date, to postpone it. It can be postponed for any time during a 12-month period. The noble Lord is quite right. Lord Justice Dyson had the delight of serving on a jury during the summer, at a time convenient to him.
Lord Renton: My Lords, bearing in mind that many jury cases these days occupy many weeks of government time, can the noble Baroness assure us that a person who has heavy responsibilities to bear, apart from sitting on a jury, would be exempt?
Baroness Scotland of Asthal: My Lords, no one save Her Majesty is exempt from jury service. However, I can certainly assure the noble Lord that if there is an exceptionally good reason why a person cannot serve within the 12 months, that will be considered and information provided about it will be taken into account before a date is fixed. I hope that your Lordships will be grateful no longer to be excluded from this wonderful opportunity, bearing in mind that we are no longer in the company of lunatics and others.
Baroness Anelay of St Johns: My Lords, will the noble Baroness take this opportunity to join me in recognising the tremendous service that is done for and on behalf of all of us in the community by those who put jury service before their own convenience? Does she recall from her experience at the Bar the tremendous inconvenience that some people gladly suffer? Perhaps in the future many noble Lords will gladly suffer that inconvenience too.
Baroness Scotland of Asthal: My Lords, I agree with the noble Baroness absolutely and without any reservation whatever.
Lord Mackie of Benshie: My Lords—
Lord Tordoff: My Lords—
Noble Lords: Cross Bench!
Lord Ackner: My Lords, is there not a risk that jury trial, which has been strongly emphasised in recent

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days, is, to some extent, eroded by the presence of a judge on the jury? When it comes to the jury deciding who should be the chairman, clearly there is an obligation upon, I should have thought, the judge to admit what his occupation is. If the other members of the jury then say to the judge, "You know all about this. You can preside", they will be directed by a professional for the second time. They cannot be told, "Members of the jury, it is entirely a matter for you", because the judge is one of them. Is this not an indication that at least the judge, for the benefit of the administration of justice, should not be put on a jury?
Baroness Scotland of Asthal: My Lords, I hear what the noble and learned Lord is saying, but I regret to tell him that the esteem in which the profession was hitherto held is not quite what it was. The experience of our American brethren is that jurors are quite robust in exercising equality of arms on the jury and the judge does not necessarily have an undue influence. It has worked quite well.
Lord Tordoff: My Lords, is it not the case that, much as Members of your Lordship's House would wish to serve, many of us are over 70 and people are debarred from serving if they are over 70? May one hope that that will change?
Baroness Scotland of Asthal: My Lords, there is no indication at the moment that we are minded to change the rule in relation to 70. Some people think that after the age of 70 one should be given one's liberty.
Lord Skelmersdale: My Lords, will the Minister further explain one of her supplementary answers? How can a hospital consultant with the inevitable waiting list of patients find a time within 12 months convenient to them to serve on a jury?
Baroness Scotland of Asthal: My Lords, if the name comes out of the hat it is possible for dates to be fixed that are convenient to that consultant. If we are told well in advance, most of us have one or two weeks when we can make ourselves available to discharge our public duty. However, if a person can genuinely show that there is no period within the next 12 months when they could reasonably be expected to attend—for good and exceptional reasons—they can be excluded, but the presumption is that everyone, if called upon, should serve.
Lord Mackie of Benshie: My Lords, will the Minister tell us how many trials are delayed each year because of some objection to a particular person—a judge or otherwise?
Baroness Scotland of Asthal: My Lords, I cannot tell the noble Lord how many are delayed for that reason. I do not know whether the noble Lord means delayed through lack of a jury. I have no knowledge of any trial being delayed because there are not sufficient jury members to attend. However, I will investigate the matter and see if there are any such figures.
Viscount Bledisloe: My Lords, although jury service is obviously an important duty for a citizen, are there not several types of people, some of whom have already been mentioned, who perform services for the community that outweigh the value of jury service—perhaps, not to be controversial, the Prime Minister or distinguished consultants? The Minister pointed out that they can have their jury service postponed. Surely, the only consequence of that would be either that they do their jury service during their limited holiday or, at some stage, they are not available to do their operations. Should there not be some balancing when the other duties that they perform are of greater value to the community than jury service?
Baroness Scotland of Asthal: My Lords, as I have tried to make clear, the summoning officer has the discretion. If the person summoned can demonstrate that there is some exceptional reason why they should not serve, albeit during their holiday, I am sure that that would be listened to. However, I can reassure the House that my right honourable friend the Prime Minister is not exempt.
The Countess of Mar: My Lords, would those exceptional circumstances include someone who is the sole carer for a sick, elderly or disabled person and who has neither option nor holiday most of the time?
Baroness Scotland of Asthal: My Lords, I cannot specify, but I would have thought that all such considerations would be taken into account. That is why the summoning officer has been given a discretion. The provision has removed the bar that was absolute. It used to be said that the people not able to sit on the jury were those who were mad, bad or a Member of your Lordships' House.
Lord Clinton-Davis: My Lords, does my noble friend agree that there ought to be some sort of appeal? If the officer considering such a matter behaved aberrantly, should there not be a right of appeal?
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord is saying, but to date there has been no indication that summoning officers have been so inhumane, unfeeling or lacking in discretion that they have inappropriately taken into account that which they should not have taken into account. So far, we think that it should be clear that everyone—other than Her Majesty—has a public duty which we will be called upon to exercise.
Baroness Kennedy of The Shaws: My Lords, does the Minister agree that comparing us with the United States in this area does not work? In the United States it is possible to challenge jurors. That is not possible here in the United Kingdom and certainly not in the jurisdiction of England and Wales. In the United States, challenges are made to those who come forward who are judges, especially in criminal trials.

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Therefore, does the Minister agree that to compare us with or borrow from the United States may lead to unfair comparisons?
Baroness Scotland of Asthal: My Lords, I know that there is that distinction, but the noble Baroness will know that, on many occasions, a choice was made not to challenge a jury. We got rid of peremptory challenges quite a time ago. The noble Baroness will know that there was a big concern at the time that that would lead to injustice. We know that it has not. We are confident about those who are called. I have the utmost faith in the members of our judiciary that they will deport themselves appropriately. I do not think that the arrangement is likely to cause a great deal of difficulty. We have not seen any so far.
Lord McNally: My Lords, may I make it clear that if the noble and learned Lord the Lord Chancellor turns up on any jury on which I am serving, he will not have my vote for chairman? That apart, will the Government hold their nerve? Surely, the reason for these reforms was the skill of the professional classes in avoiding jury service which was doing great damage to the system.
Baroness Scotland of Asthal: My Lords, the noble Lord makes a valid point indeed.
Noble Lords: Oh.
Baroness Scotland of Asthal: My Lords, I referred to the noble Lord's last point. I could not possibly agree with or comment upon his assertion in relation to my right honourable and learned friend the Lord Chancellor. I heard what was said from behind, but I am sure that the noble Lord, Lord McNally, would not seek the chairmanship or foremanship himself on any prospective jury. However, the noble Lord makes a valid point. Jurors are supposed to be a jury of one's peers, not simply a jury of those who are willing. We need a broad spectrum and representative number of people on our juries if we are to get a balanced and proper decision made.
Lord Thomas of Gresford: My Lords, the Minister refers to the discretion of the summoning officer; but she will know that in long cases, the judge frequently excuses people who have holidays that are booked, who are carers, who are proprietors of sole businesses, and so on. Is anything that she says today intended to interfere with that discretion?
Baroness Scotland of Asthal: My Lords, I do not think that it is intended to interfere with that discretion. What I am saying is that all those points should properly be put, under the new system, to the summoning officer, who would then exercise a discretion to exclude.

North East Regional Assembly: All-postal Ballot
3.10 p.m.
Baroness Hanham Baroness Hanham asked Her Majesty's Government:
Why, in light of the Electoral Commission's report of 27 August, they propose to proceed with an all-postal ballot in the referendum for the North East Regional Assembly.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, it is in the light of the Electoral Commission's report as published on 27 August in relation to the North East Regional Assembly referendum that the Government are proceeding as planned.
Baroness Hanham: My Lords, does the Minister not agree that with the Electoral Commission's report, the Government have now comprehensively lost the argument about all-postal voting? Does he not agree that the one that will take place in the north-east can do so only on the basis that the Government bounced Parliament into a decision before the Electoral Commission was able to report on the all-postal pilots? Has the Minister noted the Electoral Commission's position that it can offer no reassurances that the ballot in the north-east will be risk-free? Does he not now wish that he had left untampered with the position of voting in this country?
Lord Rooker: My Lords, I can only draw the noble Baroness's attention, and that of the House, to the report of the Electoral Commission, published on 27 August, which I presume that she has read. The fifth paragraph of the report made the matter quite clear when it said:
"In relation to the North East referendum, our conclusion is that the referendum should proceed as an all-postal ballot without major changes to the process".
The Electoral Commission gave a series of other reasons why it believed the north-east referendum should proceed, including the fact that Parliament had approved the orders and that counting officers are currently making the necessary arrangements. It said that no evidence had been found,
"that an all-postal referendum in the North East would be unsafe in terms of fraud or malpractice".
The commission also said that:
"Voters and election professionals in the North East have substantial previous experience of all-postal ballots".
and that the,
"public is more positive about all-postal voting £hellip; in the North East".
That is the position. The Electoral Commission said that its conclusion was that what was planned for the north-east should proceed, and that is what is going to happen.
Baroness Maddock: My Lords, given that the ballot will be all-postal in the north-east referendum in the

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autumn, could the Minister ensure that there are sufficient drop-off points within rural Northumberland to ensure that people do not have to travel long distances? Noble Lords will know that I am married to the Member for Berwick-upon-Tweed. In that role, I drive him round every year on his surgery tour of his constituency. Last week, many people asked us whether we could get something done to ensure that people had the opportunity to drop off their postal vote in person and not travel too far.
Lord Rooker: My Lords, the short answer to the noble Baroness's question is, yes. I cannot give precise numbers, but those matters are being considered. The matter was raised on 22 July—that there will be sufficient drop-off points for people to place their ballot paper, which they have received by post, at an appropriate and convenient location.
Lord Renton of Mount Harry: My Lords, broadening the subject slightly, could the Minister tell noble Lords what, other than political considerations, are the criteria by which the Government decide on having referendums on regional assemblies in some parts of the country but not in others?
Lord Rooker: My Lords, I know that I shall get myself into trouble with the noble Lord for saying this, but a few weeks ago the powers that be in this place sent everyone a note that said that supplementary questions should be confined to the subject of the original Question. I have nothing to add to what I have already said.
Baroness Knight of Collingtree: My Lords, on the particular Question that the House is addressing, how concerned is the Minister about the clear allegations of fraud in Birmingham in particular—a place that he and I know well? Is that not something that has greatly concerned the people of Birmingham, because the proof seems to be very clear?
Lord Rooker: My Lords, I do not want to fall out with the noble Baroness either, but I quote again from the report of the Electoral Commission, to be found on its website. It says:
"To the Commission's knowledge, no allegations of electoral fraud made in the North East in relation to the June all-postal pilot scheme have led to formal prosecutions".
It is the most risk-free area of the country. I am not in a position—for the reasons that I have just given, notwithstanding the fact that I am not briefed on the issue—to speak about anything other than the northeast referendum.
In relation to the earlier question that I was asked, our intention is to have one drop-off point for every 50,000 voters, and more at the counting officer's discretion—so at least the constituencies would be covered.
Lord Goodhart: My Lords, taking into account the Electoral Commission's report, do the Government
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have any proposals to go forward with further all-postal pilots in the local elections next year, given among other things that that is a very possible date for the next general election?
Lord Rooker: My Lords, all that I can say on that matter is that at some time during the course of next week my right honourable friend Nick Raynsford will make a Statement in the other place in relation to the other two regions.
Lord Lawson of Blaby: My Lords, the Minister has just asserted that the north-east of England is the most risk-free area of the entire country. What is his evidence for that statement?
Lord Rooker: My Lords, as I have said, that matter is dealt with in the two-page report of the Electoral Commission on its website. That region has more experience, because there have been more postal pilots in the north-east region than any other region in the country. Bearing in mind that it is quite a small region in terms of percentage of population, the figure is quite high. As I have said, the commission's report states:
"To the Commission's knowledge, no allegations of electoral fraud made in the North East in relation to the June all-postal pilot scheme have led to formal prosecutions … The public is more positive about all-postal voting",
in that area.
With all the background and reasons given in the Electoral Commission's report, it also makes the point—I accept this—that Parliament had already approved the issue. However, the Government said that if there was opposition by the Electoral Commission, we would not proceed. That is what we meant; but it has turned out not to be the case with regard to the north-east.
Lord Clark of Windermere: My Lords, would my noble friend the Minister confirm to the House that the Electoral Commissioner has actually endorsed Parliament's decision to go ahead with an all-postal ballot for the referendums in the north-east?
Lord Rooker: My Lords, yes, that is precisely the point that is made in the Electoral Commission's report.
Lord Redesdale: My Lords, the Minister has already stated that it is up to the returning officer to allow one drop-off point for 50,000 people, but that more could be arranged. As parts of Northumberland are the most sparsely populated areas in England, could a geographically rather than numerically based drop-off point be arranged? Where I live, people could travel 30 miles to a drop-off point and still not meet that figure of 50,000.
Lord Rooker: My Lords, we have every confidence in the professional work of the counting officers to make an absolute success of this referendum and make sure that it is as convenient for people as possible. It is different from the June election, in that it is a

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referendum and therefore not about personalities or candidates. It is in everyone's interest that everyone has the right to participate, so everyone will get a postal ballot, and it will be ensured that the ballots are delivered and printed properly. We have every confidence that the counting officer will make available drop-off points for ballot papers at convenient locations in sparsely populated areas.
Baroness Hanham: My Lords, does the Minister agree that the Electoral Commission's key recommendation was that there should never again be an all-postal ballot in this country? Does he not agree that the Electoral Commission in its opening statement said that it was able to go along with the north-east all-postal ballot only because the Government had already had that passed through Parliament? It did not give a ringing endorsement of that ballot; it said that it could give no reassurances that the ballot would be safe. Does the Minister agree that that is against the background of the recommendation that there should never again be an all-postal ballot in this country.
Lord Rooker: My Lords, with due respect, if that was the issue that the noble Baroness wanted to raise, she should have asked that question. The Question she asked was specifically about the north-east, where there is going to be one referendum. There are no referendums planned elsewhere.
I do not want to mislead the noble Baroness on the commission's report, which is only two pages long. It made the point that:
"In relation to the North East referendum, our conclusion is that the referendum should proceed as an all-postal ballot without major changes to the process".
It then went on to say:
"In our view, it would be a far greater risk to the process if significant changes were to be made now than if the referendum were to continue as planned".
The document also states:
"Our judgment is also based on a number of additional factors that are specific to this referendum. These are as follows:".
The document listed some of the points that I made earlier; namely, Parliament had approved the order; counting officers are making the necessary arrangements; the form of the postal balloting for the referendum is different and an improvement on the piloted form in June; there is no evidence that an all-postal referendum in the north-east would be unsafe in terms of fraud and malpractice and the relevant voters have experience of all-postal ballots. All those reasons were given in the report to justify its conclusion that the referendum should proceed.
The Earl of Northesk: My Lords, will the Minister confirm that the Government have endorsed the findings of the Electoral Commission by withdrawing the regulations in respect of the other two areas?
Lord Rooker: My Lords, that cannot be the case because we did not move the regulations on 22 July, which, of course, was five weeks before the report was received and published.

Afghanistan: Harrier GR7s
3.21 p.m.
Lord Garden Lord Garden asked Her Majesty's Government:
What role they envisage for the six Harrier GR7s that are to be deployed in Afghanistan.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Harrier GR7s deploying to Afghanistan will provide, first, close air support both to coalition forces and to the International Security Assistance Force (ISAF); secondly, a reconnaissance capability to support ISAF; and, thirdly, air presence patrols as part of ISAF's support for the security of the Afghan elections.
Lord Garden: My Lords, I am most grateful to the Minister for that Answer. I am sure that we all wish the crews undertaking this task well at what is an important time in Afghanistan. Hamid Karzai and Jaap de Hoop Scheffer, the NATO Secretary-General, asked for more troops and more helicopters. Can the Minister tell us how many of those we have at the moment in Afghanistan supporting ISAF, and how he intends to increase them ahead of the election?
Lord Bach: My Lords, as I understand it, a number of other aircraft are already in Afghanistan. There are American aircraft and Dutch attack helicopters. We were also invited to provide some aircraft. As I understand it, there are two Lynx helicopters in Afghanistan at the present time. I do not think that anyone, least of all those in Afghanistan, could accuse the United Kingdom of not playing its absolutely full part in trying to bring that country back to freedom.
Lord Astor of Hever: My Lords, can the Minister confirm that this deployment will not delay the upgrading of the GR7s to the GR9 standard?
Lord Bach: Yes, my Lords.
Lord Craig of Radley: My Lords, will the Minister remind the House what reductions in the Harrier force, all types, are in prospect? Are those reductions additional to the withdrawal of fast jet aircraft announced by the MoD on 20 July, which included the whole of the Jaguar force?
Lord Bach: My Lords, no reductions were made to the Harrier force as a result of the recent White Paper.
Lord Mackie of Benshie: My Lords, will the Minister answer the question asked by my noble friend Lord Garden; namely, are we providing the necessary increase in forces for the elections?
Lord Bach: My Lords, as I believe noble Lords know, the position in Afghanistan generally is fragile. Both the coalition and NATO are doing everything that is within our power to make sure that that fragility

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does not break. That is why it is so important that the elections for the presidency of that country to be held on 9 October go ahead and are seen, as far as is possible, to be free and fair. As I understand it, all requests that have been made have been answered; certainly, the United Kingdom has done that.
Lord Tomlinson: My Lords, while it is right and proper that we are playing our full part through NATO in helping in the sad situation in Afghanistan, will my noble friend use his influence with other countries and other parts of government to make sure that we have a clear strategy for the destruction of the poppy harvest, which accounts for 30 per cent of the Afghan gross national product at the present time, as without that destruction there will be a continual fuelling of the warlords and a continuing financing of terrorism?
Lord Bach: My Lords, I am grateful to my noble friend for raising that issue. He will know that our policy is to assist the Afghans in eliminating the cultivation of opium. Our country is the G8 nation with lead responsibility for assisting the Afghan Transitional Authority in countering the narcotics industry in its country. With other nations we are providing a range of support to the Transitional Authority. This includes helping to develop Afghanistan's own counter-narcotics capabilities and institutions, to reduce drug use in that country and assisting with its economic reconstruction to provide alternative livelihoods for poppy farmers.
Lord Redesdale: My Lords, I estimate very roughly that the six GR7s which are to be deployed will need ground crew of about 350 personnel. How many soldiers will be needed to protect that ground crew, or are they expected to protect themselves? Will the RAF Regiment be deployed in that role? Is its future still under threat?
Lord Bach: My Lords, the regiment's future is not under threat. I think that the noble Lord knows that. We are deploying temporarily 53 Field Squadron (Airfield Support) Royal Engineers, who are based at Waterbeach. They will carry out some minor work necessary to operate the Harriers from Kandahar airfield. Initially, we shall deploy some 315 members of the Army and the RAF altogether, but that should eventually settle at a detachment of about 230 personnel. Of course, the protection of all those troops will he of fundamental importance.
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
3.28 p.m.
Report received.
Clause 1 [Pension and compensation schemes: armed and reserve forces]:
Lord Morris of Manchester Lord Morris of Manchester moved Amendment No. 1:
Page 1, line 14, at end insert—
"( ) 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,
"that war widows pensions are paid when death is deemed to be due to service, and that the widow has to raise only a reasonable doubt for claims to succeed".—[Official Report, 22/1/04: col. 1138.]
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:
"Under the existing scheme, it is for the Secretary of State to show beyond reasonable doubt that Service has not played any part in causing or worsening the condition for which a claim is made. Under the new proposals, the standard of proof is changed to a 'balance of probabilities' with the onus of proof on the claimant to make the case".
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.
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:
"We have now joined with the Royal British Legion to consider the methodology used".
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:
"Armed Forces personnel can be asked to die for their country, which makes compensation for injury an entirely different matter for them than for civilians.
"There can be no proper basis for comparing the Armed Forces Scheme…with schemes for other workers who simply are not exposed to anything remotely similar to the dangers and uncertainties of service factors".
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.
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,
"an exercise of this sort would be costly",
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:
"Although it crudely misrepresents the Legion—subjecting us to totally unmerited criticism—the MoD did not copy Lord Bach's letter to us".
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:
"Yet at a meeting I attended at the Department, accompanied by the Legion's legal adviser, we were told by a senior official that, if the amendments tabled by Lord Morris of Manchester are accepted, it will cost the department £200 million."
He continues:
"Of course there is another way of stating that proposition, namely that if Lord Morris' amendments are not accepted, it will cost disabled ex-service men and women—and the dependants of those who lay down their lives—the same £200 million."
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?
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.
Lord Astor of Hever: My Lords, we, on these Benches support the amendment and the noble Lord, Lord Morris of Manchester, has made an excellent case for its acceptance. I am not sure that the MoD appreciates the depth of feeling felt by members of the ex-service community regarding this issue. As the noble Lord said, service in the Armed Forces cannot be compared with other occupations. It is unique, involving unlimited liability to the demands of the Crown in protecting this country's interests. The retention of "reasonable doubt" recognises that uniqueness.
Those serving in the Armed Forces are exposed to special risks to which others in the community, including civilian public sector workers, are not. Medical knowledge is far from perfect. The aetiology of many remedial conditions is unknown. The interaction of exposure to hazards and conditions faced by service personnel cannot always be proved by them, in an environment of active service, on a balance of probabilities. Do we expect this standard of proof of them?
This is not a question about a modern standard of proof, advancements in medical knowledge, improved record keeping or what is acceptable in a civil court. It is a question of whether noble Lords consider, as a change of fundamental policy, that the burden of proof should now swing in favour of the Secretary of State, to the detriment of the serviceman or woman.
3.45 p.m.
Lord Redesdale: My Lords, these Benches also support the amendment tabled by the noble Lord, Lord Morris of Manchester, especially the moving way that he presented his case. The issue, which was mentioned by many noble Lords at Second Reading, is that the proposal is seen as being cost-neutral—therefore there will be winners and losers. The £200 million that will be saved under the new burden

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of proof will go into some of the improvements in the scheme—and we support the scheme as it is set out because some aspects of it are valuable.
The question before us is whether the safeguards are sufficient considering the real problems faced by members of the Armed Forces, who put themselves in harm's way. That is a very different situation from many others who serve us in different areas of government. We have real concerns that the Government have perhaps gone too far on this issue, which is one that I hope the noble Lord, Lord Morris, will consider pressing this afternoon and give the other place a chance to look again at the amendment.
Lord Craig of Radley: My Lords, I support the amendment tabled by the noble Lord, Lord Morris, to which he spoke so admirably. It must be realised that the cost-neutral arrangement was not just Treasury-inspired, but also reflected a view taken within the Ministry of Defence itself. This is a rare opportunity to get the arrangements for Armed Forces pensions and compensation dealt with. They should be dealt with against the concept of best practice and not just cost neutrality. I do not support the concept of changing the burden of proof, as has been proposed, because it is right that the best practice for the Armed Forces, bearing in mind their special nature and the way in which they have been treated in the past, should be for the present arrangements to continue.
Lord Dean of Harptree: My Lords, perhaps I may declare an interest as a war pensioner and I had some involvement in these matters in the 1970s when I was a Minister for war pensions. There is a big difference between the Second World War and now—and the threats which the men and women of our Armed Forces have to face. During the Second World War we were dealing, for the most part, with disciplined enemies who wore uniform and who, for the most part, observed the conventions of war. As we all know, we are now dealing with a much more dangerous and ruthless enemy who pops up all over the place and has no concern whatever for decent human standards. That is the big difference and I should thank the noble Lord, Lord Morris, and my noble friend Lord Astor, who have made clear that this difference means that the men and women in our Armed Forces are now exposed to much greater dangers than they were in the Second World War. This is therefore not the time to make it more difficult for them or their families to claim compensation.
Why do men and women join the Armed Forces even today? There are a variety of reasons, but two are always dominant. The first is pride in belonging to the best Armed Forces in the world and the second is the desire to ensure that the honour and integrity of Britain is upheld wherever their services are needed. Alas, there will be casualties, as we all know. It is a sad fact, but it is true. At least we can give to those who are casualties and to their families the knowledge that they will receive fair compensation, effective benefits and, as the noble Lord, Lord Morris, states in his amendment,
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"the benefit of any reasonable doubt".
The Minister is a kind-hearted man and I am pleased to see him in his place. I hope that on this occasion his brief does not contain the word "Resist". He has heard from all parts of the House a powerful plea against making compensation more difficult to claim. I hope that the Minister will not disappoint us today.
Lord Ashley of Stoke: My Lords, the unacceptable proposals from the Government will constitute a serious blow to our Armed Service personnel and their families and I am hard-put to understand why the Government insist on them. It may well be that such proposals are part of a disturbing pattern.
Wherever and whenever British servicemen are stationed—the Balkans, Afghanistan, Iraq and other countries across the globe and during the First and Second World Wars—Ministers of successive governments always say that they are special people doing a special job and they pay tribute to their tenacity, skill and courage. However, when it comes to discussing payments for injuries and deaths incurred in those special circumstances, it is a different story—the service personnel are not quite so special.
In the early 1980s, I began campaigning in the House of Commons for nuclear test veterans. I received negative answer after negative answer from governments. Year after year they maintained their refusals. They also maintained the bitterness and sadness of nuclear test veterans who feel that they are entitled to payment. However, governments did not see them as special people requiring compensation. I have no doubt that Gulf War veterans feel exactly the same, despite the years of efforts to give them a proper, reasonable income. If these government proposals are agreed to, we will have a fresh batch of disturbed, frustrated, angry, saddened servicemen. Will governments never learn?
The Government's argument that the proposals will lead to a fairer system is unsustainable, especially in the light of the British Legion's case, as deployed admirably by my noble friend Lord Morris. Colonel English and his colleagues have put forward clear arguments in favour of rejecting the proposals and voting for my noble friend's amendment. If we come to criticise the British Legion, we are being misled. The British Legion is a very reputable, solid, responsible organisation not given to misleading forecasts. I hope that the Government will accept its case, as do many of us in this House.
The special circumstances of the Armed Forces do not change simply because the Government have taken a fancy to what they call "modern practice". The special circumstances are, by definition, special circumstances and they impose an obligation on government to pay special awards. That is the simple, basic case and any chance to shuffle these people in with the clerks, doctors and nurses is bound to fail and is unconvincing.
The Ministry of Defence is primarily concerned with tactics—tactics over a wide range. I suggest that the best tactic for the MoD today is gracefully to accept

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this amendment, thereby avoiding a great deal of trouble for itself and for the men and women involved. The bonus in that will be that justice will be seen to be done and the people who will feel the results of the decision will be the servicemen and servicewomen.
Viscount Slim: My Lords, in Committee, the Minister was kind enough to brief me in great detail on the problems surrounding this amendment which was bound to be put forward by the noble Lord, Lord Morris of Manchester. I am afraid I was not convinced by his kind and lengthy peroration and I support the noble Lord, Lord Morris, in his amendment.
Since then, I have spoken to a large number of ex-servicemen from the war and since. The first thing they say is, "Of course, they don't trust us, do they? They are putting these new rules in place because they think we're trying to swing the lead and get away with it".
Perhaps like me, noble Lords have spoken to the excellent people in Blackpool who handle the payments. They say that one or two people do swing the lead and get through. My personal view is that it is better to pay them something and not persecute those who are completely honest.
This is an unhappy step. I hope that the noble Lord, Lord Redesdale, who has studied it in great detail and has experience of it, was right in saying that of course the £200 million will be put to good use elsewhere. I have a nasty feeling that the Ministry of Defence will breathe a sigh of relief and say, "That's £200 million off the amount of money we have been told to cut this year".
I am therefore not convinced and I ask the Minister and the Government to think again. The amendments that have been tabled are not political; they are cross-party. They are trying to do good and remember those who have been forgotten over the years in pensions and payment. I believe that they make a good Bill. No one is complaining about what will happen to the soldiers, sailors and airmen of today. They will get a good deal. I am with the noble Lord, Lord Morris, on this issue and I urge the Government to think again.
Lord Corbett of Castle Vale: My Lords, it is both sad and wrong that the Government should proceed with this proposed change in the face of opposition from the Royal British Legion and all those on whose behalf it works. The fact is that the Government have failed to make their case. They have not convinced those at whom this new scheme is aimed that it is fair and just, as opposed to what is in place at present.
It is worse than that because, as my noble friend Lord Morris of Manchester said, undertakings were given in another place to work with the Royal British Legion. The Minister shakes his head. Does he want to say something?
4 p.m.
Lord Bach: My Lords, I do want to interrupt and of course I did not want to interrupt the mover of the amendment, who chose the words that he used. But I have to say that the very serious allegations made by
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my noble friend Lord Morris concerning the Ministry of Defence's behaviour in its dealings with the Royal British Legion are denied completely. I do not think that my noble friend, whose opinions I respect very much, should simply adopt what my noble friend Lord Morris of Manchester said on this matter. There is clearly a disagreement between the two parties about the way in which negotiations did or did not take place. But I think that he would be wrong and foolish to accept all that was said by my noble friend Lord Morris of Manchester. If he has other arguments, I suspect that they are more valuable than the ones concerning the Royal British Legion's attitude towards the Ministry of Defence at present.
Lord Corbett of Castle Vale: My Lords, I hear what my noble friend has to say, but it brings me back to the first point. It is certainly not the view of the Royal British Legion that the Ministry of Defence has dealt with it properly over this matter. The Ministry of Defence rejects the arguments put forward by the Royal British Legion on the back of its analysis that 60 per cent of claimants who would have succeeded under the present rules are likely to fail under the new ones. I recall from copies of correspondence that I have seen that undertakings were given in the House of Commons to try to investigate that matter jointly with the Royal British Legion. That has not been done. As my noble friend—
Lord Bach: My Lords, I am sorry to interrupt my noble friend again. It has not been done because the Royal British Legion cancelled the meeting at which it was due to be discussed. Since then, it has said in a letter that it has no intention of doing so. That is the reason it has not been done.
Lord Corbett of Castle Vale: My Lords, again, I hear what my noble friend says but that is a completely different argument from one used earlier where my noble friend himself said in a letter dated 22 July—unfortunately it does not say to whom it was sent; we shall assume that it was to the Royal British Legion—that,
"the MOD had not offered to do its own analysis to compare with that of the [Royal British Legion]".
It goes on to say that that was mainly because of a lack of resources. Which is it? Is it not worth doing or do we not have the money to do it? I do not think that my noble friend can have this both ways.
As I said, my main point is the one with which I started: the Royal British Legion has not been persuaded with regard to this part of the changes which the Government propose to make, and I think that it is very wrong of the Government to persist in this matter without trying harder to obtain such an agreement.
I also say to my noble friend that all of us in this House and this Parliament are very proud to pay proper tribute not simply to what we ask service personnel to do on our behalf around the world but to the way in which they carry out those responsibilities. The nub of the argument in favour of the amendrnent

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is that we should take the same pride in circumstances where the health of service personnel is impaired or their medical condition worsened by carrying out those duties as we do in the way in which we compensate them for what happens to their health when they respond to the requests and the responsibilities which we place upon them.
I say to my noble friend that I think that all the voices around this Chamber should give him reason—I put it no higher—to doubt the wisdom of the Government in persisting in their opposition to the amendment.
Baroness Dean of Thornton-le-Fylde: My Lords, I rise with some trepidation because I do not fully support the speeches made this afternoon—not least that of my noble friend Lord Morris. I have taken part in this Bill from the beginning and, like many Members of this House, I too have received enormous amounts of briefing from the Royal British Legion. The impression I have had is that the Royal British Legion has not been prepared to move on this issue.
We know that it is a difficult issue and I count myself among Members of this House who want the very best for our Armed Forces—not least this new pension scheme. The scheme will cost money but it will improve the lot of service personnel and their families enormously—far more than at present. We are always being told that there are packages, and the term "cost neutral" is one that rolls off the tongue of the Treasury very easily. It is not one that I accept, particularly in regard to the defence of this country and our Armed Forces.
But the difficulty that I have with the amendment—I do not know whether my noble friend Lord Morris will push it to a vote today—is that we have not yet heard what the Minister has to say. I am concerned if the Royal British Legion has cancelled a meeting, and I have not had explained to me how the figure of 60 per cent is arrived at.
With regard to the other part of the argument, I think that there is a case for having a standard burden of proof. The Armed Forces should be treated specially and they deserve our support in this House, but there are other emergency services in this country and people who are not in the Armed Forces who work in extremely dangerous conditions resulting in injuries and lifelong ill health.
Therefore, I am rather concerned about the amendment. If it is agreed to, I am concerned about its impact on the Armed Forces (Pensions and Compensation) Bill. I am not saying that one should trade one off against the other; that is not a proper way in which to conduct oneself. Nevertheless, I think that in these situations one has to listen, and we must each sometimes take on board the arguments that are being made. I am not sure that the Royal British Legion has
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been prepared to do that. It is an organisation for which I have great admiration but it is the organisation which represents ex-service personnel.
Baroness Park of Monmouth: My Lords, first, we must remember that the forces do not have a trade union; the Royal British Legion is their trade union. Secondly, I entirely take the point made by the noble Baroness, Lady Dean, about other people who have problems.
But the point is that the problems of the Armed Forces are much greater. First, they are exposed to things such as Gulf War illness. That is not a very common illness in this country and it has taken them a long time to be heard on that issue. Secondly, precisely because they have no union and no voice, the Armed Forces need to be spoken for much more loudly. All the other groups can be spoken for by their various supporters. We are basically their trade union and we must ensure that, if this situation remains, the onus of proof rests on the Secretary of State. I say that not least because I understand that if people are to prove the point themselves, they will not be eligible for legal aid. What kind of man will, with great difficulty, try to fight the Government on the issue of Gulf War illness? Where will he get the money to fund that? Why should he have to fund himself?
It seems to me to be absolutely simple: this is a special case. We and, above all, the Royal British Legion are their voice. Other possible cases should be dealt with in their own way, in their own time and by their own pressure groups. There should be no doubt about this: we should support the noble Lord, Lord Morris of Manchester.
Lord Bach: My Lords, I shall start by making a somewhat surprising statement and I shall actually mean it. I thank noble Lords for the excellent contributions that they have made and for the depth of feeling and passion with which they have spoken on this subject. I am particularly sorry to have interrupted my noble friend Lord Corbett and I am grateful to him for giving way to me twice. I believe it was important to make those points to him. I have listened very carefully to all that has been said.
I want to argue to your Lordships why it would be a serious error for the House to use its heart rather than its head and to vote for the amendment moved by my noble friend Lord Morris of Manchester. I start by noting that no single element of the new pension and compensation schemes can or should be considered in isolation. That is the danger of this amendment. The Bill provides for a comprehensive package of new pension and compensation arrangements suitable for today's Armed Forces. The arrangements include provisions that represent considerable improvements on the current schemes. Noble Lords will know what I am talking about when I mention very significantly improved widows' and widowers' pension benefits, increased death-in-service benefits at four times pay instead of the one-and-a-half at present—noble and gallant Lords and noble Lords have argued for that in

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this House for many years—provision for unmarried partners and better focus of compensation benefits on the more severely disabled.
Many of the provisions respond to concerns about the current arrangements that have been voiced over the years. But I stress that the two schemes can only proceed together. They support and complement each other in a balanced package—I am sorry to have to use that word—designed to meet the needs of Armed Forces personnel and their families in this century. Veterans' organisations want to see the package implemented as soon as possible because of the considerable improvement in benefits, and I venture to say that the Armed Forces want to see these schemes introduced as soon as possible because they are to their benefit. Certainly the Chiefs of Staff representing the Armed Forces support the schemes.
I have to tell the House that significant changes to any area affecting either the coherence or the affordability of the schemes would inevitably cause us to look again at the overall package and might mean that we are unable to progress with some or all of the features that it currently contains. What is on offer is an overall package that redistributes resources and that better meets our manning needs and employer responsibilities.
It is just not affordable to keep the best of the old and the best of the new. If the Bill were to fall the improvements would fall with it, improvements that are clearly highly valued by many within the ex-service community and, of course, by many noble Lords who have spoken in favour of the amendment. That is why this amendment about the burden and standard of proof is so significant. If it is carried, it will have severe implications for the rest of the Bill.
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.
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:
"We accept that the compensation scheme is in need of reform and we welcome the opportunity to re-examine the arrangements".
He made the point, as he was entitled to, that:
"Since the Government came to power in 1997 the amounts paid by the Ministry of Defence in compensation claims have risen by a staggering 50 per cent.—£34 million to £104 million. The war pensions and compensations scheme for the armed forces have always been generous and favourable towards the claimant, but"
and I ask noble Lords to bear this in mind—
"the increases in the last three years alone suggest that even the armed forces are no longer immune from the compensation culture".—[Official Report, Commons, 22/1/04: col. 1504.]
I give way.
Lord Redesdale: My Lords, rather than entering into what seems to be a slightly political attack from the Front Bench opposite, I want to ask about something that has been niggling me. Regarding compensation culture, the saving of £200 million would be for false claims which would fail on that basis. Is that where the £200 million will be saved over the, I believe, 10 years? Otherwise, we are talking about £200 million, as the noble Lord, Lord Morris of Manchester, said, coming from claims failing that would be accepted at the moment. So, is the Minister saying that we are now actually getting rid of unjustified compensation culture, or is it just a change in the rules which makes the standard higher?
Lord Bach: My Lords, I promise the noble Lord, as I told my noble friend, that I will come to the £200 million in due course and answer his questions.

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I am not making a political point here. We are all concerned about compensation culture. Perhaps I am gently chiding the noble Lord, Lord Astor of Hever, but I hope in a friendly spirit. This is not a political debate in that sense. But there is a point about compensation culture. Everyone, using common sense and being realistic, knows that the Armed Forces are not immune from compensation culture and that under the present arrangements it frankly is too easy for people to claim that they have received an injury or an illness during service, whereas everyone knows that they almost certainly did not. But, because of the burden, and particularly the standard of proof, that person succeeds in their claim. That is what we are trying to stop.
Lord Marsh: My Lords, I follow very clearly the point the Minister is making. The problem is that compensation culture, or lead-swinging as one noble Lord suggested, is rampant and vast in its implications, but it is primarily, I would have thought, at its best—and this is a fact we have to face—in the public sector; whether it is the police, local government or education. The examples where it is exploited are well known. Is there any suggestion that a similar burden of proof should be placed throughout the structure, as is being suggested in this case?
Lord Bach: My Lords, I am grateful to the noble Lord. As I understand it, there is no similar burden of proof to the one found in the present war pension scheme, which we say is out of date and more prone to lead to a possible compensation culture. The noble Lord is right: it is not found elsewhere. I do not want to exaggerate the danger of this in the Armed Forces because I know, as everyone in this House knows, the immense standard of quality from top to bottom that we have in our Armed Forces.
But we must not hide our faces from reality, which is that if you do have a burden and standard of proof like this, it is a temptation, frankly, to claim under it rather than not to. There can be no doubt that it has been claimed under when it should not have been. That is the point that I ask noble Lords to consider and that I am trying to make.
I have provided to a number of noble Lords—those who came to the meeting that was advertised for lunchtime today—some kind of response to the points raised on this issue in the letter from the Royal British Legion. I know that I have gone on for quite a considerable time, but I think that noble Lords who propose and support the amendment realise that it is an important amendment. Let me say a little about the history, how it developed and why we say that the present burden of proof is no longer appropriate today.
The current burden of proof was introduced in December 1943 during the Second World War. During the early years of the war, the rules of entitlement were stringent, as they had been in the First World War, and the scheme only accepted injuries that were directly attributable to or aggravated to a material extent by service—and please note these words—"during the
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war". These rules required definite evidence in contemporary records or, where those were lacking, other definite evidence which would leave no doubt in the mind of the authorities that the disablement was due to war service. Noble Lords will immediately recognise how stringent those rules were, given the circumstances prevailing at the time.
4.30 p.m.
So, faced with a large number of claims from combat and problems with keeping and accessing records, it became difficult to apply the existing rules. Changes were therefore made to remove the onus from the claimant and to relax the previously strict evidential requirements, such that the administrative burden of establishing a claim could be reduced and thus speed up decisions. But, I remind the House, eligibility remained confined to disablement due to war service. Even when the case law expanded the definition of injury to include wounds or disease, very few claims for physical or mental illness succeeded, as the accepted medical understanding was that almost all diseases were a matter of constitution and that their very nature meant that they could not be caused by service.
In 1947, the scheme was further modified to allow claims seven years after the end of service, to cover those who had left the forces early in the war and might otherwise be unable to claim. It was not until 1949 that the war pensions scheme was changed to cover all service, not just war service. When the scheme covered only war service, which involved mostly physical injuries, the requirement to prove that service was not the cause was just not a significant issue. However, once non-war service was included, it was possible for awards to be made for conditions that were almost certainly due to non-service causes, but for which the department just could not demonstrate beyond reasonable doubt that service factors played no part.
The whole House will have sympathy for anyone suffering an illness, but I cannot agree—I invite the House to say that it cannot either—that to pay compensation for conditions that are very likely to be unconnected with service is, frankly, an appropriate use of taxpayers' money. Nor is it fair to those who really have a condition, illness or injury due to service. Such cases might, for example, include cases where ageing, constitution or lifestyle—for example, diet—are by far the most likely cause.
I hope that I do not have to tell the House that I of course recognise and support the argument that we should recognise the unique, special contribution made by the Armed Forces by having a generous compensation scheme for injury or illnesses caused by service. Independent review of our proposals demonstrates that they will deliver this. Frankly, it is important that we concentrate what resources we have on cases where service is the likely cause and, in particular, focus our provision on the seriously disabled. That is what we propose. At the same time, I want to make clear that the new scheme is not a cost-cutting exercise. Our best estimate is that its cost will be broadly the same as that of current arrangements.
Frankly, we cannot afford to improve benefits for the more severely disabled and maintain the current, generous burden of proof. I invite the House to say that we have made the right decision—as I said, it is the head, rather than the heart talking—to make better provision for the more severely disabled, but not to pay benefits in those cases where the illness, injury or death is unlikely to have been caused by service.
Before I sit down, let me turn briefly to the Royal British Legion's claim that 50 to 60 per cent of current war pensions claimants might fail if seeking compensation under the new scheme rules. Let me at once say that I am a huge admirer of the Royal British Legion. I ought to be: I declare an interest as an associate member of the Lutterworth and District British Legion and proud to be so. But I fear that that cannot stop me from saying what I am obliged to say: my colleague, the Minister for Veterans wrote to the Royal British Legion, setting out our view of its analysis.
First, we are clear that the sample used was not representative of the total spectrum of claims. To the extent that there is an issue, it appears to relate to the scheme time-limits for claims, rather than the standard and burden of proof. We think that the Royal British Legion concluded that current claims would have failed where they had been submitted more than five years after leaving service, because they would fail to meet the time limit for the new scheme. We think that that is a false, mistaken analysis. People will be made fully aware of the time limit and, in most cases, will be able to adjust the timing of their claims to meet it. I remind the House that a robust communication strategy is an integral part of the whole new scheme.
In a small number of cases, claimants will not be able to do that because their condition is late-onset or because injury or illness prevents them submitting a claim, but we have recognised that latter problem and the new scheme makes specific provision for late claims in such cases, so we are confident that time limits should not be the problem that the RBL fears that they will be.
In Grand Committee, it was suggested that if we did not accept the RBL's findings, we should at least look in detail at its analysis. We have taken that point on board and, in July, we offered to examine some of the cases used by the RBL to establish the basis on which, in its view, claimants might fail under the new scheme. I must tell the House that, unfortunately, the RBL has now declined our offer. Given that we have not been given visibility of its work, we must retain our concerns that its study did not provide a sound analysis of how past claims would fare under the new scheme.
The important thing is that the new scheme has been designed to admit all reasonable claims, including those which, for good reasons, fall outside the time limit. We believe that it will deliver a fair result, as was confirmed to the independent review carried out by the company Watson Wyatt.
The suggestion that it would cost disabled ex-servicemen and women £200 million, is, frankly, not true. The cost of the scheme will remain the same; there is no saving. We have put the money into improving benefits for the most severely disabled and to eligibility, as against the current rules for attributable benefits under the Armed Forces pension scheme. The £200 million reflects broad assessments of taking the standard and burden of proof into the new scheme; it does not cover how the new scheme would affect current claimants, but, as I said, we are confident that the 60 per cent figure cited is an overstatement.
We can see no reason why the use of the normal civil test of proof in the new scheme should disadvantage any service person whose injury or illness is caused by service. We will be monitoring the new scheme extremely closely. The Minister for Veterans, in particular, will be watching very closely to see how the new scheme works. We will look at any cases raised by the ex-service organisations, including, of course, the Royal British Legion, where it is thought that reasonable claims have failed.
It is important, in discussing the burden of proof, that we do not lose sight of the overall package that the Bill is designed to deliver. The new schemes will introduce provisions that represent considerable improvements on what is currently available. Some of those improvements were as a direct result of dialogue with the ex-service community, where it has shared its concerns and aspirations. Wherever possible, we have addressed its concerns and the final package has been welcomed by the majority of the community.
The two new schemes can only work and proceed together. They support and complement each other in a balanced package designed to meet the needs of Armed Forces personnel and their families today. If there were to be a significant change to any area of the proposals, we would have no choice but to look again at the overall package; and there is no guarantee that we could deliver the schemes in such circumstances.
I end by reminding noble Lords of two things. First, the chiefs of staff, on behalf of the Armed Forces, are in favour of our proposals. I submit that that should have some influence on this House. I very much hope that the House will reject the amendment, for the reasons that I have outlined. I apologise to the House for taking so long to respond to the amendment.
Lord Ackner: My Lords, before the noble Lord sits down, could he explain on whom the onus of proof lies in his proposals? I am not concerned with the standard. The claimant brings the claim: is the onus on him to establish the situation or is it on the MoD?
Lord Bach: My Lords, under the new scheme the onus would be on the claimant but obviously on the balance of probabilities.
Lord Morris of Manchester: My Lords, I am conscious that the House will want to see the debate concluded as soon as possible. In thanking all noble Lords who have taken part in the debate, I shall not be

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making any personal attacks. Meanwhile, I refute utterly the implication from across the House that my noble friend is a monkey.
It has been well said of him that my noble friend shows a personal commitment to helping the ex-service community. But, of course, Ministers are not always briefed to give their personal beliefs. Indeed, they do not always speak only for their departments—the Treasury is often involved.
In regard to what my noble friend has said about the Royal British Legion, I am sure that its officers will want urgently to consider the very serious allegations made against the Legion this afternoon. As at Second Reading and in Committee, my noble friend has found himself up against almost consensual support for the purpose of my amendments. My good and noble friend Lady Dean had some reservations, which I am sure she will want to discuss, with all her customary decency, with the Legion.
My intormation about what happened before, during and since their meeting at the MoD on 15 July comes from men of the highest probity. The standing in the ex-service community of Colonel English, of Tom House, its pensions officer, and of its legal adviser, Peter Knight, speaks for itself.
My noble friend referred to the letter sent by the Legion. It made abundantly clear that the Government wanted to talk about the form of words to do with the changing of the burden and standard of proof. It had already been made plain by Lieutenant-General Palmer, in his letter to the Legion, that there could be no question whatever of fundamental change in the Government's position. There has been no fundamental change, as my noble friend confirmed in his reply.
It was the revelation of the 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. How can it possibly be claimed that they were consulting on the issue when they had already made a studiedly precise calculation of the outcome? Who wants to be "consulted" about a fait accompli?
The Minister has not made anything even approaching a case for regarding the Royal British Legion's position as unreasonable. There was long delay on the department's side in arranging talks. Everyone who has taken any part in these debates is aware of Ivor Caplin's letter of last December, and that he was asked by the Legion whether the MoD had carried out any analysis of its own. My noble friend, again this afternoon, has criticised the analysis carried out by the Legion—but it is the only analysis in town. Instead of negatively criticising the Legion's analysis, the Government should have carried out one of their own.
I am quite certain that many ex-service people outside this House will want to consider very carefully what has been said this afternoon and more especially the very serious allegations made against men of the highest standing and probity who serve the Royal British Legion.
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I see no difference at all in the Government's position on this issue. They are talking about a changed form of words; they are not talking about any basic change on matters of substance. I must, therefore, seek the opinion of the House.
4.47 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 183; Not-Contents, 128.

Division No. 1

CONTENTS

Ackner, L.

Gilmour of Craigmillar, L.

Addington, L.

Goodhart, L.

Alton of Liverpool, L.

Goschen, V.

Ampthill, L.

Greengross, B.

Arran, E.

Hanham, B.

Ashley of Stoke, L.

Hannay of Chiswick, L

Astor, V.

Harris of Richmond, B.

Astor of Hever, L.

Hayhoe, L.

Attlee, E.

Higgins, L.

Avebury, L.

Hodgson of Astley Abbotts, L.

Ballyedmond, L.

Holme of Cheltenham, L.

Barker, B.

Hooper, B.

Biffen, L.

Howard of Rising, L.

Blatch, B.

Howell of Guildford, L.

Bledisloe, V.

Hunt of Wirral, L.

Bonham-Carter of Yarnbury, B.

Hurd of Westwell, L.

Bowness, L.

Hylton, L.

Boyce, L.

Inge, L.

Bradshaw, L.

James of Holland Park, B.

Broers, L.

Jenkin of Roding, L.

Brooke of Sutton Mandeville, L.

Jopling, L.

Brookeborough, V.

Kalms, L.

Brougham and Vaux, L.

Kingsland, L.

Burnham, L.

Kirkham, L.

Byford, B.

Knight of Collingtree, B.

Caithness, E.

Laidlaw, L.

Campbell of Alloway, L.

Laird, L.

Carlisle of Bucklow, L.

Lane of Horsell, L.

Carnegy of Lour, B.

Lawson of Blaby, L.

Chalker of Wallasey, B.

Lester of Herne Hill, L.

Clement-Jones, L.

Lindsay, E.

Colwyn, L.

Livsey of Talgarth, L.

Cope of Berkeley, L.

Luke, L.

Cox, B.

Lyell, L.

Craig of Radley, L.

McColl of Dulwich, L.

Craigavon, V.

MacGregor of Pulham Market, L.

Crickhowell, L.

Dahrendorf, L.

Mackay of Clashfern, L.

Darcy de Knayth, B.

Mackie of Benshie, L.

Dean of Harptree, L.

MacLaurin of Knebworth, L.

Denham, L.

McNally, L.

Dholakia, L.

Maddock, B.

Dixon-Smith, L.

Mar, C.

Dykes, L.

Mar and Kellie, E.

Eccles of Moulton, B.

Marlesford, L.

Elles, B.

Marsh, L.

Elliott of Morpeth, L.

Masham of Ilton, B.

Elton, L.

Mayhew of Twysden, L.

Falkner of Margravine, B.

Miller of Chilthorne Domer, B.

Feldman, L.

Miller of Hendon, B.

Fookes, B.

Molyneaux of Killead, L.

Forsyth of Drumlean, L.

Montagu of Beaulieu, L.

Fraser of Carmyllie, L.

Montrose, D.

Freyberg, L. [Teller]

Morris of Manchester, L. [Teller]

Garden, L.

Mowbray and Stourton, L.

Gardner of Parkes, B.

Murton of Lindisfarne, L.

Geddes, L.

Naseby, L.

591

Neuberger, B.

Scott of Needham Market, B.

Newton of Braintree, L.

Seccombe, B.

Noakes, B.

Selborne, E.

Northesk, E.

Selsdon, L.

Northover, B.

Sharman, L.

Norton of Louth, L.

Sharp of Guildford, B.

Oakeshott of Seagrove Bay, L.

Sharples, B.

O'Cathain, B.

Shutt of Greetland, L.

Onslow, E.

Skelmersdale, L.

Oppenheim-Barnes, B.

Slim, V.

Palmer, L.

Slynn of Hadley, L.

Park of Monmouth, B.

Smith of Clifton, L.

Patten, L.

Soulsby of Swaffham Prior, L.

Peel, E.

Stewartby, L.

Phillips of Sudbury, L.

Strathclyde, L.

Pilkington of Oxenford, L.

Swinfen, L.

Platt of Writtle, B.

Taverne, L.

Plumb, L.

Thomas of Gresford, L.

Quinton, L.

Thomas of Walliswood, B.

Rawlings, B.

Tombs, L.

Razzall, L.

Tordoff, L.

Reay, L.

Trenchard, V.

Redesdale, L.

Trumpington, B.

Rees, L.

Vincent of Coleshill, L.

Rennard, L.

Waddington, L.

Renton, L.

Wade of Chorlton, L.

Roberts of Conwy, L.

Walker of Worcester, L.

Roberts of Llandudno, L.

Wallace of Saltaire, L.

Rodgers of Quarry Bank, L.

Walmsley, B.

Rogan, L.

Walpole, L.

Roper, L.

Warnock, B.

Rotherwick, L.

Weatherill, L.

St John of Fawsley, L.

Williams of Crosby, B.

Sandberg, L.

Williamson of Horton, L.

Sandwich, E.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Falkender, B.

Ahmed, L.

Farrington of Ribbleton, B.

Alli, L.

Faulkner of Worcester, L.

Amos, B. (Lord President of the Council)

Filkin, L.

Fyfe of Fairfield, L.

Andrews, B.

Gale, B.

Archer of Sandwell, L.

Gavron, L.

Ashton of Upholland, B.

Gibson of Market Rasen, B.

Bach, L.

Goldsmith, L.

Bassam of Brighton, L.

Gordon of Strathblane, L.

Berkeley, L.

Goudie, B.

Bernstein of Craigweil, L.

Gould of Brookwood, L.

Bhattacharyya, L.

Gould of Potternewton, B.

Blood, B.

Grabiner, L.

Boothroyd, B.

Grenfell, L.

Borrie, L.

Griffiths of Burry Port, L.

Brett, L.

Grocott, L.[Teller]

Brooke of Alverthorpe, L.

Harris of Haringey, L.

Brookman, L.

Harrison, L.

Brooks of Tremorfa, L.

Hart of Chilton, L.

Burlison, L.

Haskel, L.

Carter of Coles, L.

Haworth, L.

Clark of Windermere, L.

Hayman, B.

Clarke of Hampstead, L.

Hilton of Eggardon, B.

Cohen of Pimlico, B.

Hogg of Cumbernauld, L.

Crawley, B.

Hollis of Heigham, B.

Davies of Coity, L.

Howells of St. Davids, B.

Davies of Oldham, L. [Teller]

Howie of Troon, L.

Dean of Thornton-le-Fylde, B.

Hughes of Woodside, L.

Desai, L.

Hunt of Kings Heath, L.

Dixon, L.

Irvine of Lairg, L.

Drayson, L.

Jones, L.

Dubs, L.

Jordan, L.

Eatwell, L.

Judd, L.

Elder, L.

King of West Bromwich, L.

Evans of Temple Guiting, L.

Layard, L.

Falconer of Thoroton, L. (Lord Chancellor)

Lea of Crondall, L.

Levy, L.

592

Lofthouse of Pontefract, L.

Richard, L.

McCarthy, L.

Roll of Ipsden, L.

McDonagh, B.

Rosser, L.

McIntosh of Haringey, L.

Sainsbury of Turville, L.

McIntosh of Hudnall, B.

Scotland of Asthal, B.

MacKenzie of Culkein, L.

Sewel, L.

McKenzie of Luton, L.

Sheldon, L.

Mallalieu, B.

Simon, V.

Mason of Barnsley, L.

Snape, L.

Massey of Darwen, B.

Strabolgi, L.

Maxton, L.

Symons of Vernham Dean, B.

Merlyn-Rees, L.

Temple-Morris, L.

Mishcon, L.

Thornton, B.

Mitchell, L.

Tomlinson, L.

Morgan, L.

Triesman, L.

Morgan of Drefelin, B.

Truro, Bp.

Ouseley, L.

Truscott, L.

Patel of Blackburn, L.

Tunnicliffe, L.

Pendry, L.

Turner of Camden, B.

Pitkeathley, B.

Uddin, B.

Plant of Highfield, L.

Wall of New Barnet, B.

Prosser, B.

Warner, L.

Prys-Davies, L.

Warwick of Undercliffe, B.

Puttnam, L.

Wedderburn of Charlton, L.

Radice, L.

Whitaker, B.

Ramsay of Cartvale, B.

Whitty, L.

Rendell of Babergh, B.

Williams of Elvel, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5 p.m.
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 2:
Page 1, line 14, at end insert—
"( ) Any order to modify a scheme established under subsection (1) may not be made until a draft of the order has been laid before and approved by a resolution of each House of Parliament."
The noble Lord said: My Lords, Amendment No. 2 is a relatively straightforward amendment. We have seen details of the schemes going through by negative instrument. On the whole, they are satisfactory. However, there is still the capacity for subsequent modifications to be made without any parliamentary scrutiny. In theory, the Government could modify the whole scheme by changing from defined benefit to defined contribution. We argue that any modification should be by affirmative procedure. I look forward to some reassurance on that point from the Minister. I beg to move.
Lord Hodgson of Astley Abbotts: My Lords, this is familiar territory for those of us who were involved in Grand Committee. But, as my noble friend has pointed out, a fundamental change is proposed; namely, changing a defined benefit to a defined contribution. Amidst all the controversy in the country about pensions as a whole, it is the ending of defined benefit and final salary schemes that is causing so much concern. Therefore, to allow such a major change to take place with merely a negative statutory instrument must be unreasonable. It puts a coach and horses through what the Government propose in the Pensions Bill.
As I pointed out before, Security, Simplicity and Choice makes it clear that major changes—I refer the Minister to page 69, paragraphs 99 and 100—should

593
be consulted on and proper consultation and agreement should be obtained. On page 68 there is a very helpful guide where the Government set out how they see changes could be made from defined benefit to defined contribution and the sorts of procedures that should be followed—none of which are provided for in the Bill as presently drafted.
In Grand Committee, the noble Baroness, Lady Crawley, resisted the proposal for an affirmative resolution. She said:
"To do so would…make it hard to administer and maintain the scheme. It would be difficult to introduce routine changes or amendments quickly".—[Official Report, 28/6/04; col. GCS.]
I do not believe that the proposals in Clause 1 contain routine powers; nor, indeed, is it a routine change. For the reasons that I have just explained, it is a fundamental change. Defined benefit to defined contribution is a very fundamental change indeed. As regards the noble Baroness's wish to be able to do that quickly, I have no wish to see those sorts of things introduced quickly. If changes that might cause concern, upset and resentment are to be accepted, they need to be carefully thought through and scrutinised.
On those grounds, I think that the noble Baroness was wrong in the assertion she made to the Grand Committee on 28 June. I hope that the Government have taken some time to think again and will listen to my noble friend's proposal.
Baroness Crawley: My Lords, I hope that I can give noble Lords the reassurance that they seek even while I am going to resist the amendment. The approach that we have proposed, whereby the detailed scheme rules are set out in statutory instruments subject to negative resolution, is appropriate and consistent with practice elsewhere in public service schemes. As noble Lords will know, that level of parliamentary scrutiny is greater than for the current Armed Forces pension scheme where the scheme rules are laid out in Parliament simply for information.
I note that the amendment is focused on subsequent modifications to the new schemes, allowing the schemes which have already been subject to consultation and considerable parliamentary oversight to be introduced through negative resolution. I am grateful to noble Lords for the recognition that this latest amendment gives to that process.
However, I should like to reassure noble Lords that the Ministry of Defence has never taken advantage of the lack of parliamentary scrutiny schemes in the past with respect to the current schemes. We have introduced beneficial changes, including the introduction of widower's pensions, post-retirement widows' benefits and entitlement to preserved pensions. We have not, and would not, seek to introduce significant changes without informing Parliament unless that was clearly beneficial to the scheme members or simply implementing wider government policy already considered by Parliament.
As I said, we have adopted that approach to be consistent with other public service schemes; namely, police, fire service, teachers, local government and the
594
House of Commons. While service personnel do not have trade unions to negotiate with them on such issues—a point which noble Lords have raised—successive governments have recognised that the interests of service personnel are properly represented by the chain of command and, in particular, by the principal personnel officers.
That arrangement includes well proven systems to identify and explore the views of serving personnel across the age groups and ranks and has been found to work well. Further, we will continue to work closely with the ex-service community who have been closely engaged during the reviews of our pension and compensation schemes and who can be proud of the positive influence that they have had on the final schemes. In addition, the consultation requirements set out in the Pensions Bill will also apply to the Armed Forces pension scheme, which will place an obligation on us to consult members in specified circumstances.
Perhaps just as importantly, the Armed Forces Pay Review Body has agreed to provide independent validation of the new Armed Forces pension scheme. As noble Lords will be aware, the AFPRB is a well respected body, which I believe should offer the reassurance that the interests of our service personnel will be well looked after with respect to pensions, as well as pay and allowances.
On that basis, I do not consider that it is necessary for the statutory instruments which modify the schemes created under Clause 1 to receive this greater level of parliamentary scrutiny. I recognise from our Grand Committee debate on that issue that noble Lords do not wish to make the routine management of the scheme more difficult; that is what I mean when I talk about quickness and speed. But, as drafted, the amendment would make it hard to administer and maintain the scheme. It would be difficult to introduce routine amendments in an efficient fashion. They are often beneficial and simply provide compliance with wider legislative changes that have already been agreed by Parliament.
The amendment would inevitably delay implementation of beneficial change and would require Parliament to set aside substantial blocks of time on matters that do not generally merit that level of attention. No other public service scheme adopts that approach. We see no reason for the Armed Forces scheme to be treated differently from those other public service schemes.
The noble Lord, Lord Hodgson of Astley Abbots, referred to the possibility of a change of pension scheme from defined benefit to defined contribution. There are no plans to introduce a defined contribution scheme as part of the Armed Forces pension scheme that is due to go live next year. While subsection (1)(b) gives the flexibility to provide money purchase arrangements, should that be a desirable or necessary approach for future pension provision, were the department ever to consider that necessary in the future, of course we would ensure that Parliament was

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informed and that any consultation requirements were met. With that, I hope that the noble Lord will withdraw the amendment.
Lord Astor of Hever: My Lords, I thank my noble friend Lord Hodgson for his support. His point on defined benefit and defined contribution was well made, and I too agree that any changes need to be carefully thought through and not rushed.
I thank the noble Baroness for her reply. I realised that she would resist this amendment, although she has given the House some reassurance, in particular by saying that the Government would not make significant changes without notifying Parliament. I shall read her response carefully in Hansard, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Astor of Hever Lord Astor of Hever had given notice of his intention to move Amendment No. 3:
Page 1, line 14, at end insert—
"(2A) The Secretary of State may, by regulation, make provision for extra benefits to be provided for current members of the existing scheme during the transitional period.
(2B) For the purposes of subsection (2A), the transitional period is the time between the date of the new scheme coming into force for new servicemen and women and the date on which existing servicemen and women are given the opportunity to transfer."
The noble Lord said: My Lords, in speaking to Amendment No. 3 I shall speak also in support of Amendment No. 10, tabled by the noble Baroness, Lady Dean.
Lord Bach: My Lords, I am grateful to the noble Lord for allowing me to intervene, which I do not think will entirely surprise him. I have already discussed this amendment with the noble Lord and with my noble friend Lady Dean. In Grand Committee we said that we hoped to give a definite and definitive answer on Report to the very proper issues that have been raised in this amendment. However, I am afraid that across government we do not yet have the final answer, which we hope will be satisfactory to both the noble Lord and my noble friend, addressing the particular issues raised. I wonder if the noble Lord would be kind enough not to press his amendment today, but perhaps table it again at Third Reading next week. At that point it is hoped that we can deal with this matter once and for all.
Baroness Dean of Thornton-le-Fylde: My Lords, my noble friend's remarks were not sprung on us and I warmly welcome his statement. I certainly support the content of Amendment No. 3 and perhaps the amendment we shall table next week will bring together the elements of both amendments. I look forward to the Minister's response at Third Reading and I hope that we shall be able to make progress on this small but very important point.
Lord Astor of Hever: My Lords, I thank the noble Baroness, Lady Dean, for her comments. We should
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certainly discuss the form of an amendment to table at Third Reading next week. I also thank the Minister for his remarks. This amendment was designed to tease out further details on the transitional problem. We are happy that the Government see the need to address this and we look forward to returning to the issue at the next stage.
[Amendment No. 3 not moved.]
5.15 p.m.
Lord Redesdale Lord Redesdale moved Amendment No. 4:
Page 1, line 14, at end insert—
"( ) Any scheme established by order under this Act shall provide mechanisms to ensure that—

(a) personnel in the armed forces who have completed 35 years' service but are not retained in service after their 55th birthday for service reasons receive pension benefits which are based on 66.67% of final salary, and

(b) a death-in-service benefit of four times salary is paid to surviving spouses or dependents."

The noble Lord said: My Lords, I apologise to noble Lords, but I was surprised at being called to move Amendment No. 4—
Lord Bach: My Lords, I should apologise to the noble Lord. It is the fault of the government side. The noble Lord did not know that there was to be a kind of stately dance between the noble Lord, Lord Astor, my noble friend Lady Dean and myself on Amendment No. 3, which meant that it would not run its course today. We should have told him.
Lord Redesdale: My Lords, I still have to apologise for being caught outside the Chamber, gloating over the earlier victory.
Amendment No. 4 is probing in nature. I want to ask the Minister to consider whether there is a possibility that the terms and conditions of the scheme could be changed by regulation. In the light of the emphasis on good practice to be applied to different aspects of the Bill, would it be possible for service personnel in the future to earn 66.67 per cent of their final salary rather than the present slightly lower figure? It is impossible to achieve the maximum salary percentage that is available in the private sector. I beg to move.
Baroness Crawley: My Lords, I had hoped that this amendment would be probing in nature because the noble Lord knows that I will resist it. However, I hope that I can give him some reassurance and explain why we believe that the present proposals set out in the Bill will be of benefit to Armed Forces personnel.
Service personnel who serve up to the normal retirement age of 55 and have served 35 years under the new AFPS will receive pension benefits comparable to those available under the current pension scheme and, as the noble Lord knows, paid much earlier that in most other schemes. Their dependants' benefits will be significantly improved. Those service personnel who wish to improve their own pension benefits will have the opportunity to purchase additional voluntary contributions; the extended accrual period of 40 years

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will provide sufficient headroom for them to attain benefits up to the current Inland Revenue limits referred to by the noble Lord, should they wish to do so.
The new Armed Forces pension scheme is designed to be equitable, treating personnel on an equal basis regardless of whether we can offer them a full career. This amendment would benefit only a limited number of service personnel who serve a full career, as the majority will have left before the new early departure point—that of 18 years' service and a minimum age of 40. It would therefore be counter to equality of treatment on the basis of age and would, in effect, discriminate between officers and other ranks where equality of treatment has been one of the key principles behind the new scheme. It might also have the effect of discriminating between men and women because of the shorter length of service enjoyed by most women.
The alternative of offering an improved accrual rate throughout service would be expensive to implement—we could be talking about a figure of £70 million—and it was agreed that other measures such as improved dependants' benefits should have priority.
I turn to new paragraph (b) of the noble Lord's amendment. The improved death-in-service lump sum of four times pensionable pay is an important feature of the new pension scheme. However, as I have made clear elsewhere, this sort of detail is more appropriately covered in secondary legislation. Nor would the amendment be viable in its current form. Additional material would be required to cover definitions of qualifying salary, of spouses and of dependants. Moreover, the noble Lord will realise that, as drafted, this proposal would exclude unmarried partners and partners registered under the new Civil Partnership Bill.
As was made clear to the Opposition during consideration of this issue in the Commons, such broad principles are not in practice viable in primary legalisation without supporting detail.
I hope that my explanation is sufficient to satisfy the noble Lord, Lord Redesdale, that he need not press his amendment.
Lord Redesdale: My Lords, I thank the noble Baroness for that response. The purpose of the amendment was to deal with the issue of good practice, which is obviously one of the aspects that this scheme is trying to achieve. It would be wrong not to highlight the fact that, under the scheme, it would be extremely difficult to achieve the Inland Revenue limit. However, having taken into account the views expressed by the noble Baroness, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Redesdale Lord Redesdale moved Amendment No 5:
Page 1, line 14, at end insert—
"(2A) The Secretary of State may by order establish schemes which award members of the armed forces expenses for—

(a) medical treatment,

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(b) surgical treatment,

(c) rehabilitative treatment, or

(d) aids and adaptations for disabled living.

(2B) Such schemes, as set out in subsection (2A) above, shall be provided to cover expenses that arise wholly or mainly as a result of disablement due to service in the armed forces and in so far as subsections (2A)(a) to (d) are not provided for, otherwise than on payment of a charge by the member, under legislation of the United Kingdom."
The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 6. If the noble Baroness is to reply, she will be happy to know that these are probing amendments. She will not immediately have to say that she is resisting them but will be able to give the reasons behind the stand that I am almost certain she will take.
Amendment No. 5 refers back to the amendments that I tabled in Grand Committee. At that stage, due to my inabilities in drafting, there was a slight confusion about the aims of the amendments I brought forward. Amendment No. 5 seeks to ascertain whether the areas referred to in subsection (2A)(a), (b), (c) and (d) of the amendment will be covered under the scheme set out in the Bill. There is concern that certain areas may not be covered by national health trusts. I hope that the Minister will say that it is envisaged that such areas will be covered, even if not by local NHS trusts.
Amendment No. 6 is also a probing amendment which relates to time limits and to deterioration. I said in Grand Committee that I would raise this issue again because I believe that one aspect of the Bill is based on the standard view of actuaries and the standard view of deterioration. Obviously a great many disabilities, such as amputations and loss of limbs, will react in certain ways, and it can be taken into account how such wounds will progress over time.
The Ministry of Defence has denied the existence of Gulf War Syndrome, but the American Government have now taken account of it. If at a future date the British Government and the MoD take Gulf War Syndrome into account as an illness, will the scheme be sufficiently flexible to deal with this syndrome and similar syndromes that may arise in future engagements? It is not my intention to press the amendment or to put the Government in a position where they have to say that they do accept it as an illness. We have asked far too many questions for me to believe that we will suddenly get an answer of that magnitude today.
The issue also has to be considered in the light of the present threat of chemical and biological agents which may be developed in areas we have not yet seen. The countermeasures to those agents are a cause of concern because, even after so many years of testing by the Government, we have so little understanding of them. The purpose of Amendment No. 6 is to elicit whether the scheme has the flexibility to deal with the variable conditions that may give rise to different levels of deterioration, which may be not only physical but mental in aspect. I beg to move.
Viscount Slim: My Lords, I hope it will be helpful if I mention that subsection (2A)(c) of Amendment No. 5

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refers to "rehabilitative treatment". In addition to the illnesses mentioned by the noble Lord, Lord Redesdale, there is also the issue of the disability of "stress" and the rehabilitation required for that. Without wishing to be rude, I believe that an investigation would show that there is not a great deal of experience of combat stress within the National Health Service, but there is one combat stress outfit outside of it. To be counselled by someone who has not been in combat is not very clever. I merely put that as a passing, helpful suggestion to the Minister.
Baroness Crawley: My Lords, I thank noble Lords for their contributions. I should say in general terms to the noble Lord, Lord Redesdale, that we believe that the scheme has the breadth and flexibility he was seeking in some of the examples he gave about the future stresses and operations that our Armed Forces may find themselves engaged in.
Amendment No. 5 seeks to introduce into primary legislation for the new compensation scheme the power to make regulations equivalent to Article 26 of the Service Pensions Order, the law governing war pensions. The proposed text of Amendment No. 5 is closely based on that article. We recognise the need to continue the provision of care in this area. However, with much of the legislation regarding war pensions remaining largely as it was during the 1940s, Article 26 is a product of its time. It was introduced when there was no universal system of support from the welfare state, including the National Health Service. Article 26 is therefore an outdated provision. Its equivalent is not needed in a scheme for the 21st century, when we have the opportunities that the National Health Service provides.
Since 1948, Ministers in successive governments have maintained that the National Health Service should be the principal route for treatment of accepted disabilities. War pensioners receive priority in the NHS for treatment of any injury or illness that was caused by service. We are seeking to secure the same approach from the Department of Health for beneficiaries under the new Armed Forces compensation scheme.
I hope that that goes some way to answering the inquiry of the noble Lord, Lord Redesdale, in regard to what happens outside the facilities of the National Health Service. We want to secure the same approach with the Department of Health to ensure that war pensioners receive priority within the NHS for any injury or illness caused by service.
The cross-departmental veterans' initiative confirms our commitment to ex-service people. It is addressing improved delivery of services for veterans, working with other government departments and the service charities and is dedicated to providing excellent service to veterans.
Under the new scheme, there will be no statutory underpinning of charity arrangements. There is no reason why such arrangements should be provided for
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in primary legislation. It would limit our ability to amend them as our understanding of the best way of caring for the conditions concerned evolves.
We understand that there are issues in relation to ex-service organisations such as Combat Stress. I should explain that "combat stress" is the name of an organisation as well as being something that many in our Armed Forces may feel. We recognise entirely the value of the work of Combat Stress and the department is in discussion with that charity and others to develop the most appropriate options for the future. I am aware that I said in July that we were in discussions. Having made inquiries of our civil servants, I understand that those discussions continued during the summer and were very active and very positive. They are designed to recognise the modern consensus in regard to the best approach to care in these areas.
I can reassure your Lordships that we see a continued major role for Combat Stress in the future, but we need to establish a way ahead that makes the best use of its valuable capabilities. That is why we are in discussion with Combat Stress at ministerial and official levels about how to take the work forward.
5.30 p.m.
I turn now to Amendment No. 6. Noble Lords will be aware that the new compensation scheme will normally make full and final awards. This reflects the position of current medical and scientific understanding, where the level of knowledge is such that the evolution of most conditions can be predicted with a high level of confidence. The initial award will therefore be designed to take account of the expected level of worsening associated with the claimed condition, and of the development of likely consequential conditions. This generous approach enables us to maximise the award from the outset and also allows the injured person to plan and move forward with his or her life.
There is a common view that injuries and illnesses are almost bound to get worse over time. Today, with the advances in modern medical management and the emphasis on rehabilitation, that is often not the case. However, there will still be conditions where significant potential deterioration can be expected. However, this will generally be predictable and definable. Our tariff-based awards will therefore be set at a level that will take account of normal levels of deterioration from the outset. Quite properly, the scheme will not take account of the effects of ageing, constitution or other post-service factors. I am sure that noble Lords would agree that this should not be the case.
However, as has been set out in the detailed framework documents, the new scheme will allow for exceptional review. By "exceptional" we mean a situation in which there has been a significant material change in people's condition above and beyond that which is already recognised in the original award.
We believe that it is reasonable to have a time limit for claims for deterioration, albeit a generous one that makes sensible allowance for any complications to

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emerge, but which also protects the scheme from the risk of paying compensation for developments which are unrelated to service. An open-ended scheme would encourage an unnecessary cycle of repeated reviews and open the scheme up to claims for conditions caused by general ageing or by events unrelated to service.
The details of the provision will be set out in the scheme rules under a statutory instrument. It would not be appropriate to include this type of detail in the Bill. To do so would make it difficult to update the schemes, requiring, as it would, amendments to primary legislation.
The noble Lord, Lord Redesdale, spoke of Gulf War syndrome. I understand that the High Court will not rule on the existence of a Gulf War syndrome. It was very clear about this when it stated:
"This court is not in a position to express any views on the merits of the dispute as to whether, according to current medical research. Gulf War Syndrome is or is not a 'single disease entity'…It has not done so by this judgment".
I am afraid that I cannot give the noble Lord any more joy about that issue, but I hope that he feels that my response to his other points is enough to enable him to withdraw the amendment.
Lord Redesdale: My Lords, I thank the noble Baroness for her full replies to the amendments. She has given me satisfaction with regard to what I wanted from them. I was particularly pleased to hear that talks are taking place with Combat Stress. I know that many noble Lords are very keen that the excellent work done by that organisation over so many years should continue. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Lord Craig of Radley Lord Craig of Radley moved Amendment No. 7:
Page 1, line 16, at end insert—
"( ) The Secretary of State may by order provide for a widow (or widower)—

(a) in receipt of benefits based on existing armed forces pensions schemes, or

(b) whose spouse was in receipt of an armed forces pension,

to be eligible for benefits available in the new pensions scheme from the date of its commencement."
The noble and gallant Lord said: My Lords, Amendment No. 7 is grouped with Amendments Nos. 9 and 14.
In earlier discussions on the Bill, Ministers relied on three arguments to say, "Nyet, nyet, nyet" and resist amendments to it. The first argument, which we heard again this afternoon, is that this is a paving Bill and it is therefore not suitable to include on the face of the Bill details about new schemes. These fall to be dealt with by secondary legislation. It has also been argued that to amend the Bill in this way would be too expensive as all public sector workers' widows would have to be included and, anyway, the scheme has to be cost-neutral, so there is no scope for increases without deductions elsewhere.
My amendment is drawn up in such a way as to overcome the first argument, and I also wish to challenge the other two. I wrote about them to the Minister on 20 July, but so far I have not seen a response. The Royal British Legion is not alone in failing to get responses from the MoD over the summer period.
My amendment provides for secondary legislation to tackle the dreadful legacy issues, which have been well aired on previous occasions. The Minister is very familiar with them. The House will have a chance to hear more about them in the debate on other noble Lords' specific amendments.
The opportunity for primary legislation on Armed Forces pensions is rare. So this opportunity to make provision for changes that might be accepted in tackling the legacy issues should not be missed. It seemed to me sensible to include an amendment to enable the Secretary of State at a future time to correct by order aspects of the legacy issues that are most deplorably unfair. I hope that the Minister will at least concede that this is a reasonable approach. My amendment leaves the initiative to the Secretary of State.
One of the inequities galling to servicemen and women is the knowledge that so far as the parliamentary pension scheme is concerned, the widow of a Member of the House of Commons receives an unabated pension, regardless of when she married her late husband. Surely it is not unreasonable to expect similar treatment for the spouses of service personnel. To claim that the parliamentary scheme is contributory whereas that for the services is not is a distinction without a difference. Service pay is abated to contribute towards the service pension, and that is calculated on the abated pay, not the notional gross pay. So there is no generosity in that.
Former state monopolies, such as coal, electricity and telephones provide for a spouse's pension, regardless of the date of marriage. This seems to be the accepted norm for today's pension schemes. Indeed, the Government have accepted it in other areas. So those who have paid their way—and some took the opportunity to qualify for a half-rate widow's pension—still find that there are very significant differences involved. For example, if a woman had married her husband before he retired, instead of receiving £11,700 per annum when he died, she would be entitled to a pension of less than £1,900—a difference approaching £10,000 per year. Figures such as these, about which many individuals have written to me—and no doubt to many other noble Lords and Members of the other place—make distressing reading.
The services deserve to be treated as a special case, and not grouped together with all others in the public service. So the claim that the cost would be around £3 billion is ridiculously misleading. I recognise that making good what those have missed out on is not realistic, but it would give enormous relief and help to those who are now well into their senior citizenship, and so reducing in numbers as the years go by, to be

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brought into the new scheme. The costs of this are marginal, relative to the £2.6 billion cash expenditure on the present Armed Forces pension scheme.
I hope that the Minister will accept that an amendment such as this, suitable to a paving Bill, is sensible and that he will give it his full support. It provides a gateway for dealing with legacy issues without recourse to new primary legislation—an insuperable obstacle for such a topic. I hope that Amendments Nos. 9 and 14 will go through but if they do not, they could still be considered at a later date if Amendment No. 7 were accepted.
If the Minister does not support this amendment, I sense that there is great resistance and no real intention to do more than consider the problems of legacy issues, and this rare opportunity to put them right will have been stubbornly resisted. I beg to move.
Lord Astor of Hever: My Lords, this is an important group of amendments and the House is grateful to the noble and gallant Lord, Lord Craig, for raising the important issue covered by his Amendment No. 7. Our Amendment No. 9 deals with the issue of another disadvantaged group—widows and widowers—who will be left out in the cold should the Bill go forward unamended. I refer to the existing non-attributable widows and those who will inevitably be created between now and the introduction of the new scheme.
Should those widows attempt to build a new life by marrying or cohabiting at some time in the future, they will have to forfeit their widows' pensions. All other widows—existing, attributable or non-attributable and survivors of registered partnerships in the new scheme—will keep their pensions for life. Widows whose husbands died for service reasons are quite properly compensated for the loss of their spouses through the compensation arrangements and they also retain their pensions for life. But a widow whose husband's death was not caused by service reasons receives no compensation. Such widows are additionally penalised by having to surrender their pensions should they remarry.
In Grand Committee, I expressed my doubts about the validity of some of the costs being quoted to implement this amendment. The Minister quoted a figure of £500 million for past service. Since this amendment only proposes paying widows' pensions for life from 6 April 2005, there can be no past service costs. The amendment does not seek retrospective action, nor does it seek to restore the pensions of those widows who have already re-married. In addition, the Minister quoted annual costs of £14 million. However, the MoD quoted £8 million—almost half the Grand Committee figure—in a memorandum to the Defence Select Committee on legacy issues for the Armed Forces pension scheme on 18 December 2002. Which figure is correct—£14 million or £8 million?
On average, only about 300 widows are created each year. Who is to know what proportion of that small number will remarry? All existing widows already have pensions in issue. There can therefore be no
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upfront additional costs. What we are talking about is a speculative guess. If the Minister's figure of £14 million is correct, it represents a tiny proportion—0.005 per cent of the £2.5 billion annual expenditure on the Armed Forces pension scheme.
How can these costs be found from within the scheme? This House has yet to see details of the transition arrangements for those wishing to transfer from the old to the new scheme, but it has already been stated in the House of Commons Defence Committee hearings that the Treasury is keen to prevent individuals from making windfall gains. That could mean that limitations are placed on the options available to servicemen—a clear breach of the principle of cost neutrality—and would result in savings for the Crown. That money could easily pay for this amendment while preserving cost neutrality. It would also right a demonstrable injustice.
In Grand Committee, the Minister told the House that,
"there is no case for treating Armed Forces' non-attributable widows differently from other public service widows",—[Official Report, 5/7/2004; col. GC6l.]
but there is every justification for doing just that. The Armed Forces pension scheme is the only one in the public sector that draws a distinction between attributable and non-attributable widows. That makes the scheme different from all the others. There is therefore no justification for suggesting that this amendment would result in a requirement for read-across. Indeed historically, whenever improvements have been made in other public sector schemes, read-across has not been deemed necessary in the Armed Forces pension scheme.
This amendment seeks to resolve a long-standing injustice. The costs could be met from within the scheme, it is not retrospective and there need not be any read-across to the rest of the public sector. It is an issue on which the Government could easily concede.
Finally, I am also pleased to support Amendment No. 14 in the name of the noble Baroness, Lady Strange. We have reason to be proud of our servicemen. We acknowledge the demands that we place on them and the sacrifices that they are called to make, including laying down their lives for this country. When that happens, they leave widows—war widows who are also unique. I will leave the rest of the case to be made in an eloquent way by the noble Baroness, Lady Strange.
5.45 p.m.
Lord Boyce: My Lords, I apologise to the House for not being here to support the noble Lord, Lord Morris of Manchester, on Amendment No. 1, which is also in my name. I was unavoidably detained in an engagement with the Armed Forces. I was pleased to see that my eloquence was not actually required in the event.
I now wish to talk about Amendment No. 9 and this small and tightly defined group of people who are already in receipt of a pension. It is worth repeating what the noble Lord, Lord Astor of Hever, said. They

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are already in receipt of a pension and the point about no upfront costs is an important one to register. As to what future costs might be, it is impossible to define. I shall be interested to hear what the Minister says in response to the noble Lord, Lord Astor of Hever, about where the costs will come from. It is not certain that all the widows will remarry anyway, which makes the group smaller still.
The new scheme recognises the injustice of not allowing non-attributable widows and indeed partners to receive for life the pension that their spouses earned—and rightly so. The principle was recognised in 2000 with attributable widows and widowers being allowed to keep their pensions for life, including with retrospection. I seriously believe that if this amendment is not accepted, we will create a new group of disadvantaged and aggrieved people for relatively little saving. Surely the Minister can agree to this small amendment by being magnanimous, not to mention taking this moral step.
Baroness Strange: My Lords, I am very grateful to my noble friend the Minister for writing to me about this amendment, and also for the helpful meetings with him. We all agree that there is much to be welcomed in this Bill for the new generation of war widows—and how we all wish there need never be one. But there does seem to be some uncertainty about detail and that concerns me, and my association. Given the lack of detail, the Ministry of Defence should give assurances that no widow or child under the new regulations will be worse off than under the old scheme. We have not seen detailed worked-out examples.
Turning to my amendment, in the year 2000 the War Widows' Association was extremely pleased to secure for its younger members—the post-1973 widows—the right to remarry or cohabit without prejudice to their attributable Armed Forces family pension. That has meant a great deal to those post-1973 war widows who have now had some freedom to rebuild secure family units with some financial stability, although in fact comparatively few of them have actually done so. However, the older ladies—the pre-1973 war widows—do not have an attributable Armed Forces pension, and so do not have this freedom. And some of them do want to remarry. I had a letter from a lady of 86 who has remarried and consequently lost her pension. Age is no barrier to love.
Those lucky enough to have the opportunity of sharing their old age with someone else must choose between loneliness with a pension or happiness without a pension. It is true that on relinquishing their pension, some will qualify for other state benefits, which will cost the Government almost as much, but they will have to apply for these themselves, and people of this older generation do not like losing their dignity by applying for state handouts. This is a strong deterrent to sharing your life with someone else; but if there were someone else at home, it might prevent some unnecessary and expensive hospital admissions. This would therefore be a benefit to society in general.
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I believe that the Government think that it would be divisive to allow these ladies to keep their war widows pension. Why? As my noble friend Lord Morris of Manchester and my noble and gallant friend Lord Craig of Radley said, the services are a very special case. These war widows are tightly ring-fenced and clearly defined, and they are the only group in receipt of this award, so there would be no need to make a read-across. From April 2005, with the introduction of the new Armed Forces pension scheme, there would be no new war widows paid the war widows pension that we are talking about.
I also understand the principle of cost neutrality. Well, Minister, I have good news for you here: all these ladies are already in receipt of their pension, so no new money needs to be found. The only possible saving would be if a few old ladies sacrificed their pensions for marriage. Is it the Government's policy to claw back money from the most vulnerable groups in society, or indeed to penalise people for marrying? Surely not. Can the Minister tell us how many widows he estimates would be involved? We have tried, but we have been unable to get exact figures which distinguish whether the lady has remarried or whether the pension has ceased because she has died.
The Minister could also of course find further assurance for the future against charges of divisiveness and ageism were he to extend his generosity to the finite group of all pre-2005 widows. Beautiful though those ladies are, not many will have the chance of meeting another Mr Right, so even if some did remarry the saving would be minimal. There would of course be no cost. As we remember with such pride the dead of 60 years ago and those who have been killed in more recent conflicts, it is surely time also to remember their widows and all war widows whose husbands sacrificed their lives for us, and extend a loving, caring hand of friendship to them.
Baroness Dean of Thornton-le-Fylde: My Lords, I speak briefly in support of the three amendments. The noble and gallant Lord, Lord Boyce, in his most courteous way chided me about my stance and said that he did not believe that one could compare the Armed Forces with the other emergency services. I was comparing them—but about the burden of proof on the legal cases for injuries. Apart from that, I entirely agree with him, especially on this particular area.
I agree with the noble Lord, Lord Astor, that this is a very important part of the Bill. When our Armed Forces personnel go away on duty, they want to know that if anything happens to them while carrying out their duty to their country, their families will be looked after. If the Bill does not contain some of the measures that are in the three amendments, it will be a very much diminished Bill and not achieve what many of us want to see it achieve.
In conclusion, on Amendment No. 14, to which I have put my name, I could not say anything in addition or better than the noble Baroness, Lady Strange, who is also a friend. She put the case most eloquently—and

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I should not like to be in the Minister's position and have to refute the points that the noble Baroness is making.
Viscount Slim: My Lords, I support noble Lords on this amendment. In Committee, I asked the Minister and other members of the Government if they would consider carefully the state of the widows pre-1973, and the fact that all of them are living on one third of their husbands' pension. That is not a state of affairs that should be countenanced in this country today—particularly in view of the fact that, as the noble and gallant Lord said, the widows of Members in another place get the full amount.
The politest way in which I can put my remarks is that Parliament seems satisfied, in this day and age, for a section of our military widows to live on one third of their husbands' pensions. Those are widows whose husbands fought in the Korean and other wars, and it is—I am almost forced to use the word—wicked that Parliament should allow such a measure to be in place today.
That matter is slightly aside from the points made by the noble and gallant Lord. I support what has been said and I believe that the amendments are very important. Speaking as one who works almost entirely among veterans, in view of the concern that they have for widows—and the great work that the noble Baroness, Lady Strange, does for widows—I believe that there should be some initiative from the Government. I am not simply blaming this Government; I was just as curt to the previous administration on this matter, who were just as much to blame for this sort of thing as are the present Government.
Even if the Minister cannot agree somewhere, somehow, within the Ministry of Defence, somebody should put his mind to the problem. There might be a bit of a crack at the Members of the other place to think not only of themselves but of others. In my generation, we were taught as officers that, come the end of the day, one looked after the mules first, because they carried the heaviest load. One then looked after one's men—and then, if there was time, one looked after oneself. I must say that I find Members of another place rather good at looking after themselves first, and to hell with the rest of us.
Lord Morris of Manchester: My Lords, like my noble friend Lady Dean, I hold the noble Baroness, Lady Strange, in high admiration. I have the very good fortune to work with her in the War Widows' Association of Great Britain, of which she is president. She is extremely proud of its membership, as I am too as vice-president.
As my noble friend Lady Dean said, the noble Baroness has made a compelling case for the amendments. She speaks not only with commitment but also great authority in this policy area. I know that the Forces Pension Society has done a very great deal to sustain noble Lords who have been supporting the purpose of these amendments. I pay tribute to them as
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well. With regard specifically to Amendment No. 9, the important point to emphasise is that it is about ensuring equity all across the scheme. I hope very much that the Government will accept that there is very strong feeling in all parts of the House in support of these amendments, and that they will offer a positive response to them this evening.
6 p.m.
Lord Bach: My Lords, I am grateful to all noble Lords who have spoken to these three important amendments. The noble and gallant Lord, Lord Craig, began to address the House in Russian, when he said nyet, nyet, nyet. For those noble Lords who understand basic Russian, as he and I do, he may be somewhat pleased to hear that my response is in the spirit of, "Nyet, nyet and da". For those who do not speak basic Russian, that means that the Government will make a concession on Amendment No. 14. I shall come to that in due course.
I turn first to Amendment No. 7. I apologise profusely to the noble and gallant Lord if his letter of 22 July has not been replied to. His letter of 19 July has been. I have checked, so far as I can while I am in the Chamber, and I am told that the officials know nothing of another letter of 22 July. I shall make inquiries immediately the Report stage ends and come back to the noble and gallant Lord. I am very sorry that the letter has not been replied to.
As regards Amendment No. 7, the new pension scheme has been designed to be broadly cost neutral. The cost of benefit improvements in some areas, such as those for widows and dependants, has been offset by a reduction in the value of benefits elsewhere, for example, the immediate pension.
Amendment No. 7 would enable the Secretary of State to provide current and future widows and widowers of current scheme members with the best of all possible worlds. If the widows and widowers of members were to be allowed to compare the benefits they receive under the current pension scheme with those under the new scheme, and to select accordingly, that would frankly increase the cost of the new scheme very significantly. It would be unreasonable to allow individuals to have a substantial improvement to their benefits when their spouse had either not accepted the balancing trade-offs in the new scheme when an active member of the current pension scheme or had never had the opportunity to do so as he or she had retired before the new scheme was introduced.
There is the further point that given the conditionality of the wording of Amendment No. 7, even if the amendment were passed there would be no immediate entitlement. Were a future government to decide to make such a change, they would not require the proposed change in primary legislation to do so. The value of the amendment is therefore unclear to us. On that basis I am afraid that I cannot agree the underlying objective of the amendment nor the need for it in terms of enabling a future government to make such a change.

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I turn to Amendment No. 9. I thank noble Lords who have spoken to the amendment. The noble and gallant Lord, Lord Boyce, spoke ironically of his eloquence not being needed as he was not present to speak to Amendment No. 1. Thank goodness he was not here; with his eloquence goodness knows what the result would have been. The noble and gallant Lord has spoken with great eloquence on the issue that we are discussing, not just today but at a social gathering that we both attended some time before the Summer Recess. However, in spite of what he said to me on that occasion, and in spite of the strong arguments that have been put today, I am afraid that I must resist Amendment No. 9. I shall try to explain why that is.
The proposed new Armed Forces pension scheme includes provision for non-attributable widows' and widowers' pensions to be paid for life. I stress that existing members can transfer to the new scheme if they wish to benefit from this provision. The new clause proposed here would extend this to current widows and widowers from April 2005, who are not provided for in the new scheme.
For the majority of public service schemes, non-attributable widows' and widowers' pensions still cease on re-marriage. This approach reflects to some extent the view of society at the time the schemes were established that wives could expect a level of financial security on remarriage so the pension of their deceased husband could safely be withdrawn. As with the Armed Forces current scheme, these pensions can be reinstated on second widowhood or divorce if the individual is otherwise financially worse off than when first in receipt of their Armed Forces pension. While we are able to make changes for the future under the new Armed Forces pension scheme, paid for by adjusting benefits elsewhere in the new scheme—that is something that I could have said with more certainty before the vote on Amendment No. 1 this afternoon— changing an arrangement for the current scheme would carry with it no offsetting saving. It would therefore be an expensive change, with retrospective effect, which together would make such a change unattractive to a government of any colour.
The debate in Grand Committee on this same amendment focused on the cost of such a change and the extent to which widows of Armed Forces personnel could be seen as a special case in this regard as compared to other public service employees. Since then I have written to a number of noble Lords and I think that I should place some of the comments that I made in those letters on the record. First, as regards cost, the one-off cost of £500 million for the Armed Forces cannot be avoided. It is a cost that would need to be paid even if payments were to be made from a future date. It reflects the relatively large numbers involved from the World War II and conscript era, and the way in which seemingly small numbers each year mount up. The overall cost of a concession would be even higher if there were to be, in addition, any backdating of payments. The figure of £500 million represents the past payments that the MoD would need to have made to the Treasury each year to buy this future widows' benefit for our members
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throughout their service. We have for many years paid annually the agreed costs of the benefits provided by the scheme through something called the accruing superannuation liability charge, but the costs of non-attributable pensions on remarriage have not been a part of that cost.
A number of noble Lords made the point at Grand Committee and today that, as the affected widows were already in receipt of pension payments, a concession would cost little. This is a highly seductive, but I argue incorrect, argument for the reasons that I have just tried to explain. While it is true that, if a widow were not to remarry we would continue to pay her pension for life, the assessed costs of the scheme on the basis of which the MoD pays the accrued superannuation liability charge takes into account the expectation that a certain proportion of non-attributable widows will remarry and thus lose their benefits. Thus a change to this policy would have a long-term impact on the costs of the scheme.
Affordability is placed in even sharper focus when the issue is looked at across the public services as a whole, which the Government consider is unavoidable. The fact that members of the Armed Forces are held in the highest regard by this House arid by all sections of the community is not in the end, I am afraid, a relevant argument in this context. The special circumstances of service life are, in my view, fully recognised in the high value benefits we are making available under the new pension and compensation schemes to the widow, widower or partner of a service person who dies of causes related to service, known in the jargon as an attributable death. These, exceptionally in the public services, will be paid for life.
I am aware of a further argument from some noble Lords that the pressures of service life justify different treatment for non-attributable Armed Forces widows; that is, where the spouse has died from causes unrelated to service. At the end of the day we cannot agree with that, nor, I am sure, would those affected elsewhere in the public service, for example, in the police force or in the fire brigades, who might reasonably argue that the pressures of their jobs can likewise put stresses and strains on an individual's health and well-being. They may be different stresses and different strains but they are still potentially very difficult to deal with. The Government do not believe that special treatment should be extended to circumstances where the pension relates to a death which is not due to service. In this case we could not in all fairness treat differently the widow of a service person and the widow of, say, a fireman, a policeman, a civil servant or a teacher. There is no basis for paying pensions for life in one case but not in the other, and if there is a basis it is not sufficient. No special case can be made for Armed Forces widows where a death is age-related or lifestyle-related, or due to a congenital susceptibility. The cost of making that concession for the public services as a whole is estimated at £3 billion, which noble Lords will understand is not currently affordable.

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In summary, even if the Armed Forces were to be treated on the issue as a special case, the MoD cost of changing the policy for the estimated 60,000 service widows and widowers affected is calculated by the Government Actuary to be £14 million a year—that answers the question of the noble Lord, Lord Astor—with a one-off cost for past service of some £500 million.
I come to a vexed question with a lot of feeling behind it. The noble Baroness, Lady Strange—I hope she will not mind me using her name in vain—argued strongly four years ago, in 2000, in debates on the then Child Support, Pensions and Social Security Bill, that attributable widows were different. The Government agreed and made exceptional change to the regulations to allow them to remarry or cohabit and keep their attributable widows' pensions. No such special case can be argued for extending that benefit to current AFPS members and those already bereaved.
I turn finally, and perhaps more happily, to Amendment No. 14, spoken to today by the noble Baroness, Lady Strange, and in Grand Committee by my noble friend Lady Dean. I shall resist the amendment as drafted, for reasons that I will explain, but I want to make it clear from the start that I am happy to support the intent behind it and will make proposals to noble Lords.
The proposed new clause seeks to amend war pension legislation to enable war widows' pensions to be paid for life for a specific group of widows and widowers. Article 42 of the service pensions order, which contains the rules of the war pensions scheme, provides that payment of war widows' pension ceases on remarriage or cohabitation. That rule applies equally to all war widows and widowers. My main argument against the change in the form in which it has been proposed is that the change might entail retrospection to benefit those who have already remarried or cohabited. Noble Lords will recognise the cost implications of such an extension, which would make the change wholly unaffordable.
Following eloquent presentation of the amendment both today and in Grand Committee, however, the Government have given very careful consideration to the issues behind it. As noble Lords will be aware, since October 2000—I have just referred to the matter—we have allowed widows and widowers under the Armed Forces pension scheme whose spouse died from causes related to service to keep their pensions on remarriage and cohabitation. In view of the exceptional position of war widows and the special needs of those whose spouses' service ended before major improvements were made to occupational benefits in 1973, we accept the argument for a change in that respect. It will apply only to future remarriages for widows and widowers whose service spouse left service or died before 1973. It would not be affordable to make the change retrospective for past remarriages.
As with the October 2000 change, the change will apply only to those who remarry or cohabit after the date of change. That means that it is not a retrospective
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concession. However, it means that those war widows who have already remarried will not benefit, although, should their position change and their pension be reinstated in future, the new rules would apply to them. I am happy to place on the record the Government's commitment to make that change for war widows. I suggest that we do it through an amendment of the service pensions order; there is no requirement to amend any primary legislation. I hope that the House will welcome that concession. The noble Baronesses, Lady Strange and Lady Dean, and many others, including the noble Lord, Lord Morris, have worked for it for a long time. I hope that they will accept credit for the part that they have played in changing our minds and achieving the concession.
6.15 p.m.
Lord Craig of Radley: My Lords, I thank all noble Lords who supported or spoke to Amendment No. 7. I suppose a nyet on my amendment has been balanced by a da for Amendment No. 14, and one da a day is better than nothing. However, I am left more than a little confused. Once again, we have had assertions that costs will be very significant, without any indication of cost. I do not find that acceptable. I hope that, when we return to the matter at Third Reading, it will not simply be said again that costs are very significant, as it is difficult to make any assessment of the real position when faced with that assertion.
I was interested when the Minister said that, for some of the issues on widows, primary legislation would not be required to help them, and that help could be given through secondary legislation. I shall read carefully what he said; I am not quite sure that I followed him clearly.
I am more than a little confused still about the £500 million. We have Sir Humphrey-speak here, dealing with internal bookkeeping between the Treasury and the Ministry of Defence, which does not seem to speak very highly for joined-up government. Again, I should like to read what the Minister said on that. I am delighted about Amendment No. 14, but I beg leave to withdraw Amendment No. 7.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 8:
After Clause 4, insert the following new clause—

COMPLIANCE WITH CODES OF PRACTICE FROM THE PENSIONS REGULATOR
The Secretary of State shall ensure that the pension and compensation schemes for armed and reserve forces comply with the relevant provisions of codes of practice published by the Pensions Regulator."
The noble Lord said: My Lords, for those noble Lords who have not attended the Committee on the Pensions Bill or did not attend the Committee on this Bill, I should say that the Pensions Bill is a massive piece of work in two volumes. It establishes a Pensions Regulator who has four clear objectives; namely, to protect the benefits of occupational schemes, to protect the benefits of personal pension schemes, to reduce the risks of situations where payouts might

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have come from the Pension Protection Fund, and—last but by no means least—to promote an improved understanding of the good administration of work-based pension schemes.
Those functions have important relevance so far as the Armed Forces are concerned, although obviously not the third of them—the risk of a payout from the Pension Protection Fund—as the Armed Forces pension scheme is a government-backed scheme. The Pensions Bill is a framework Bill being discussed at length in the Moses Room in Grand Committee, and we await large chunks of guidance notes and regulations to fill in the gaps. They will have an important read-across to this Bill for the Armed Forces.
When I introduced a similar amendment in Grand Committee, the Minister rightly chided me by saying that not all the regulations and guidance notes produced by the Pensions Regulator would apply to the Armed Forces. In that sense, the new clause that I had tabled then was deficient. I have now retabled it to insert the words, "the relevant provisions", so that it applies only so far as matters that are of importance and relevance to the Armed Forces.
I do not want to weary the House with the very special position of the Armed Forces; we have tramped that ground a good many times. The problem is not simply the danger or the conditions of service, which may require servicemen to be away from their families. It is not simply the very different career structure, whereby people tend to retire much earlier than from civilian roles. It is not even that there are three very different services carrying out three very different roles. It is, as I think that the noble Baroness, Lady Dean, said at one of our meetings, that they are broken up into small groups of people who are spread far and wide—to the four corners of the globe, a phrase which the noble Lord, Lord Morris, used earlier this afternoon. So it is critical, given the nature and structure of the careers of members of the Armed Forces, that we ensure that pension practice for the Armed Forces will be of the highest standard and therefore complies with the standards that the Government think should be applied in the private sector.
The importance of the amendment can be tested under three yardsticks. First, we had an important discussion on Amendment No. 2, tabled by my noble friend Lord Astor of Hever, which the Government rejected, about the need for an affirmative resolution for major changes to pension funds. They said that they did not want that written on the face of the Bill but that they would simply consult.
The second matter is that there are several important legacy issues in place, particularly regarding the pensions trough. If the consequences of the actions being taken had previously been properly explained, the bitterness and damage might have been avoided or at least minimised. I have received a letter from someone affected by the pensions trough which alleges that there is evidence of a deliberate attempt to keep the consequences hidden. That is somewhat parallel
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with the current pension mis-selling scandal and the penalties now suffered by Equitable Life policy holders. What legacy issues are we creating today and what requirement is there to spell out the full implications of what is being proposed?
The third yardstick is the government Front Bench's repeated assertions that we should have no concerns about those omissions. The noble Baroness, Lady Crawley said:
"We shall be obliged to follow his",
—that is, the Pensions Regulator's—
"codes of practice".—[Official Report, 28/6/04; col. GC10.]
She repeated that in remarks earlier this afternoon.
Along with other noble Lords, I had a most helpful letter from the noble Lord, Lord Bach, dated 4 July in which he said:
"I recognise that there will be consultation requirements introduced in the Pensions Bill and these will apply to the Armed Forces Pension Scheme once they are introduced. It is our intention that we will comply with these consultation requirements although as yet they have not, I understand, been specified in detail".
I do not doubt the sincerity or integrity of the two Ministers, but Acts of Parliament last a long time and Ministers come and go. Governments also come and go. I see no reason why there should be any risk in making explicit the requirement for compliance in the Pensions Regulator's relevant provisions. The Government simply cannot legally impose a series of regulations on the private sector while not accepting formally and legally a similar provision for public sector pensions. I beg to move.
Lord Astor of Hever: My Lords, I support the amendment. My noble friend Lord Hodgson has argued his case comprehensively. Essentially it is an issue of best practice. If we are to have a new Pensions Regulator under the Pensions Bill to ensure minimum standards and requirements for occupational pensions in the private sector, why should we not put a duty on the Secretary of State to ensure that the new Armed Forces Pension Scheme must also comply? The Minister may assure us that there is no need to enforce a read-across from the private sector to the Armed Forces Pension Scheme because both will be working to the same best practice model. But that has not been the case in the past. Indeed, the Armed Forces Pension Scheme has fallen short of best practice elsewhere in the pensions industry. If the Bill were to state explicitly that there will be compliance with the new Pensions Regulator it would set many minds at rest.
Lord Redesdale: My Lords, I support the amendment. It was useful that the noble Lord, Lord Hodgson, was able to sit through the proceedings on both this Bill and the Pensions Bill, with its large amount of paperwork. It is also worth noting that best practice should spread across all sectors, public and private, because we only have to look back a couple of years to realise that Crown immunity—once one of the cornerstones that allowed death in service not to be

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covered by certain other aspects, which led to abuse—had to be abolished because it was seen as inequitable in today's society. The amendment contains much sense.
Baroness Crawley: My Lords, I thank noble Lords for their interventions, and the noble Lord, Lord Hodgson of Astley Abbotts, has argued a characteristically robust case. He is amazingly cheerful, having sat through this Bill and the Pensions Bill. However, I have to tell him that I shall continue to resist his amendment.
The new Pensions Regulator will not be established until April 2005, subject to the passage of the necessary primary legislation. The regulator will issue codes of practice, some of which will be mandatory, to help pension fund trustees and other professionals understand how to comply with pensions legislation. I have noted and listened carefully to the noble Lord in his experienced observations regarding those who have fallen victim to certain pension regimes over the years and those who are bitter as a result of it. However, where the codes impact on the Armed Forces Pension Scheme, new and current, I can assure the House that the MoD will comply with their requirements. I see, still, no need to write such a requirement into primary legislation.
The various codes will provide pension schemes with the regulator's interpretation of pension law, thus assisting in improving compliance and encouraging best practice, as the noble Lord has said. Codes of practice enable legislation to be less prescriptive, while at the same time providing guidance and certainty for scheme professionals. This means that the regulatory approach is more flexible and scheme professionals will have more room to exercise their professional judgment in some areas of scheme administration. This approach responds directly to recommendations made by Alan Pickering in the Pickering report. I hope that the noble Lord, Lord Hodgson, will feel reassured enough to withdraw the amendment.
Lord Hodgson of Astley Abbotts: My Lords, I am grateful to my noble friend Lord Astor and the noble Lord, Lord Redesdale, for their support. I was not clear whether the noble Baroness was trying to use the fact that the Pensions Regulator was not to be established until 5 April next year as a fig leaf for the reason why it could not be included in this Bill. She started down that track and then her speaking notes veered away from it. Instead she followed the line that we had received assurances on the Floor of the House and in Grand Committee. I shall have a look at what Alan Pickering had to say—given that he is clearly a man of importance and relevance to this debate—and of course at what the noble Baroness had to say, and see where that takes us regarding Third Reading next week. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 11:
After Clause 5, insert the following new clause—

ARMED FORCES PAY REVIEW BODY
(1) The Armed Forces Pay Review Body ("the AFPRB") shall undertake quinquennial reviews to monitor and consult on the provisions of the armed forces pension and compensation schemes established under this Act.
(2) For the purposes of subsection (1), the AFPRB must employ specialist pension advisors.
(3) For the purposes of subsection (1), the AFPRB may take into account—

(a) any representations made to them on the workings of the schemes or on legacy issues;

(b) any other information which they think necessary.

(4) The conclusions of the review published by the AFPRB shall be submitted to the Secretary of State and laid by him before Parliament.
(5) The Secretary of State may, at his discretion, vary or accept any of the recommendations made by the AFPRB.
(6) For the purposes of subsection (5), the Secretary of State shall make a written statement to Parliament setting out—

(a) the recommendation,

(b) the AFPRB's reasons for making the recommendation,

(c) the Secretary of State's decision in relation to the recommendation, and

(d) the reason for his decision.

(7) A legacy issue shall be defined as an historical anomaly in provisions of armed forces pension schemes causing inequitable treatment of certain clearly defined groups."
The noble Lord said: My Lords, the amendment focuses on the role of the AFPRB in validating the new pension and compensation scheme established under the Bill. We had substantial debate in Committee on this matter. It was clear that noble Lords appreciated the concession in another place from the Government that the AFPRB should be given the remit of validating the scheme. We have been lucky enough to have in our midst the noble Baroness, Lady Dean, who has an unparalleled knowledge of the working and expertise of that excellent body. However, I share with the noble Baroness some concerns about the extent of the new remit for the AFPRB. For this reason, I have brought back a redrafted version of our Amendment No. 26.
First, it would reassure many of us if the role of the AFPRB in the pension scheme were explicitly placed on the face of the Bill. Our amendment would do just that. We would like more detail on how the AFPRB will assume its new role. For that reason, our amendment insists that the AFPRB employs specialist pensions advisers as set out in subsection (2). This is a vital provision. Other pension schemes have trustees. We cannot have trustees, so we are told, because there is no trust. Yet we feel there is a clear need for oversight—for governance, as it were—to make sure that the schemes are in line with best practice and meet the needs of our servicemen and women. This could be provided only by those who have extensive knowledge of the intricacies of the pension industry. Currently, the AFPRB has no such expert.
I have listened to the Minister's arguments and appreciate that it might not be appropriate for the AFPRB to oversee the old pension scheme as well. However, we believe that there is a need for the AFPRB to be open to representations from all who have comments on the workings of the schemes, including legacy issues.
I know that the Government are constrained by their own self-imposed cost neutrality straitjacket at the moment, but a future government might not be. If there were to be some spare money available, a consultation review of the AFPRB would be extremely useful in pointing out which legacy issues could perhaps be addressed. Above all, our amendment strives to guarantee that the AFPRB has qualified experts available to take on its new role of validating a pension scheme and that there is a transparent process in terms of its consultation and interaction with the Secretary of State if any proposal or recommendations are made. In this way, the AFPRB can be a vital safeguard for ensuring that our servicemen and women are adequately cared for and protected in terms of their pension rights and needs. I beg to move.
6.30 p.m.
Lord Hodgson of Astley Abbotts: My Lords, I support the amendment. I regard it as highly desirable, even essential, that if the Armed Forces Pay Review Body is to be charged with overseeing the Armed Forces' pensions generally, a formal framework should be established within which it can carry out its ditties.
We heard the Government's previous response that there was no need for this as service personnel were properly represented by the chain of command. Indeed, the noble Baroness used the phrase "chain of command" again today. I am afraid that this just will not wash. It is asking too much of a serving officer or an NCO to put forward and espouse what may be unpopular issues and views raised by junior colleagues. People may be putting their career on the line by doing so.
Without going back over ground we covered during the previous debate, there is a read-across to the private sector. As a trustee of a private sector pension fund, I would not accept that the only line of approach to me and my fellow trustees is through the line management of the company concerned. The dangers of doing so are obvious: the management shut or close off reasonable views put forward by more junior members of staff. That is why in the private sector there are employee member trustees, and it is quite right that there should be. If we cannot have employee member trustees, that is a role the AFPRB must fulfil and it needs explicit powers to do so effectively.
Finally, in Committee, the Minister and I discussed whether there were trustees for the Civil Service pension fund and he said that there were not. Of course he was right in fact but not entirely right in spirit. There is a joint consultative committee for the Civil Service pension scheme made up of unions and management. They are not trustees, but they are a consultative committee. I think that this is just what the amendment is seeking to parallel and I therefore hope that the Government will see that an important precedent already exists and that they will support it.
Lord Craig of Radley: My Lords, I support the amendment and I spoke to a similar amendment previously. However, during Second Reading I asked
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a question to which I did not receive an answer. The Armed Forces Pay Review Body is concerned with one star personnel and below, but I was not clear about how its remit would run for more senior officers.
Lord Bach: My Lords, I am grateful to noble Lords who have spoken to the amendment. It seeks to place the Armed Forces Pay Review Body's role in primary legislation and, frankly, to extend it beyond the remit announced on 30 April by my honourable friend the Veterans Minister, Mr Caplin. Noble Lords will recall the terms of that announcement.
Working alongside its current remit on pay, the AFPRB will undertake regular reviews of Armed Forces pension arrangements, comparing the pensions scheme arrangements with practice elsewhere in the economy and considering the extent to which they meet the recruitment and retention needs of the Armed Forces. It will publish its observations in an annual report and the Government will respond publicly.
Since Grand Committee, the Veterans Minister has written to Professor Greenaway, the AFPRB chairman, to seek to agree the detail of the external validation remit work. This follows discussions between my officials and the Office of Manpower Economics. The chairman will discuss the letter with other members of the AFPRB at its next meeting towards the end of the month. It would not be appropriate therefore to give further details today. However, it is reasonable to say that the work will cover the new pensions schemes and any variants, such as those for the full-time reserve service, together with the new early departure payment scheme. I am equally clear that the arrangements should not cover legacy issues for the AFPS, affecting those in receipt of pensions.
The concern of the review body is remuneration in the context of recruitment and retention of those currently serving. It operates through a system of comparability. Pension benefits of veterans are not a matter of recruitment and retention and it is difficult to see how they could be the subject of comparability with the terms paid to others who are currently employed in the UK economy. Any change to legacy issues must be a matter for political decision.
In terms of timing, we would expect that as currently planned the AFPRB would value pensions for its 2006 report in the context of that year's pay recommendations. We have proposed that this valuation should be confined to the current AFPS benefit, given that the membership of a new scheme will be small at that date. We will be at a very early stage in our implementation of the scheme. If something dramatic happens in the pensions field, however, provision is available to bring forward the review by agreement.
The next scheduled valuation would be for the 2011 report. We have proposed that unless there is evidence to suggest an earlier review, the first AFPRB validation of the AFPS should also be undertaken in 2010 for publication in 2011. The body's findings and observations on the scheme will be published in a

619
supplement to the annual report, along with any associated reports commissioned by the body as part of its work. This will be in line with normal practice.
I see no need to include the review body's role in primary legislation. It has undertaken its role with respect to pay entirely satisfactorily for many years on the basis of a non-statutory remit. Other review bodies also operate on a non-statutory remit and I see no reason to depart from this arrangement for pensions. Indeed, it would be strange to have a different approach for the one review body. For those reasons, I must resist the amendment.
There was a question from the noble and gallant Lord to which I completely forgot to reply. When the AFPRB conducts its visits relating to remuneration, it speaks to service personnel of all ages and ranks and has free access to them. The Armed Forces are encouraged to share their views and concerns. Does that deal with the point that the noble and gallant Lord was making?
Lord Craig of Radley: My Lords, I do not wish to prolong the matter now but it strikes me that the Armed Forces Pay Review Body's remit is one star and below and we are talking about pensions for all service personnel. Can I leave it that the noble Lord will write to me?
Lord Hodgson of Astley Abbotts: My Lords, before the Minister finishes, can he answer one question? If we have a joint consultative committee for the Civil Service pension scheme, why do we not have one for the Armed Forces pension scheme? Is that not what we are trying to create here?
Lord Bach: My Lords, I think that the answer to the noble Lord's probing question is that it is because we have the Armed Forces Pay Review Body, which has proved itself, as it were, in battle for many a year and there is no need to alter it.
Lord Astor of Hever: My Lords, I am grateful to my noble friend Lord Hodgson and the noble and gallant Lord, Lord Craig, for their support on this amendment. I also thank the Minister for his reply, which was very full and listed some very important points which I should like to consider. I should like to read Hansard very carefully before deciding what to do. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Amendments to Pensions Appeal Tribunals Act 1943]:
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 12:
Page 7, line 46, at end insert"—

6CA COST OF APPEALS
(1) A party to an appeal under section 6A or 6C shall be entitled to be paid the costs of bringing or opposing such appeal.
(2) An application for costs payable to a person under this section shall be made in writing to the President of the Pension Appeal Tribunal within six weeks after the determination of the appeal or subsequent appeal, whichever is later.
(3) In determining the amount of such costs, the President shall assess those on the basis that would be applied to an assessment of costs of High Court proceedings."
The noble Lord said: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 13. This amendment is intended to protect the existing rights of a dozen or so individuals whose cases each year are the subject of appeals, on a point of law, from a decision of the Pension Appeal Tribunal. As matters presently stand, an individual is entitled to paid legal representation where leave to appeal has been granted by the president either to the individual or to the Secretary of State.
The Government have been concerned about access to justice. Indeed, their most recent White Paper entitled Transforming Public Services: Complaints, Redress and Tribunals is concerned with that very issue. The amendment ensures that access to justice is retained on an equal footing.
The White Paper contemplates that individuals will not require representation on appeals on points of law. However, the individual is entitled to a level playing field. At a recent tribunal hearing—not an appeal on a point of law—the Secretary of State was represented by counsel instructed by the department's legal adviser, together with two senior representatives of the Veterans Agency. The claimant was represented by his father and a representative from the Royal British Legion.
In two other cases—both judicial reviews—the ministry abandoned its case involving the party who was legally represented and pursued the judicial review against the party who had taken no active part in the proceedings and who had no representation. Those are not the actions of a Government who wish to safeguard and protect the interests of individuals who are entitled to proper legal representation.
The Government are concerned about proportionality. In 2002, there were 2,372 appeals to the Pension Appeal Tribunal. Approximately a dozen gave rise to further appeals on points of law. That does not incur disproportionate legal costs and the Government now propose to take away the very sensible basis that has prevailed for ensuring proper and fair representation.
The Government have not adopted the proposal contained in the Leggatt report that there should be a grant of funds to the RBL for the purpose of ensuring that advice and representation can be provided. Rather, the Government's intention is to take away an existing right and benefit in order to save money and to swing the existing balance of representation away from the individual. I beg to move.
6.45 p.m.
Lord Redesdale: My Lords, I support Amendment No. 12, which is also in my name, because it goes back to some of the arguments that were raised on Amendment No. 1. A concern arises that, with the emphasis being on cost savings so that the benefits can be paid for, a certain stringent view on the amount of money that can be paid to claimants—many of them

621
justifiable claimants—will cause them not to be represented and therefore conceivably to have their cases dismissed. That will be unfair to many people who believe that the system will be working for them whereas in an adversarial system it appears that it may well be the case that there will be a different burden of proof with financial consequences if they fail to prove their case.
One issue that should not be forgotten at this point is that those who are trying to prove their case will have suffered some injury—physical or mental—and therefore deserve all the protection that can be given to them, even if that comes at a residual cost.
Lord Bach: My Lords, I am grateful to the two noble Lords who have spoken in this debate. I propose to resist the amendment. The debate on whether Schedule 1 shall stand part of the Bill will touch on many of the issues. Therefore, as I understand it, it is part and parcel of the same debate and I shall reply, if I may, to Amendment No. 13 as well.
Perhaps I may deal with the two situations to which the amendment concerning the cost of appeals would apply. I shall deal, first, with appeals from the Pension Appeal Tribunal to the Social Security Commissioners. A party appealing a decision of the Pension Appeal Tribunal will now go to the Social Security Commissioners. I should first note that most appeals before the commissioners are dealt with on paper without an oral hearing. I shall have more to say about that in a minute.
When a hearing is required, the Office of the Social Security and Child Support Commissioners will provide for the costs of those attending a hearing, such as those relating to travel and accommodation. With regard to legal costs, the Legal Services Commission provides a range of services to help claimants to prepare an appeal to the commissioners, subject to means and merits tests. For example, the Legal Help Scheme can provide up to £500 worth of advice from a solicitor. Of course, various advice agencies, such as the National Association of Citizens Advice Bureaux, provide advice for free.
That leaves the question of costs for legal representation. Outside of exceptional circumstances, legal aid is not available for legal representation in a tribunal hearing. That is because tribunal hearings are very different from a court. They are intended to operate without legal counsel. That applies equally to the department, which would not generally expect to have legal representation.
The new tribunal system is intended to be accessible and user-friendly. It is intended that people can bring their cases before a tribunal without the delay, cost and formality of a court proceeding. Commissioners are well used to unrepresented appellants and run hearings accordingly by asking questions of the parties and any attendant experts. I remind the House that the process is inquisitorial and removes the need for counsel—a need which is clearly present in the High Court.
There will, of course, be some rare occasions where it will be appropriate to fund legal counsel for a tribunal hearing. If necessary, representation before
622
the commissioners may be publicly funded through an application for a grant of exceptional funding. That can be granted where an applicant meets the standard means and merits test and the matter is of a significant wider public interest, has overwhelming importance to the client or where representation is needed to ensure a fair hearing.
The second part of the amendment concerns appeals from the commissioners to the higher courts. Appeals to the Court of Appeal in England and Wales and Northern Ireland or the Court of Session in Scotland will fall under their existing cost and legal aid regimes. Our legal aid system recognises that appeals to a court require legal representation. A person before a court may qualify for full legal aid, subject to means and merit testing. That enables legal representation for persons unable to fund it for themselves. Of course, noble Lords will know that courts have the power to award costs as they see fit.
As the existing system already provides for full legal aid and award of costs when appropriate, I do not recognise the need for any changes. In short, the Bill modernises the appeal process to make it faster, cheaper and, most important of all, more accessible for claimants. Our justice system already provides for the reasonable costs of claimants, and tribunals are intended to operate without legal representation.
In my notes on the Schedule 1 debate, I repeated much of what I have already said, but I should make a couple of points about tribunals. Having two levels of tribunals, as we intend, provides a quicker, more user-friendly and more cost-effective service to the parties involved in comparison with the court system. Tribunals have a number of strengths in the consideration of administrative disputes.
First, on participation and funding—for example, in cases where a hearing is required—concerns have been expressed about "inequality of arms". I can assure noble Lords that the system is designed to avoid just that situation. It has to be remembered that the system is designed for lay and unrepresented appellants. The commissioners go out of their way to accommodate the parties and to explain the relevant matters of law.
In a hearing the presiding commissioners will investigate the issues, as I have said, in an inquisitorial manner, not relying on arguments of opposing counsel. The department would generally not expect to have legal representations at tribunal hearings. As I have said, there are rare occasions when it will be appropriate to fund legal counsel. If necessary, representation may be publicly funded through an application for a grant of exceptional funding.
Secondly, the tribunal system has special expertise. There is some misunderstanding about the Social Security Commissioners. They are extremely senior lawyers. The statutory qualification for their office is a 10-year general qualification or to be an advocate or a solicitor in Scotland of at least 10 years' standing. They offer considerable expertise in resolving appeals from the Pensions Appeal Tribunal. Many will have had previous experience in the Pensions Appeal Tribunal jurisdiction and it is they who will initially be

623
assigned to hear appeals from the PAT. To distinguish such appeals, we shall call them the "Pensions Appeal Commissioners" when hearing appeals from the PAT. Of course, I want to make it clear that there are not many of them compared with other general matters of social security.
The third point, which I believe I have already covered, is that the strength of a tribunal system is its accessibility; it can be much more accessible than the courts. But we have changed the system so that there is an appeal, for the first time, on a point of law from the commissioner to the Court of Appeal and, if necessary and with leave, to the House of Lords in its judicial capacity. In short, we believe that what we are suggesting in terms of access to justice for claimants will be well met by the new system that is being adopted.
Viscount Slim: My Lords, in Grand Committee I asked whether we could keep the rulings simple. The excellent exposition that the Minister gave was quite difficult to understand. Thinking of an elderly claimant or a claimant in the middle of Sierra Leone who is being transported back home, or whatever, we must keep the paperwork simple so that straightaway he can get his claim on the books.
Lord Bach: My Lords, I appreciate what the noble Viscount says, but the whole point of the tribunal system is that it is supposed to be in the language of the layman. I am afraid that that cannot always be said for the courts.
Lord Astor of Hever: My Lords, I thank the noble Lord, Lord Redesdale, for his support. The cost of appeals is an issue of great concern to the Royal British Legion. I am grateful to the Minister for his very detailed reply on that issue and on the issue of tribunals. I shall consider the Minister's response carefully with the Royal British Legion before deciding what to do next. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Baroness Strange Baroness Strange had given notice of her intention to move Amendment No. 14:
Before Clause 6, insert the following new clause—

PRE-1973 WAR WIDOWS' PENSIONS ON REMARRIAGE
(1) Article 42 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 (S.I. 1983/ 883) is amended as follows.
(2) After Article (IA) there is inserted—
"Article 42(1) does not apply to a widow or widower of a member of the armed forces whose service terminated before 31st March 1973, and any pension or allowance paid to such a widow or widower (including a pension or supplementary pension paid under Article 29) shall continue whether or not the widow or widower marries or lives with another person as the spouse of that person.""
The noble Baroness said: My Lords, I thank my noble friend the Minister for his kind and generous words and all noble Lords who have spoken for me and for my ladies. I particularly want to thank my noble friends Lady Dean and Lord Astor for their magnificent support. I and all the war widows are deeply grateful. In view of the Minister's kind promises and assurances, and bearing in mind that we still have Third Reading next week, I shall not move the amendment.
[Amendment No. 14 not moved.]
Lord Morris of Manchester Lord Morris of Manchester had given notice of his intention to move Amendment No. 15:
Before Clause 6, insert the following new clause—

BURDEN OF PROOF IN CLAIMS FOR BENEFITS IN RESPECT OF DEATH OR DISABLEMENT
The power in respect of the provision concerning pensions and other grants for disablement and death due to service made pursuant to section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 (c. 5) (exercise by Order in Council of existing powers relating to benefits for death or disablement through service in the armed forces) may not on any occasion be exercised in any manner which would or might alter either the onus on any person of proof in respect of claims for entitlement to awards 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 (S.I. 1983/883) as appropriate."
The noble Lord said: My Lords, by explanation of my intention not to move this amendment, and in courtesy to the House, it might be thought that my approach in tabling both amendments was one of belt and braces. Certainly the amendment that the House has already so emphatically approved this afternoon—Amendment No. 1—is a robust safeguard of the existing burden of proof; and as I do not wish to detain the House further this evening and can, if necessary, return to the issue at a later stage, the amendment is not moved.
[Amendment No. 15 not moved.]
Lord Redesdale Lord Redesdale moved Amendment No. 16:
After Clause 6, insert the following new clause"—

POST-RETIREMENT MARRIAGES
As of 6th April 2005 widows, widowers and surviving registered unmarried partners of all service personnel shall receive a full widows' forces family pension based on their spouses or partners length of service and final salary regardless of the date of marriage or registration."
The noble Lord said: My Lords, I wish to speak to Amendment No. 16 and to support Amendment No. 17 to which my name is attached. This is one of a number of legacy issues that we have discussed at some time at earlier stages of the Bill in relation to slightly different issues. I know that the Minister will say, in those immortal words, "I resist this most strenuously", and I know that were Ito press this amendment at this late stage of the day I would have no joy whatever. I intended considering pressing this amendment, but due to the lateness of the hour and the fact that our troops have all gone home, and I would not be able to gloat over the result, it is not appropriate for me to push this matter.
Although I am being slightly flippant, the issue is a serious one and it needs to be aired. It is also one to which we shall return at a later stage of the Bill as there are a large number of pensioner widowers who have found themselves in the very problematic position of marrying post-retirement. They could be married for a number of decades and when the partner who was a member of the services dies no provision is made for them. Therefore, such people find that they may not have simply a reduced pension, but no pension at all. The difficulty is that the person who was in the services made no provision for such a partner after he died. Therefore, such people become caught in the rather difficult position of not having been able to make provision in the past.
To introduce such legislation retrospectively would produce many of the problems that retrospection has in legislation. I know that the Minister would have difficulty with that. Amendments Nos. 15 and 16 put forward the concept of a pension being enacted from 6 April 2005. Amendment No. 17 plays with semantics and tries to make the pill less bitter to swallow for the Minister, although I know he will not swallow it anyway, which is unfortunate. However, it is important to note that there are a large number of mostly women who find themselves in this position. Many are in their 60s or 70s—although not necessarily of that age—and many find themselves in a difficult position.
At an earlier stage the Minister said that the Government would be looking at legacy issues. I very much hope that that is not just a form of words and that the Minister can think again. Of course this is some years after the constraints of the schemes to which the servicemen signed up and good practice now means that certain people are not caught by this situation. I beg to move.
7 p.m.
Lord Freyberg: My Lords, Amendment No. 17 in my name is along similar lines to that tabled by the noble Lord, Lord Redesdale. It differs in one crucial respect in that it imposes an added age restriction. I should like to explain the reasons for that and stress that those who stand to benefit from the amendment are elderly service widows and widowers in their 70s, 80s and 90s who feel let down that their spouse's years of service have not counted towards their pensions. I believe that it is the responsibility of government to right injustices inadvertently created by previous legislation, and that is certainly the case here.
At present, widows and widowers of pre-1978 post-retirement service marriages receive no service pension. In this they are at a severe disadvantage to their equivalents in other public services. That is because the majority of those who served in the Armed Forces at this time were obliged to retire at or around the age of 40, while the vast majority of those in other public services retired at 60. Thus, public servants who retired in the late 1970s with the requisite pensionable years of service were able to marry or remarry up to the age of 60 and pass on a widow's pension when they died. However, during the same period, of those who
626
retired from the services, the majority had to have married by the age of 40 to be able to pass on their pension. In that respect the Armed Forces were uniquely disadvantaged.
In Grand Committee and in a subsequent letter to the noble Lord, Lord Redesdale, the Minister seemed to be under the impression that we are asking for special treatment for PRM widows. Not so; we are asking for a greater degree of parity. Is it so unreasonable for someone working in the Armed Forces to have equal rather than inferior employment rights to civil servants who never have to put their lives on the line for their country? It is worth remembering too that forces personnel have always been obliged to live for long periods in far-flung parts of the world, which puts strains on marriages not endured by those living at home and makes it harder to find marriage partners in the first place.
The reason for proposing 60 as the cut-off age for pre-1978 PRM widow's pensions is twofold. First, it would give service widows the same cut-off age as others in the public sector. Secondly, 60 is the limit for recall liability. By making the cut-off age the same as that for civil servants, the possibility of an expensive read-across is significantly reduced, something that I know concerns the Minister. Sixty is also the age limit for officers and other ranks to be called up for service even after retirement. Moreover, until 1973, when a large proportion of those we are discussing were serving, anyone who failed a recall could face severe consequences.
Prior to 1975, members of the Armed Forces had to serve for 22 years in the case of other ranks and 16 years for officers to qualify for pension rights at all. In the Minister's letter of 30 July 2004 to the noble Lord, Lord Redesdale, the Minister stated:
"Those with substantial periods of service who married after retiring would be the main beneficiaries [of the amendment], but it could not be argued that this group merited exceptional treatment as against other similarly affected pensioners in the UK".
That seems a bizarre assertion. Of course those with the greatest periods of service deserve to benefit most, while his statement that there are other groups of similarly affected pensioners in the UK is demonstrably false. The police and the fire service have the earlier-than-average retirement age of 55, but only the Armed Forces forcibly eject personnel at around the age of 40 and have long periods of service abroad. Furthermore, although the retirement age for officers is 55, only 5 per cent reach even that target.
I should like to address the Minister's assertion in Grand Committee in July that this amendment would cost £50 million. The Government have been unable to give a basis for this in spite of many requests over more than a decade for research into costs and the number of personnel involved. For example, earlier in the year, in another place there was a request for a breakdown of the £50 million calculation. No such breakdown has been forthcoming, nor has any effort apparently been made to calculate the number of personnel. In Grand Committee in this House, a series of sums greater than £50 million were announced and then corrected and

627
revised down in a subsequent letter to the noble Lord, Lord Redesdale. In the absence of evidence on where the figures have come from, one can only assume that the actuaries' estimates are little more than guesswork. What one can say with certainty is that the cost of the amendment would be enclosed and diminishing, as well as just.
The widows and widowers are puzzled and angry that they are being financially penalised for marrying later in life, but no later than many in the Civil Service at this time who were then able to claim a widow's pension. The Labour Party recognised the justice of this cause when it supported an amendment on the subject in the House in 1995, led by the esteemed noble Baroness, Lady Hollis. The facts are the same 10 years on, and the costs involved have decreased. I hope that this Administration will do the decent thing and not turn their back on the injustice that they rightly perceived.
Lord Steel of Aikwood: My Lords, I rise briefly to support one or other of the amendments proposed by my noble friend Lord Redesdale and the noble Lord, Lord Freyberg. I do so simply because, to my surprise, I received a number of letters on the subject. I do not know why; I am not a pensions or defence expert.
In our democracy people wonder whether it is worth writing to Members of the House of Commons or the House of Lords. When they take the trouble to do so and not to send circulars, I think that one should pay some attention.
I want to take issue with my noble friend Lord Redesdale in suggesting that all the troops have gone home. I do not understand how he can say that sitting in front of our most gallant noble friend Lord Garden—a very distinguished trooper indeed—not to mention myself and my noble friend Lord Thomas, but we will take issue with him later.
I said I would briefly support the amendment because I understand we are not pressing the matter and hope to return to it on another occasion. I should like to quote from one of these letters which illustrates in a personal way exactly what the noble Lord, Lord Freyberg, said. I shall not give the name and address of the person but he is a retired squadron leader. He said:
"I served continuously in the Royal Air force from 1938 until 1971. I married in 1939 and my wife was with me throughout my Service and when I retired in 1971. She died in 1975, 4 years after I retired. I remarried in 1977. If my present wife is widowed she will not get any related widow's pension.
"Throughout my Royal Air Force Service my pay was adjusted at source … to pay for the Armed Forces Pension Scheme, which includes widow's benefits. Therefore, throughout my Service, I have 'bought' an entitlement for my widow to receive a pension irrespective of the date of my marriage. Since, by their very nature, my contributions can never be refunded, my widow's pension rights must always remain 'bought'".
That is a telling example and it is a matter of financial as well as general justice in comparison with others in other walks of life as the noble Lord said. I
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hope the Government will therefore give this serious thought before the issue comes before the House again.
Lord Craig of Radley: My Lords, I rise also very briefly to support the amendment. I have already drawn attention to the fact that the parliamentary pension scheme does not prevent the widow of an MP getting a pension regardless of when she marries her late husband. The Armed Forces are in a special category when it comes to pensions because of reserve commitments after retirement, much earlier retirement and, sadly, the greater likelihood of premature death. We should try to do something regarding pensions for post-retirement marriages.
Lord Bach: My Lords, I know the strength of feeling on this long-standing issue. I am surprised that we have had a debate about it today given that, as I understood it, the matter was to come before the House later in the Bill. But there has been a debate, so I am afraid that I must answer it. I do not resent answering it on the grounds that it is not a serious question—it is a very important question; I appreciate that. But if the amendment had been withdrawn straightaway, we could have had this debate and, if the noble Lord wanted to see it to a conclusion, we could have voted on it on the next occasion.
I resist both amendments, I am afraid. Post-retirement widows' pensions were introduced following government-wide changes in policy through the Social Security Pensions Act 1975. Provision was made in the current Armed Forces pension scheme for the payment of pensions to widows of service pensioners who married or remarried after retirement, but this change benefited only the widows of those giving service on or after 6 April 1978. Subsequent government policy changes to provide widowers with the same post-retirement provision were introduced later, but this change benefited only the widowers of those giving service on or after 1 October 1987.
Amendment No. 16, if carried, would have three effects. First, it would allow all service widows and widowers to qualify for a post-retirement widows' pension regardless of the date of their marriage. Secondly, it would increase the rate of post-retirement widows' pension for those widows and widowers who currently receive a post-retirement pension based on only that part of their spouse's service after the changes were made. Thirdly, it would improve the benefits of unmarried partners who currently receive benefits only if their partners are attributably killed in service—that is, their death is due to service.
Amendment No. 16, if carried, would not have the impact that the noble Lord who moved it intended that it should have. The principal underlying rationale was that the current position unfairly penalised those who might have been encouraged to delay marriage but then left after a relatively short period of service and therefore married after retirement. Many of those whom the measure is designed to benefit would have no entitlement to a pension, even if this change were carried. The overwhelming majority of the widows

629
affected would have spouses whose career in the Armed Forces pre-dated not only April 1978, when post-retirement widows' pensions were introduced, but also April 1975, when preserved pensions were introduced.
There was no legal requirement to preserve pension rights before that date for those who left before completing enough service to qualify for a pension—22 years for other ranks and 16 years for officers. This position was not unique to the Armed Forces and affected most other public service and private sector workers. Those with substantial periods of service who married after retiring would be the main beneficiaries, but it could not be argued that this group merited exceptional treatment as against other similarly affected pensioners in the United Kingdom.
As the noble Lord, Lord Freyberg, has said, the Government Actuary has estimated that there would be a one-off cost in the order of £50 million to extend post-retirement widows' and widowers' pensions to all current and deferred AFPS pensioners. The noble Lord asked for the figure to be broken down. I cannot do that at the Dispatch Box today but I shall ensure that the noble Lord is written to next week with an attempt at a breakdown—he was justified in asking that question. It will cost around £50 million. The cost would increase if unmarried partners were to be included, but it is difficult to estimate given the limited information on the number of partners who might be eligible. There would be no future annual cost.
I explained in Committee that there is no distinction between Armed Forces personnel and other public service employees with regard to the fact that the post-retirement widows' and widowers' pensions are available only to the spouses of those with service on or after a specific date. It has been the long-standing policy of successive governments that changes to improve the benefits from public service pension schemes should be implemented from a current date for future service only. To extend the post-retirement marriage concession only to survivors of service pensioners would therefore put pressure on all public service occupational schemes. Extending the provision to all public service occupational schemes would cost between £300 million and £500 million.
7.15 p.m.
Furthermore, as the noble Lord, Lord Redesdale, graciously acknowledged, the amendment would be in breach of the principle of retrospection, which has been followed by governments of all colours throughout the ages—and immediately denied by opposition parties when they get into government. I do not say that with any relish, but it is just the way it happens, I am afraid.
Amendment No. 17 would limit the benefit to those marrying before the service person's 60th birthday. It would still mean that there was a significant cost, both to the MoD and to other public service schemes, because we could not treat Armed Forces personnel differently on this issue, as I have attempted to explain.
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For those reasons, and with no joy in my heart, I resist the amendments, which were so ably moved. The noble Lord has said that he may return to the matter at a later stage. If he does, I hope that I will be in a position to speak on the amendment again. But I am afraid that I cannot give out any hope at all that our position will change; it would set an unfortunate precedent. The noble Lord says that the Government have made no concessions on legacy issues. I am afraid that I dispute that: our concession on Amendment No. 14 was on a legacy issue. The difference between Amendment No. 14 and this amendment is that the former is not retrospective.
Lord Redesdale: My Lords, I thank the Minister for his reply. I know that it is not an easy issue; nor is it a party-political issue on which points could be scored. The issue affects many people. I understand that Amendment No. 14 has very few cost implications, which is one of the guiding principles whereby it can be agreed, whereas the other legacy issues cannot be accepted. I wished the issue to be aired today. It was useful for people to put their points across because, if the issue will never be solved, that must be stated in the House without giving the impression that this or any government will change the situation without fundamental changes to the whole way in which pensions are looked at. I may return to the matter, but I thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Freyberg Lord Freyberg had given notice of his intention to move Amendment No. 17:
After Clause 6, insert the following new clause"—

POST-RETIREMENT MARRIAGES
As of 6th April 2005 widows, widowers and surviving registered unmarried partners of all service personnel shall receive a full widows' forces family pension based on their spouses or partners length of service and final salary, provided tha t their marriage took place before the service personnel's 60th birthday."
The noble Lord said: My Lords, I thank the noble Lord, Lord Steel, and the noble and gallant Lord, Lord Craig, for their kind words. This is a late hour at which to take the matter any further, so I shall not move the amendment.
[Amendment No. 17 not moved.]

Public Audit (Wales) Bill [H.L.]
7.19 p.m.
Lord Evans of Temple Guiting: My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line references are to Bill 108, the Bill as first printed for the Commons.]
1 Clause 3, page 4, line 26, at end insert—
"(3A) In determining how to exercise his functions under this section, the Auditor General for Wales shall take into account the views of the Audit Committee as to the studies which he should undertake or promote under this section."
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
I start by saying a few brief words about the amendments before us. Nine amendments have been brought from another place. They are comparatively minor and technical in nature, and I shall deal with them in accordance with the Order Paper.
Before doing so, I would like again to thank the noble Lords and noble Baronesses who contributed so effectively to the debates on the Bill in its passage through this House. The fact that there are comparatively few amendments before us for consideration is a result of that constructive and robust scrutiny. It is a job well done, and I am grateful to everybody. I also warmly thank the Bill team, led by David Powell from the Welsh Assembly. They have been very helpful to me and very responsive to the many good points made during the various stages of the Bill's passage through the House.
Two of the amendments relate to Clause 54. I will deal with the detail of them along with the other amendments. On a wider front, however, I can confirm that detailed work is progressing on the order under the Freedom of Information Act 2000 that will amend Section 49 of the Audit Commission Act 1998 to ensure a general presumption in favour of disclosure. The Government still intend to bring the order before Parliament as soon as possible, certainly before the end of the year. That will in turn clear the way for Clause 54 of the Public Audit (Wales) Bill to be likewise amended.
Your Lordships will also be aware that the Parliamentary Under-Secretary of State for Wales has announced in another place that the Government intend to repeal at the earliest legislative opportunity the sanction of imprisonment for failure to comply with the amended provisions of Section 49 and Clause 54. The sanction of a fine for unlawful disclosure will remain.
Commons Amendment No. 1 will require the Auditor General for Wales to take account of the views of the National Assembly Audit Committee in determining which studies to undertake or promote in the exercise of his functions under Clause 3. Sections 100 and 145 of the Government of Wales Act 1998, which relate to value-for-money examinations in respect of the National Assembly and Assembly-sponsored public bodies and NHS bodies in Wales respectively, require the Auditor General to take account of the committee's views. The amendment will bring Clause 3 into line with those provisions. In practice, the Auditor General would consult the Audit Committee on his proposals under Clause 3.
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During debate in another place, the difference in approach was remarked on. The Government undertook to consider that comment further, and the amendment is a fulfilment of that undertaking.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Evans of Temple Gutting.)
Lord Roberts of Conwy: My Lords, we are all grateful to the Minister for his introductory remarks. He is certainly right in saying that the House has put a great deal of work into the Bill, and we welcome the measure. Among those who have played an important part in improving the Bill is my noble friend Lady Noakes, whom I am glad to see beside me on the Bench this evening.
The amendment provides a satisfactory way of involving the National Assembly Audit Committee in the selection of subjects for value-for-money studies within the ambit of the Assembly and its sponsored bodies. The amendment will ensure that there is proper communication on such matters between the Auditor General and the Assembly's Audit Committee. The last thing that we want to see is duplication of effort; we want to see liaison, understanding and co-operative effort, where they are required.
I am bound to say that the amendment was anticipated during proceedings in Standing Committee in the other place. We now see the fruition of that anticipation in the amendment, which we are happy to support.
Lord Thomas of Gresford: My Lords, the interesting aspect of the Bill for us is the fact that it emanated from the joint Liberal Democrat and Labour Government in the National Assembly for Wales. Consequently, we have always felt some ownership of the Bill, and we are delighted to see that it is being put into effect.
We were slightly chided by the Conservative spokesman in another place for not making amendments to the Bill. It is difficult to make amendments to one's own Bill, which is how we see it, particularly if we were not in the position of having the advice that was available to the Government. Consequently, we have approached the Bill, save for Clause 54, with good will. In any event, the Government have been greatly assisted in their consideration of the finer detail of the Bill by the formidable combination of the auditing experience of the noble Baroness, Lady Noakes, and the ministerial experience of the noble Lord, Lord Roberts of Conwy. I give them the palm for detailed scrutiny of the Bill.
With regard to Clause 54, we were always anxious that the criminal sanctions in the Bill, which applied only to reports made in respect of local government, should be removed. It seemed to us that that part of the Bill had come from alien sources, namely the Welsh Local Government Association. which at that time— happily, no longer—tended to be dominated by what I have described as the dinosaurs of the Labour Party in south Wales. Happily, since the previous elections,

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that is no longer quite the case. It managed to get its oar in and try to preserve for itself the criminal sanction relating to local government reports.
The solution, which was arrived at with considerable effort on the part of the Minister and Mr Touhig, to whom I also pay tribute, is not entirely satisfactory, but it is as good as we will get. At earlier stages of the Bill's passage, I said that we did not accept the principle that the criminal law in Wales must be the same as the criminal law in England. Every regulation that is passed by the National Assembly using its powers of secondary legislation that contains a sanction makes a difference between the two systems of criminal law. That principle must be recognised.
Given that the Government were not prepared to give way on the issue, I am happy that, in the unlikely event that anybody should seek to bring a criminal charge under Clause 54 as it is now drafted, they would undoubtedly fail, on the basis that an application would be made to stay such a prosecution on the ground of an abuse of process, having regard to the assurances that have been given not only by the noble Lord but by Mr Touhig in the other place. Consequently, I remove all hint of criticism. I accept gratefully the effort that has been put into the matter and the work that has emanated from all sides. I assure the Minister that we support the Bill, which we regard as being partly our own.
On Question, Motion agreed to.

COMMONS AMENDMENT
2 Clause 12, page 11, line 38, leave out paragraph (g) and insert—
"(g) a fire and rescue authority in Wales constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies;"
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. It would be appropriate to take Commons Amendments Nos. 2, 4 and 9 together.
The amendments relating to Clauses 12 and 46 and Schedule 1 take account of the provisions of the Fire and Rescue Services Act 2004, as they affect the Public Audit (Wales) Bill. The Fire and Rescue Services Act replaces fire authorities with fire and rescue authorities. The amendments will change the three relevant references in the Bill, at Clauses 12 and 46 and Schedule 1. The Fire and Rescue Services Act received Royal Assent on 22 July.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Evans of Temple Guiting.)
7.30 p.m.
Lord Roberts of Conwy: My Lords, as the noble Lord said, these amendments are consequential on the enactment of the Fire and Rescue Services Act. They
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are wholly appropriate. They bring such authorities as may be formed within the scope of the Bill, which is right and proper. Therefore, we support them.
Lord Thomas of Gresford: My Lords, I agree and have nothing to add.
On Question, Motion agreed to.

COMMONS AMENDMENT
3 Clause 28, page 21, line 16, leave out "body" and insert "auditor"
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. It would be appropriate to speak to Commons Amendments Nos. 3 and 7 together. They correct minor errors in Clauses 28 and 56. Clause 28(3)(b) enables a member of the public to obtain on payment of a reasonable sum a copy of a non-immediate public interest report prepared by an auditor, under Clause 22, in respect of an audited body's accounts. Clause 28(3)(b) states that a copy of the report should be supplied by the audited body. The reference should have been to the body's auditor.
Clause 56(2) should have said:
"The information that may be published under subsection (1)(a), (b) or (c)",
and not,
"subsection (1)(b), (c) or (d)",
as originally drafted. The exclusion should relate only to the information about public interest reports, not to information about contraventions of the accounts and audit regulations to be made under Clause 39.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Evans of Temple Guiting.)
Lord Roberts of Conwy: My Lords, Amendment No. 3, which applies to Clause 28, is a distinct improvement. The duty of supplying a non-immediate report to a member of the public is quite properly taken away from the body reported on and given to the auditor who has produced the report. One can imagine such a body finding all kinds of excuses for not supplying a report that is critical of itself.
Amendment No. 7 applying to Clause 56, which would leave out subsection (1)(d), is a little more complex. As I understand it, it would prevent the Auditor General for Wales publishing information about a body that contravenes regulations made under Section 39. Those regulations made by the National Assembly relate, for the most part, to local government accounts.
We have been over that ground before. It is whistleblower territory. A person who contravenes such regulations may find himself or herself committing an offence. In such circumstances, which may be sub judice or close to sub judice, it may be sensible not to encourage the Auditor General to publish information about a contravention. That is my understanding of the effect of leaving out Clause

635
56(1)(d). It is an understandable position for the Government to take. We do not intend to make a big issue of it.
On Question, Motion agreed to.

COMMONS AMENDMENT
4 Clause 46, page 30, line 39, leave out paragraph (e) and insert—
"(e) a fire and rescue authority in Wales constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies."
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. I have spoken to this amendment with Amendment No. 2.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
5 Clause 54, page 35, line 25, leave out "145B or"
6 Page 35, line 39, leave out "145B(3) or"
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 and 6. Commons Amendments Nos. 5 and 6 relate to Clause 54. They remove information obtained during a value-for-money study undertaken at the request of an education body from the restriction on the disclosure of information currently provided for in Clause 54.
The Government have striven to achieve consistency in the treatment of Section 49 of the Audit Commission Act 1998 and Clause 54. Clause 54 would apply the restriction on disclosure of information to value-for-money studies undertaken at the request of education bodies under the proposed Section 145B of the Government of Wales Act, provided for in Clause 4 of the Bill.
Studies in respect of such education bodies are not covered by Section 49 of the Audit Commission Act 1998. The amendments bring the provisions into line. As the studies are at a body's request, the release of information will be governed by the normal laws of confidentiality and the terms of agreement between the parties. These Commons amendments limit the scope of Clause 54 and bring it into line with Section 49 of the Audit Commission Act.
Moved, That the House do agree with the Commons in their Amendments Nos. 5 and 6.—(Lord Evans of Temple Guiting.)
Lord Roberts of Conwy: My Lords, from the start this has been the most contentious clause in the entire Bill. I think that we all believe it is right that it should be a matter of contention. There are elements in the clause that even this Government have now found to be obnoxious. I shall not deepen their hurt but accept that they are trying their best to right the wrongs without causing too much fuss. There is however continuing cause for concern.
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With regard to these specific amendments relating to value-for-money studies undertaken at the request of educational bodies, the Government take the view that because the bodies have requested the studies, the rules of confidentiality and restriction on disclosure should apply even though the bodies concerned are substantially financed from the public purse.
The Government's view has a certain validity: they rightly wish to encourage educational bodies to seek such independent studies if they believe they need them and will benefit from them. Part of that encouragement is the non-disclosure of possible adverse outcomes. Of course, under the Bill, the situation is further complicated because such educational bodies are not covered by Section 49 of the Audit Commission Act, as the noble Lord has said and as the Parliamentary Under-Secretary, Mr Don Touhig, said in Standing Committee.
The Government seek consistency between what they now propose and that Act. Of course, we must remember that, ultimately, we shall have translucency rather than transparency. If there is something wrong in an educational institution that has sought one of these studies some will be entitled to know about whatever is wrong, but the great British public will not know necessarily.
However, I am the first to appreciate the Government's position. They require consistency between this Bill and the Audit Commission Act. It is important because of the changes that the Government have repeatedly promised to bring about in both pieces of legislation to bring them into line with the Freedom of Information Act. In short, as I understand it, the presumption against disclosure in Section 49 of the Audit Commission Act will become a presumption in favour of revelation before the end of this year. That presumption will be effected by an order under Section 75 of the Freedom of Information Act.
As we have heard, the Government have already announced in the other place that they have decided to drop the imprisonment sanction against disclosure, which is certainly welcome. We trust, of course, that they will also abide by the rest of the commitments that they have made to Parliament. We are the first to acknowledge that this is a complex area and that the Government have made every effort to eliminate that complexity and secure consistency between this Bill and the Audit Commission Act.
Lord Thomas of Gresford: My Lords, I have said all that I wanted to say in general about Clause 45, but perhaps I may repeat something that was pointed out on many occasions by the noble Baroness, Lady Noakes, during the course of this Bill through this House; that is, that it is a shame that the opportunity was not taken here to put forward best practice so that the Bill could become the template for what will happen in England in due course. As it is, this Bill has been made to comply with an Act of Parliament which the Government admit is unsatisfactory and

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inconsistent with the Freedom of Information Act. Machinery has already been put into the Bill which will amend it in a matter of months.
The Government should accept the possibility that in Wales we can show the way in legislation. We can provide a guide to the way future English legislation should go on these topics. Given that, I hope that when other Welsh legislation comes before Parliament, we do not always seek to comply with out-of-date English statutes.
On Question, Motion agreed to.

COMMONS AMENDMENT
7 Clause 56, page 36, line 42, leave out "(1)(b), (c) or (d)" and insert "(1)(a), (b) or (c)"
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I spoke to this amendment with Amendment No. 3.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENT
8 Clause 75, page 42, line 18, leave out subsection (2)
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. This Commons amendment removes the privilege amendment which was inserted in the Bill in this House at Third Reading. A money resolution was passed immediately after the Second Reading of the Bill in another place on 17 June.
Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Evans of Temple Gutting.)
Lord Roberts of Conwy: My Lords, any layman looking at what is proposed by this amendment would be very surprised to find that Clause 75(2) is in the Bill at all. It states quite clearly that:
"Nothing in this Act shall impose any charge on the people or on public funds or vary the amount or incidence of or otherwise alter any such charge in any manner, or affect the assessment, levying, administration or application of any money raised by any such charge".
It was obvious from the beginning that this Bill would cost money for various bodies and, ultimately, for the council tax payer. I seem to recollect that the Explanatory Notes acknowledged that and stated that costs of some £985,000 had been identified since the introduction of the Bill.
As the noble Lord has pointed out, this was a privilege amendment which it is conventional to insert into a Bill in the other place before authority has been given by that place for the expenditure of money. However, if more costs have been identified further to those I have mentioned, perhaps the noble Lord would share that information with us. It would be a fitting
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end to our proceedings on this Welsh audit Bill if we were given such additional information on the costs as may be available.
Lord Evans of Temple Guiting: My Lords, it is worth putting on the record what this amendment does. It is a formality and a well established procedure, being an example of what is known as a privilege amendment. It is introduced before a Bill leaves this House and goes to another place in acknowledgment of the convention that all money resolutions are passed in another place permitting public expenditure on matters provided for in legislation. As I have said, a money resolution was passed immediately after the Second Reading of the Bill on 17 June.
The noble Lord, Lord Roberts, is absolutely correct to point out that we have anticipated the set-up costs of the Wales Audit Office to be around £985,000. This has already been reported to both Houses of Parliament. The amount will be met by the budget of the National Assembly for Wales. As regards future costs, the Auditor General for Wales is currently working on his administrative budget for the first year of the body's operation. This will shortly be considered by the Assembly Audit Committee.
On Question, Motion agreed to.

COMMONS AMENDMENT
9 Schedule 1, page 43, leave out line 11 and insert—
(d) a fire and rescue authority in Wales constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies."
Lord Evans of Temple Guiting: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I spoke to this amendment with Amendment No. 2. Before I sit down, I should like to thank all noble Lords for being enormously helpful during the passage of the Bill through this House.
Moved, That the House do agree with the Commons in their Amendment No. 9.— (Lord Evans of Temple Guiting.)
On Question, Motion agreed to.

Employment Relations Bill
7.47 p.m.
Read a third time.
Lord Triesman Lord Triesman moved Amendment No. 1:
After Clause 5, insert the following new clause—

CIRCUMSTANCES IN WHICH THE CAC MUST ARRANGE A BALLOT
(1) In paragraph 22(4) of Schedule Al to the 1992 Act (qualifying conditions requiring the CAC to hold a ballot of workers in bargaining unit), for paragraph (b) substitute—
"(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;".
(2) In paragraph 87(4) of that Schedule (qualifying conditions requiring the CAC to hold a ballot of workers in new bargaining unit), for paragraph (b) substitute—
"(b) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the new bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;"."
The noble Lord said: My Lords, Amendment No. 1 deals with an issue we discussed in Grand Committee in response to an amendment tabled by my noble friend Lord Lea of Crondall. At the time I indicated that we would give further consideration to the matter he had raised and, in response, he was good enough to withdraw his amendment.
The issue concerns the circumstances in which the CAC must order a ballot of the relevant workforce to assess whether they want a union to bargain on their behalf, even though the union has more than half of the workers in membership.
Currently, the CAC must apply three criteria when assessing this issue. These are listed in paragraph 22(4) of the recognition procedure in cases where a non-recognised union is applying for recognition. The same criteria are also listed in paragraph 87(4) of the procedure which concerns changes to bargaining units following a CAC award of recognition. Our amendment changes both paragraphs in identical ways. For simplicity, I shall confine my remarks to the changes to paragraph 22(4), which is a part of the procedure that comes into play more frequently as it deals with the central case of a union seeking recognition.
The first and third criteria in paragraph 22(4) give the CAC some discretion to assess the evidence put before it and judge whether a ballot should be held. That is not the case in relation to the second criterion.
According to the second criterion, a ballot must be held if a,
"significant number of union members in the bargaining unit inform the CAC that they do not want the union or unions to conduct collective bargaining on their behalf".
The wording emphasises the quantity and not the quality of the information that has been provided to the CAC. This has created a problem in cases where the CAC has received such communications from "a significant number" of union members, but there were grounds to believe that the union members were pressurised into sending those communications. In other words, there was evidence that questioned whether union members genuinely did not want the union to negotiate on their behalf which the CAC could not take into account. In Grand Committee, I drew attention to one particular case—Brian Hewitt Construction Limited and the Iron and Steel Trades Confederation—where this issue had arisen in practice.
The amendment therefore changes the wording of the second criterion to provide extra discretion to the CAC when applying it. It does so by requiring the CAC to consider whether there is "credible" evidence that a "significant number of union members" do not want the union to undertake bargaining on their
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behalf. The amendment therefore adds a necessary qualitative dimension to the way in which the second criterion is expressed.
I am sure that CAC panels, whose members are most certainly experts in industrial relations, will be able to apply the criterion fairly and sensibly. Amendment No. 1 would improve the statutory procedure by removing an unhelpful rigidity within it.
I am grateful to my noble friend Lord Lea for drawing this matter to our attention at each stage. I commend the amendment to the House. I beg to move.
Lord Lea of Crondall: My Lords, I am grateful to my noble friend for bringing forward the amendment. As he indicated, there are other examples of where this issue has presented a difficulty in addition to the case he has specifically cited.
Perhaps I may take the opportunity to check whether I have understood how this will work in practice. Let me take the case of letters from union members stating that they do not want the union to negotiate on their behalf, but these are letters which the CAC concludes the employer asked the workers to send—indeed, the employer may have helped draft the letters. How does the Minister envisage the panel would deal with those letters? How would it assess whether they represented credible evidence?
Lord Triesman: My Lords, the panel is required to assess whether the evidence is such as to lead it to believe that the workers do not want the union recognised. It will judge this on the arguments and the information put before it by the parties—that is, by the employer and the union—or submitted directly to it by individual workers.
Of course, each case will be different, at least to some extent, and will need to be judged on its merits. But, as a general rule, the amendment would enable CAC panels to disregard or place much less weight on evidence where employers have placed pressure on the workers to sign such letters. In deciding the question of credibility, the panel could take account of overt threats and inducements as well as more subtle forms of undue influence.
By the same token, we do not think that the involvement of the employer in facilitating the production of letters should of itself mean that the evidence lacks credibility. Throughout the procedure we would expect unions and employers to gather evidence in support of their position and to help others present evidence. So we do not object to employers providing information to the workers involved about the CAC's timetable or about the way in which they might express their views to the CAC. The key issue is whether such endeavours have distorted the true view of the union members concerned.
Lord Lea of Crondall: My Lords, I thank my noble friend for that clarification. Now that it is on the record, I trust that the Minister can also confirm that

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the CAC's attention will also be drawn to what he has said in this exchange to assist its understanding of the intention of the amendment.
Lord Triesman: My Lords, I know that the CAC has followed the consideration of the Bill in both Houses and that it regularly receives the official reports in Hansard. I hope and expect that my explanation is helpful to the CAC and all those involved in this area.
Baroness Miller of Hendon: My Lords, the amendment and the explanation given by the noble Lord appear to give the CAC the ability to take a more flexible and less prescriptive view. We certainly support the amendment.
On Question, amendment agreed to.
Clause 9 [Unfair practices in relation to recognition ballots):
Lord Triesman Lord Triesman moved Amendment No. 2:
Page 11, line 36, leave out "anything" and insert "to pay money or give money's worth"
The noble Lord said: My Lords, this large group contains various amendments which relate to the clauses of the Bill concerning unfair practices during recognition and derecognition ballots. In fact, despite their number, the amendments concern only three issues, two of which are technical in nature. But one relates to the more significant issue concerning the definition of an unfair "offer" to workers in the bargaining unit. This issue was raised in Grand Committee and I propose to deal with it first before briefly discussing the two technical issues towards the conclusion of my remarks.
Let me start by moving Amendment No. 2 and speaking also to Amendments Nos. 3 to 8, 46 and 48. As noble Lords will recall, Clauses 9 and 12 insert various new paragraphs into the statutory recognition procedure. New paragraph 27A sets out a number of unfair practices during recognition ballots, and new paragraph 119A defines unfair practices during derecognition ballots. Amendments Nos. 2, 3 and 4 amend new paragraph 27A, and Amendments Nos. 6, 7 and 8 amend new paragraph 119A. These two sets of amendments are virtually identical and for simplicity I will confine my remarks to the amendments to Clause 9 to avoid any repetition.
As I said, new paragraph 27A defines various unfair practices. The first of these concerns the bribing of workers by either the employer or the union in exchange for their vote. Sub-paragraph (2)(a) refers to this unacceptable practice as offering,
"anything … in return for the worker's agreement to vote in a particular way or to abstain from voting".
Unions and, to a degree, employers have expressed concern at this wording which they, in my view understandably, consider to be too broad. In particular, they fear that it might interfere with normal campaigning activity.
In Grand Committee, I indicated that we would reconsider the wording at this point. We have concluded that the use of the word "anything" is too broad. At the least, it might encourage a party to make
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a speculative complaint to the CAC about standard campaigning activities. Amendment No. 2 therefore removes the word from the definition. In its place, the amendment substitutes references to the offering of "money" and the giving of "money's worth". The wording is therefore more precise.
The term "money's worth" is new to employment law, but it appears frequently in other areas of the law and has been relatively straightforward to interpret in those other settings. It basically covers the provision of goods or services or other things which have a monetary value. In our context, the offers of improved benefits in kind—such as a better company car or subsidised healthcare—would be covered. The term would also cover the offering of extra holidays or other forms of paid time off. Such offers constitute "money's worth" because the worker receives money for not working.
In re-examining the definition of an unfair offer in sub-paragraph (2)(a), we noticed that we had not covered all the ways in which a party could bribe members of the relevant workforce. In particular, it did not cover situations in which a party offered money if the outcome of the ballot went a particular way. Of course, such offers would be intended to influence voting behaviour. But they are not limited only to those who agree to vote in a particular way, or not to vote at all; the reward is given to all, regardless of their actual voting behaviours, as long as the outcome of the ballot goes in the desired direction.
We feel that there is a potential for parties to make offers of this type and to distort the balloting process. Amendments Nos. 3 and 4 address the potential loophole by establishing a new unfair practice of making "outcome specific" offers to pay money or give money's worth which are contingent on the outcome of the ballot, as declared by the CAC.
In defining this new unfair practice we have taken care to make sure that normal campaigning activity is not inadvertently caught. We were cautioned many times during the earlier debates about this potential problem. It can be expected that both the employer and the union will make statements about what they think will occur if recognition is awarded or not. The union may well say that pay and conditions will improve as a result of collective bargaining. Equally, the employer might assert that the business would he more profitable without collective bargaining and therefore pay will be higher and jobs more secure if recognition is not awarded.
It is conceivable that some statements about the consequences of life after recognition could constitute "offers" to the workers involved. Amendment No. 4 therefore makes it clear that an offer which is conditional on anything which is done or occurs as a result of the CAC declaration does not constitute an outcome-specific offer.
As I have already indicated, Amendments Nos. 6, 7 and 8 apply the same changes to the treatment of offers made during derecognition ballots. Amendments Nos. 46 and 48 to Schedule 1 to the Bill are consequential.
Let me deal with the two sets of technical changes we are making. Amendments Nos. 5 and 9 replace certain references in new Clauses 9 and 12 to the holding of a ballot. Throughout the recognition procedure, we have used references to ballots being held as meaning the conclusion of the ballot. As drafted, the use of "held" in new paragraphs 27B(2)(b) and 119B(2)(b) potentially has a broader meaning, and we think that it could cause confusion. To ensure consistency across the recognition schedule, we have substituted new wording at these points.
Finally, Amendments Nos. 10, 11, 47 and 49 change some imprecise and outdated wording about the way in which certain CAC orders can be enforced as an order of the county court. The current wording is deficient. Scotland does not have any county courts and the reference to the order having been "recorded" at the court has no clear meaning in modern court procedures. We have therefore substituted clearer wording and added a reference to the Scottish legal process. The amendments also clearly indicate who is entitled to take such action.
Amendment No. 42 in Schedule 1 updates similarly outdated wording used in another part of trade union law—namely, Section 82 of the Trade Union and Labour Relations (Consolidation) Act 1992. This section relates to the enforcement of certain orders made by the certification officer.
This group of amendments mainly fulfils a commitment that we made in Grand Committee to look again at the definition of particular unfair practices in making offers. We believe that the new wording has much less scope to cut across normal campaigning activity while covering a wider range of offers. I therefore commend the amendments to the House and the technical improvements they contain. I apologise for the number of amendments, but it is as well to get the whole process right. I beg to move.
8 p.m.
Baroness Turner of Camden: My Lords, during the course of discussions on the Bill, my noble friends and I raised the possibility that the present wording of a party offering anything to a worker entitled to vote could be interpreted to cover unions campaigning when they campaign for recognition and seek to set out their agenda for looking after workers, should they join the union or vote for recognition.
I thank my noble friends on the Front Bench because I feel that they have met the concerns that we voiced in Grand Committee and afterwards. These amendments improve the Bill.
Baroness Miller of Hendon: My Lords, we do not oppose any of the modifications that the noble Lord, Lord Triesman, outlined. In fact, we welcome the clarification and better wording proposed.
On Question, amendment agreed to.
Lord Triesman Lord Triesman moved Amendments Nos. 3 to 5:
Page 11, line 38, at end insert—
"(aa) makes an outcome-specific offer to a worker entitled to vote in the ballot,"
Page 12, line 4, at end insert—
"( ) For the purposes of sub-paragraph (2)(aa) an "outcome-specific offer" is an offer to pay money or give money's worth which—

(a) is conditional on the issuing by the CAC of a declaration that—

(i) the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit, or

(ii) the union is (or unions are) not entitled to be so recognised, and

(b) is not conditional on anything which is done or occurs as a result of the declaration in question."

Page 12, line 18, leave out from "if" to end of line 19 and insert "votes may be cast in the ballot on more than one day, the last of those days."
On Question, amendments agreed to.
Clause 12 [Unfair practices in relation to derecognition ballots]:
Lord Triesman Lord Triesman moved Amendments Nos. 6 to 11:
Page 15, line 43, leave out "anything" and insert "to pay money or give money's worth"
Page 15, line 45, at end insert—
"(aa) makes an outcome-specific offer to a worker entitled to vote in the ballot,"
Page 16, line 13, at end insert—
"(2A) For the purposes of sub-paragraph (2)(aa) an "outcome-specific offer" is an offer to pay money or give money's worth which—

(a) is conditional on—

(i) the issuing by the CAC of a declaration that the bargaining arrangements are to cease to have effect, or

(ii) the refusal by the CAC of an application under paragraph 106, 107 or 112, and

(b) is not conditional on anything which is done or occurs as a result of that declaration or, as the case may be, of that refusal."

Page 16, line 27, leave out from "if' to end of line 28 and insert "votes may be cast in the ballot on more than one day, the last of those days."
Page 19, leave out lines 14 to 16.
Page 19, line 20, at end insert—
"1191 (1) This paragraph applies if—

(a) a ballot has been arranged in consequence of an application under paragraph 112,

(b) the CAC has given the employer an order under paragraph 119(1), 119C(3) or 119H(4), and

(c) the ballot for the purposes of which the order was made (or any other ballot for the purposes of which it has effect) has not been held.

(2) The applicant worker (or each of the applicant workers) and the union (or each of the unions) is entitled to enforce obedience to the order.
(3) The order may be enforced—

(a) in England and Wales, in the same way as an order of the county court;

(b) in Scotland, in the same way as an order of the sheriff."

On Question, amendments agreed to.
Clause 21 [Information about employees to be balloted on industrial action]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 12:
Page 26, line 27, leave out "at which the employees concerned work" and insert "of the employees concerned"
The noble Baroness said: My Lords, I suppose that I should have raised this matter at an earlier stage of the Bill's proceedings. However, it became apparent to me only when I received a copy of the Bill as amended on Report. Under the Bill as it stands, a union must notify an employer of not only the categories of workers who are to be balloted about dispute action but also the workplaces at which the employees concerned work. I think that notification of categories ought really to be sufficient, but in present circumstances, workplaces may be widely distributed. An employee may work at one at a particular time and then at another. Some workplaces may in fact have few people working there at a given time. With very few workers, it rather nullifies the provision that the employer does not have to be told the names of those concerned. With a small number of employees at some workplaces, he would not need to be told. The union may not know where everyone is at a given time. If mistakes are made, that could lead to challenges and further difficulties.
I think that the Government must have had some idea that there were problems because of the provision in proposed subsection (2I)(b) of Clause 21(4) concerning,
"the premises with which his employment has the closest connection".
I still think that that could lead to problems.
A union calling an official dispute already has a number of hurdles to surmount to ensure that the action remains within the law and that members are entitled to the limited protection afforded by the law. This workplace requirement adds to the difficulties. Our amendment highlights these in the hope that the Government will agree that this needs to be looked at, even at this very late stage. We wanted very much to highlight the difficulties that we think it could present. I beg to move.
Lord McCarthy: My Lords, we fully admit that this amendment should have been raised before. Indeed, what we are trying to get the Government to consider affects both Clauses 21 and 24. It is all about the kind of information that a union has to provide an employer. Under Clause 21 it has to provide information about a ballot; under Clause 24, we assume that the ballot has been held, there has been a majority and now there will be a strike. It has to give the same kind of information under Clause 24 as under Clause 21.
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I am not blaming the Minister, but in introducing these changes he said a number of things quite fast. Until one read what he said on Report in Hansard, it was not quite clear. He said that the changes being included here would improve the wording. We are not sure that they do. He said that they would remove the confusion but we do not think that they do. He said that they were technical but, when you think about it, they are much more than technical. We are in fact extending quite significantly—and we have done this since 1992 and 1993 when the measure was introduced by the previous government—the kind of information that the union has to provide in a potential industrial dispute.
We must think about that, because it was said at the time, as many noble Lords will remember, that it is very important that certain types of information should not be given. For example, we should not make the union tell the employer who the workers are. That was admitted at the time and I am not suggesting that we are doing that. It was said that there had to be a balance. In other words, the things that go on the forms that are sent to an employer help him or her. If those things are of a certain type they may not help the union. That is why we said that the names of the workers involved should not be included.
However, I am not at all certain that an employer could not work out who the workers were, because we have to declare all the workplaces involved, the number of workers and the categories of work. It might be quite easy in certain circumstances to work out who was likely to be involved in the industrial action. You might say, "Well you'll find out when it starts so what's the difference?" However, if one knows a fortnight or three weeks in advance that a union is planning industrial action that is not quite the same, is it?
Moreover, I am not saying that employers should not be allowed to do such things, but the employer might say, "The problem is really in workshop four, because hardly anybody is coming out anywhere else. But it is critical because 200 or 300 people are involved and they are all coming out. They all voted in favour. That is the place where we have to divert the work. It is no good sending any work to them because there will not be anybody there to do it". Or he might say, "This is where we have to get the supervisors to do the work". Different information is being given to the employer and one would not expect the employer to do anything other than make the best use of it. We might be creating serious problems for a union organising a strike.
Finally, the union might be inaccurate. That is dealt with in the Bill, I know. However, if the union were inaccurate and put down the wrong names, included people who had moved somewhere else or thought that all it had to do was send a check-off return of people who had their money taken out through DORCAS— deduction at source—that might very well be out of date or inaccurate and might not include all the people involved in the dispute. Technically, the return could be inaccurate. If it were inaccurate and if an employer were bloody-minded enough and alleged that it was inaccurate, the employer could get some kind of interim injunction to prevent the action.

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I am not criticising an employer who does such things. If they are allowed by the law they should be done. But we have to provide a balance. We have to find something that is fair and equitable to both sides. This measure is creeping forward. I ask the Government, even at this late stage, to think about whether all these words, clauses and conditions are strictly necessary. I support the amendment.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, my noble friend raised some interesting questions, but they do not relate to what can fairly be described as a technical amendment. The amendment proposes that we leave out,
"workplaces at which the employees concerned work"
and insert,
"workplaces of the employees concerned",
which is a fairly technical point. The amendment relates to the terminology used in the pre-industrial action ballot notices to describe the workplaces of those involved. It has the effect of reversing one of the technical amendments that were tabled by the Government on Report.
At Report we stated that our purpose in referring to the,
"workplaces at which the employees work",
was to ensure consistency and clarity across various provisions in trade union law. New subsection (2I) of Section 226A, which Clause 21 would insert, defines the meaning of "workplace" in this context and clarifies the position of a person who works from several premises.
Let me assure my noble friends that the amendments in this area that were accepted at Report were designed entirely to ensure the consistency and clarity mentioned. They were not intended to narrow the scope of the provisions, but to improve the way in which they deal with the position of workers working at or from more than one set of premises. I do not believe that they have any effects with which my noble friends would not agree. In our view, there would be potential for unnecessary confusion to arise if different constructions were used to describe "workplaces". The courts might be tempted to infer that some difference in meaning was intended between,
"workplaces at which the employees concerned work",
and,
"workplaces of the employees concerned",
simply because those different formulations had been used.
My noble friend Lady Turner raised the question of peripatetic workers, or people who work in more than one place. The union would, as she said, normally need to indicate the premises with which the employer's employment had the closest connection. Of course, the information given by the union is required to be as accurate only as is reasonably practicable, in the light of the information available to it. It follows that if there was inadequate information available about the premises
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with which a peripatetic employee's employment had the closest connection, a failure to include information in the notice would not result in any breach of the clause's requirement. Clause 21 does not extend the information which the union should supply.
I hope those explanations satisfy my noble friends, and I urge my noble friend to withdraw the amendment.
Baroness Turner of Camden: My Lords, I thank my noble friend the Minister for that explanation. I fully agree that we should perhaps have raised this matter on Report, when the whole issue of workplaces was before the House. As I explained, I did not do so until I looked at the Bill as amended on Report; then the problem arising from workplaces immediately became apparent to me. However, I am grateful to my noble friend the Minister for his assurance that the union must produce information only as reasonably accurately as it can be expected to do so. In other words, there is a certain cover for a union not being able to produce information because of the spread of the workplaces, and so on. Of course, we shall have to see how that works out in practice. I hope that our fears are not justified, and I am grateful for the assurances that have been given, which now appear on the record. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Dismissal where employees taking protected industrial action locked out]:
Lord McCarthy Lord McCarthy moved Amendment No. 13:
Page 29, line 42, leave out "eight" and insert "twelve"
The noble Lord said: My Lords, we have a quite unique position here, which we are very pleased about. This is really an amalgamated amendment; those who saw the previous amendments will know that we tabled an amendment in precisely the same words, only to find when the list came out that the Government had tabled an amendment in precisely the same words as us. I have been in this House for almost 30 years, and I have never known the Government and Back Benchers to table identical amendments. At least it means that the amendment is likely to go through. We are very pleased about that.
The point is that we have tried to get this amendment into other Bills; we tried to get it into this Bill, and we tabled it in Committee and on Report. The Minister gave very good arguments for his point of view, which I shall not go through because it would not be fair. The fact is that the Government have agreed with us, but I cannot give them 10 out of 10.
What are we doing with this amendment? We are extending the period in which there is protected industrial action, in our sense. I say in our sense because one is not protected—one can be dismissed. If one was dismissed one might get compensation, but one will not get reinstatement. So it is not a proper right, but a right not to be dismissed without compensation. That is what it is.
The period is going to be extended from eight weeks to 12 weeks. Some people said, when we tabled the amendment before—I believe they were members of

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the Opposition, but perhaps it was in another place—that such a measure would foster a great deal of industrial action. The Government in reply said that it would not, because there were only three or four strikes that lasted eight weeks last year, and that there would not be a lot more that lasted 12 weeks. That is right: people go on strike, and in my experience as an arbitrator or mediator of 30 years or so, if they do not get something in the first fortnight, they had better go back to work, because they are not going to win. Nevertheless, some of them do; some of them feel that they have to protest; some of them feel that they are defending the position of people who have been dismissed. That is what they do.
I fully accept that this Government have done quite a lot to improve on that condition and make the eight weeks a real eight weeks; that has been their defence so far. Now they are making the period 12 weeks. However, there is something that they are not doing—and we must say this, because we say it every time, and all of a sudden the Government do something, so we must go back and say it again. What workers are entitled to, and what workers have in virtually every other European country, is an indefinite right to strike—because in that case, one does not break the contract, one suspends the contract. In virtually every other European country you suspend the contract. That constitutes a right to strike. That means that you cannot he dismissed and if you were dismissed you would be reinstated. That is a proper right to strike. However, we do not have that in this country. The measure does not result in a vast number of strikes in Switzerland, Germany or France because people go back to work. They go back to work because they are losing money. We are not suggesting that they should be paid. They go hack to work because in most cases they know that if they cannot get somewhere in a short period of time, they had better go back to work. That is a right, or it should be a right, but it is not. Therefore, I am afraid that I cannot give the Government 10 out of 10.
When I was at school we were marked for effort and achievement. I give the Government two for effort but I cannot give them more than one for achievement. They have to do better. However, they have done well tonight and I am very pleased to move this amendment. I beg to move.
Baroness Miller of Hendon: My Lords, unlike the noble Lord, Lord McCarthy, I have never been a teacher. Therefore, I would not dream of giving the Government marks out of 10. However, in the meeting that we had with the noble Lord, Lord Triesman, he certainly satisfied me that the amendments were perfectly acceptable. We therefore obviously accept them.
Lord Triesman: My Lords, I wish to speak to Amendment No. 13 and to Amendment No. 43 to the schedule. I thank the noble Baroness, Lady Miller, for her kindness in responding to what we have attempted to do. I appreciate how hard it will have been for the noble Lord, Lord McCarthy, to have waited 30 years
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for a first, but I would have hoped that, having achieved one, he might have accorded us more than one or two out of 10. I always thought in the days when I taught in universities that when you had exactly the same words as on the examiners' guide script, 10 out of 10 was about right. That was the basis on which I always worked.
As my noble friends have explained. the aim of this amendment is to extend the basic period of protection against unfair dismissal for employees taking lawfully organised official industrial action from eight to 12 weeks. The amendment itself increases the protected period accordingly.
We have debated the protections for those taking part in industrial action many times both during our consideration of this Bill and in the passage of the Employment Relations Act 1999. Trade unions have called for an indefinite protection for workers taking part in lawful action. My noble friends have pointed out that several European countries have laws which ensure workers cannot be sacked at all for taking industrial action. The noble Lord, Lord McCarthy, made the point that there is not an explicit right to strike in UK law. I do not think that there is a need for such an explicit right. Our law is very clear: it provides the necessary freedoms to take industrial action as it stands. In particular, Section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 ensures that no court can compel a person to work. The Government take the position that it is necessary to put a time limit on the period during which it is automatically unfair to dismiss someone taking protected legal industrial action. We need to balance the legitimate interests of the employer with those of the union members.
However, we have taken note of the very strong views that have been expressed by trade unions and others on this point. On reflection, we consider that a modest extension of the protected period would address their concerns adequately. Of course, most industrial action is shortlived. The existing eight-week period covers the bulk of industrial action. Estimates by the Office for National Statistics indicate that 93 per cent of stoppages last fewer than eight weeks. The corresponding figure for industrial action lasting fewer than 12 weeks is 96.5 per cent. So we are really talking about a tiny number. Stoppages are themselves at an all time low since records started 84 years ago, in 1920. In 2003, there were just 133 stoppages.
Our review of the Employment Relations Act 1999 noted that industrial action remained relatively low in the UK since the eight-week period of protection was introduced. In fact, stoppages have been going down to an all time low. The extension to 12 weeks will not adversely affect the amount of strike activity. It may give valuable additional time on occasions for parties to resolve disputes amicably before the potential sanction of dismissal becomes available to the employer.
We have listened to the views on all sides, and believe that the Government should lend our support to the amendment and the amendment grouped with

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it. We do not believe that it will adversely affect employers or the climate of industrial relations, so I strongly commend it to the House. I thank the Opposition for their attitude to it.
Baroness Turner of Camden: My Lords, I welcome the amendment. As has been said, it is the same as an amendment that my noble friends and I tabled at an earlier stage of the Bill. The unions welcome the change. It is progress, so I thank my noble friends for the acceptance of the case that we made.
On Question, amendment agreed to.
Clause 28 [Inducements relating to union membership or activities]:
Lord McCarthy Lord McCarthy moved Amendment No. 14:
Page 31, line 42, leave out "sole or main"
The noble Lord said: My Lords, we are coming back now to our old friend "sole or main". We do not apologise for that. We are coming back to our old friend the Wilson-Palmer judgment, and we do not apologise for that. We accept that the Government have gone a long way in trying to come to terms with the Wilson-Palmer judgment. It is difficult in the sense that we get decisions out of the international courts, but they do not always give us the precise words that we should put in our statutes in order to comply with what they want us to do. Therefore, there is an area in which the Government have to work it out for themselves, which is what they have done.
In our opinion, and in that of all kinds of authorities—I trotted them out last time that we debated the matter, so I shall not do so tonight—there are two ways in which the Government have not yet fully complied with the Wilson-Palmer judgment. The second—the provision of appropriate rights for the trade unions involved—will be dealt with by my noble friend on the next amendment. I am talking not about that, but about our old friend "sole or main".
The Government have said that there must not be discrimination or inducement short of dismissal if the "sole or main purpose" is to discriminate. We say that the provision should simply say "purpose", not "sole or main purpose", for several reasons. The most important reason is that it is unenforceable, in practice. Once one says "sole or main", the employer can say, "That wasn't my main purpose; it was just a passing purpose. It is true that as a result of this, people do not have collective bargaining rights and cannot have grievances any more. It is true that a lot of people dropped out of the union, but that's incidental. My main purpose was to improve industrial relations or some other thing". There is nothing in the provision to say what that other thing should be. Making the provision unenforceable is not what the court wanted the Government to do.
The employer could do many things if the provision did not say "sole or main", but simply "purpose", which is what we want. The argument of the Government against our attempt to take "sole or main" out of the Bill, if I understand it so far, is that it would unfairly restrict the ability of British employers
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to maintain and improve their efficiency. We never get examples of what British employers will not be able to do if the Bill says "purpose", not "sole or main purpose". I would like to know.
Suppose an employer wants to promote someone because he thinks that they are a better performer than someone else. So long as he does not discriminate—so long as it cannot be shown at a tribunal that the only people whom he promotes are non-unionists—what is the problem? It is only if he has the nefarious purpose of an undercover desire to discriminate against trade unionists that he cannot do what he wants to do.
Suppose he wants to give plus payments based on performance. Suppose he wants to rejig the joint valuation scheme. No one is preventing him from doing that—you could do that in unionised and non-unionised places of work. There is no reason why certain aspects of the relationship between the employer and the individual worker should not be subject to collective bargaining—and many agreements have that provision. Collective bargaining does not count for everything anywhere. So I can see no reason, if the amendment was accepted. that it would prevent in any way a British employer keeping his organisation up to date. But, it would do something to prevent some discrimination. Therefore we ask the Government to consider the matter again. I beg to move.
8.30 p.m.
Baroness Turner of Camden: My Lords, we return to this issue because it is an important part of the Bill. Part 3 is about inducements to workers made by employers to make them abandon union representation. As it stands, the Bill would allow an employer to plead that offering inducements to abandon union membership or activities or the right to be represented was not his sole or main purpose. The words "sole or main" give the employer a loophole to construct all kinds of other reasons, once challenged at a tribunal. The Select Committee on Human Rights has already drawn attention to the problems that this matter could raise and the Government have been inclined to agree that, in any event, the whole issue should be kept under review.
The Third Reading presents a last chance, as I see it, to try to get the wording right—and by that I mean, beyond challenge, because I do not believe that it is beyond challenge now. What is wrong with having wording that simply refers to the "purpose" of the employer, as suggested by my noble friend in moving the amendment? I hope that my noble friends on the Front Bench will reconsider their attitude, because the matter is important.
Baroness Miller of Hendon: My Lords, the noble Baroness and the noble Lord have pursued this amendment throughout the passage of the Bill. The reasons why it cannot be accepted that have been given previously are still valid. They are reasons with which I entirely agree. It would be too rigid and too prescriptive. It would mean that there could be no deviation whatever, for whatever cogent reason there

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may be for an individual employer and employee to vary a collective agreement made with the union, or for that matter, for an individual firm, or branch to enter into a separate agreement with all of its employees, varying a collective agreement affecting a whole ind ustry.
I have the greatest respect, admiration and, indeed, affection for the noble Baroness. But her attitude to the immutability of a collective agreement reminds me of the Ruhaiyat of Omar Khayyam:
"The moving finger writes; and, having writ, moves on: nor all thy piety nor wit shall lure it back to cancel half a line, nor all thy tears wash out a word of it".
Collective agreements are not written by the moving finger of fate nor are they set in concrete. There will undoubtedly be occasions when employers and employees may find it necessary and reasonable to enter into arrangements that vary from some collective agreement.
In a free society there is no reason whatever why they should not be allowed to do so. There is no reason why they should be bound by a rigid regime based on the principle that the union knows what is best for individual workers or for their employers.
I am not going to cite specific examples, but your Lordships will be aware of instances where strict adherence to demarcation lines have resulted in industrial disputes and even inter-union disputes—in one set of cases contributing to the demise of the ship-building industry. It may be necessary to depart from a collective agreement to allow for more flexible working, either as to hours worked or flexibility over the tasks to be performed.
If the amendment is carried it would mean that there could be no variation from a collective agreement, however valid, however necessary and however urgent the need. I also have strong personal reasons for supporting the wording as it now appears in the Bill. Perhaps my one and only historical claim to legislative fame is, or was, Section 17(4) of the 1999 Act, which specifically permitted variations from collective agreements under clear and strict conditions.
Those conditions expressly prohibited variations which might inhibit a worker from being a member of a union, or from supporting a recognition vote, or from participating in union activities. In that respect, I had anticipated by some five years the decision of the European Court of Human Rights in the cases of Wilson and Palmer.
This amendment was designated by the TUC as "the Miller amendment" when it immediately demanded its repeal. It will in fact be removed from the statute book when this Bill is passed, the section never having been brought into effect by the Government.
Throughout the passage of this Bill, and particularly when I reintroduced the Miller amendment in Grand Committee, the Government have insisted that the provision to which they had solemnly bound themselves in a compromise agreement made with me at the beginning is that it would be covered by the
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inclusion of "sole or main", which they say means that some variations from a collective agreement can be definitely permitted.
I want to quote the words of the noble Lord, Lord Sainsbury, in response to my amendment. He said:
"To motivate employees, all sorts of performance pay systems are in force…We have no desire to restrict employer freedoms in this area, as long as their actions are driven by the right business motives. We believe, however, that the existing wording of these clauses, including Clause 28, already provides the necessary safeguards and flexibilities".—[Official Report, 15/6/04; col. GC148.]
I promised the Minister that I would carefully consider his remarks, as I always do, and in fact during the Recess I had a very useful meeting with the noble Lord, Lord Triesman, and subsequently some discussions with officials at the DTI. I have again been reassured that the use of the words "sole or main" in the Bill absolutely ensures that bona fide agreements between employers and employees varying collective agreements are still permitted as long as they are for genuine business motives and do not inhibit a worker's rights to belong to a union or to engage in its activities. I have also been assured by the noble Lord, Lord Triesman, that the Government have had their opinion confirmed by counsel.
Finally, I have been promised that the Minister, when he replies to the debate, will confirm the Government's and counsel's interpretation of the legal position as well as their attitude stated in Grand Committee. I look forward to hearing the Minister repeat his rejection of this amendment and re-assertion of the principles of freedom of negotiation that I had previously established with the Government in the 1999 Act.
Lord Sainsbury of Turville: My Lords, I shall speak to Amendments Nos. 14, 17, 22, 23, 24 and 26. These amendments remove the various references in Clause 28 to the "sole or main" purpose of the employer making offers. We discussed the same or very similar amendments both in Grand Committee and on Report. This is therefore well-trodden ground and, in responding to these amendments, I will need to repeat points I made at those earlier stages in the Bill's passage.
The words "sole or main" are an essential component of the regime we are seeking to construct. They are necessary to ensure that employers have some flexibility in setting their reward systems. The noble Lord, Lord McCarthy, asked for examples of what we meant and then proceeded to give some good ones. The noble Baroness, Lady Miller, gave some more.
Why do we not agree to the proposal? We do not consider that employers should be prevented from making offers for justifiable business purposes just because a by-product is that a worker accepting the offer will not or will cease to have some of his terms determined under a collective agreement. That would, I fear, be the effect of these amendments.
I assure the noble Baroness that our proposals would retain the freedom of employers to pay workers more than the amount set in collective agreements in

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recognition of the extra contribution they make to the business. As I said in Grand Committee, we want to allow employers to reward success and keep hold of key staff. Often collective agreements give considerable scope for such additional payments to be made to key workers. However, in cases where they do not, our proposals will ensure that offers of additional payments which represent a departure from the collectively agreed amount would be lawful where the sole or main purpose of the offer was not to undermine the collective agreement to reward the workers involved.
That has been our deliberate policy intention from the outset in devising our response to the Wilson and Palmer judgment. Indeed, we made our intentions clear in this matter over a year ago when the initial findings of the review of the 1999 Act were published. As ever, the legal draftsmen have carefully carried out our wishes in this respect: necessary pay flexibility will be retained.
My noble friends consider that the sole or main test will allow employers who are ill-intentioned to evade the law. We do not share that view as tribunals are expert at making the kind of judgments required and can distinguish between true and fabricated accounts by employers of their underlying purpose. That is what they do every day in unfair dismissal cases. To assist the tribunals, we have placed the burden on the employer to demonstrate what was the sole or main purpose of his actions.
We believe that our proposal is compatible with the Wilson and Palmer judgment and fully respects the human rights of trade unionists. The Joint Committee on Human Rights has considered the matter in some detail and it accepts that there is a case for retaining the sole or main purpose test.
As we confirmed on Report, the Minister with responsibility for employment relations, Gerry Sutcliffe, has also written to the Joint Committee confirming that the Government will monitor the operation of these provisions when they come into force. Therefore, we shall monitor the provisions to make certain that they act in the way that we want. In the light of that explanation, the Government cannot accept the amendment and, once again, I ask my noble friend to withdraw it.
Lord McCarthy: My Lords, what surprises one most is the a priori certainty that the people who oppose the amendment have in the face of what is basically an empirical question. I am perfectly prepared to take the empirical test, and in effect that is what the Joint Committee is saying. If, in the next two or three years, we have a spate of cases before tribunals in which workers allege that they have been discriminated against and the tribunals say, "Well, sole or main; we haven't proved that", surely that would be evidence.
The Minister says that he is certain that if we pass this provision as it is and if our amendment is not accepted, it will be perfectly all right. I cannot prove that it will not be perfectly all right, and so there is an
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empirical proof. If workers go to a tribunal, they may think that it is all useless, but ultimately we should have some information as to whether it is true that tribunals can distinguish. Perhaps I may say to the Minister that it is not saying much to state that tribunals distinguish other things. They sometimes do it very badly, and we have evidence of that.
Therefore, we are not automatically satisfied with the distinctions that tribunals make and we do not know how this measure will work out. In a few years' time, an empirical investigation somewhere will tell us whether this sole or main test is worth the paper that it is written on. I am saying that we should give the workers the benefit of the doubt. I say that because I am never told—I have not been told tonight—what the improvements in efficiency and effectiveness are that will raise productivity, which cannot be done unless trade unions are discriminated against. If you want variations, you can negotiate them. Collective agreements are not monoliths. Of course, you can negotiate them or you can give people things because they are meritorious and efficient so long as you do not do so with a discriminatory purpose in order to drive them out of a union. That is all.
The Government say, "Oh, it will be all right because the tribunals will be able to tell". We say, "We don't think so", and so we say that we should wait and see. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Triesman Lord Triesman moved Amendment No. 15:
Page 32, line 26, after "worker" insert "or former worker"
The noble Lord said: My Lords, this group of amendments makes two specific sets of changes to the clauses of the Bill that implement the European Court's judgment in the cases of Wilson and Palmer. The first set of amendments deals with an issue raised by the Joint Committee on Human Rights about members of non-recognised unions. The second set deals with the definition of a worker for the purposes of the new rights and the existing protections against detriment. I shall deal with them in turn.
The Joint Committee on Human Rights has drawn attention to the fact that new Section 145B provides rights to the members of recognised unions only. They consider that, in cases where a union is seeking recognition, new Section 145B needs to provide comparable protections to ensure that members have the right not to be offered inducements by the employer for the purpose of securing that their terms will not be determined by collective agreement in the future. In Grand Committee we gave an undertaking to look closely at the point.
Having looked at the arguments put forward and consulted with stakeholders, we have concluded that the Committee's analysis is correct. We had previously considered that the statutory recognition procedure would provide sufficient protection in these circumstances, and deter employers from making offers of this type. However, as the JCHR has pointed

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out, the statutory procedure has many stages within it and does not provide a speedy remedy. And, of course, it does not apply to all sizes of employer.
My noble friend Lord Sainsbury also mentioned in Grand Committee that extending the protections in Section 145B might create inter-union difficulties where a non-recognised union could use the new right as a lever to challenge or inconvenience an established union which was already recognised. We have examined that possibility very carefully. We have concluded that union rivalry, although much diminished in today's climate of industrial relations, can still surface from time to time. However, although we think it conceivable that an employer might make offers of this kind to the members of a rival non-recognised union, we do not think this is likely to occur in practice. If it did, we do not think the members should be without the protection given by the clause; an employer has a number of ways in which he can resist granting recognition rights to a rival unrecognised union and he should not attempt to do so by offering inducements to its members.
Finally we do not think, having further considered the matter, that there are any circumstances in which it is realistic to envisage an unrecognised union being able to make use of the protections as a lever to challenge the position of a recognised union. So, to ensure our compliance with the ECHR judgment, we believe that the scope of new Section 145B can safely be extended without threatening the stability of industrial relations.
The amendments will work in this way. Currently, Section 145B applies to a worker who is a member of an independent trade union which is recognised. Amendment No. 16 includes workers of a union which is seeking to be recognised, thus ensuring that those workers are protected. Amendment No. 18 accordingly expands the "prohibited result" provided for in Section 145B(2) to ensure that inducements made with the sole or main purpose of preventing individuals from having their terms of employment agreed by collective bargaining in the future are also covered. Amendment No. 25 makes a consequential change to new Section 145D(4) which sets out a number of matters which the tribunal must take into account when assessing the employer's sole or main purpose.
I shall describe the second set of amendments briefly. It concerns the definition of a worker for the purposes of Sections 145A to 145E, and for the purposes of the existing Sections 146 to 150 of the 1992 Act.
The facts of the Wilson and Palmer cases concerned the position of employees who were union members. However, the court's reasoning would equally apply to other categories of worker in employment. Clauses 28 and 29 of the Bill therefore apply both the new rights regarding offers and the related existing rights within Section 146 of the 1992 Act to the broader group of worker.
We have, however, noticed a technical flaw in the result produced by the new provisions. The definition of worker, which is given in Section 296 of the 1992
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Act, covers people seeking work and, unlike the definition of employee, is not limited solely to those who are in, or have been in employment. It was never our intention that the protections should extend to those seeking work. Their trade union rights are contained in Section 137 of the 1992 Act. It would create confusion and uncertainty if we created overlapping rights for that particular group of people within different parts of trade union law.
So, to avoid such confusion and ensure that the rights are confined to the target group, these amendments secure that the definition of "worker" is adjusted so as not to apply to those seeking work.
These amendments implement a recommendation of the Joint Committee on Human Rights. They make technical changes to ensure that the Bill fits more smoothly into the substantial body of existing trade union law. I am sorry about the complexity of them but I do commend them to the House. I beg to move.
Baroness Turner of Camden: My Lords, as my noble friend has said, the issue of unrecognised unions was raised by a number of noble Lords during previous discussion of the Bill. We were concerned that the protections did not at that time extend to members of unions seeking recognition. That has now been remedied in these amendments and I am very grateful for it.
On Question, amendment agreed to.
Lord Triesman Lord Triesman moved Amendment No. 16:
Page 32, line 31, after "recognised" insert ", or seeking to be recognised,"
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
Lord Triesman Lord Triesman moved Amendments Nos. 18 and 19:
Page 32, line 39, leave out "no longer" and insert "not (or will no longer)"
Page 33, line 1, after "worker" insert "or former worker"
On Question, amendments agreed to.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 20:
Page 33, line 3, at end insert—
"( ) An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section.
( ) If the tribunal finds the complaint well-founded, it may make a declaration to that effect."
The noble Baroness said: My Lords, noble Lords will recall that one of our complaints during an earlier debate on the Bill was that although a remedy existed for an individual employee offered an inducement to abandon union membership or representation, no remedy was offered to the union, although its rights had also been breached by the employer's activity. Indeed, the Joint Committee on Human Rights also drew attention to the fact that in these activities the union's rights would also have been breached.
During earlier discussions we sought to write into the Bill a remedy for a union so affected, but the Government were not disposed to accept it. We slightly reworded our original amendment and I think that we have made the situation a bit clearer. The amendment provides:
"An independent trade union may present a complaint to an employment tribunal on the grounds that an employer has made an offer or offers to a member or members of that union in contravention of this section",
and,
"If the tribunal finds the complaint well-founded, it may make a declaration to that effect".
It seemed to us a reasonable way in which to offer some sort of remedy to the union.
The Government have said in previous discussions that the amendment was not necessary because the union had other means of enforcing its rights. I do not think that that will meet the situation. It is not clear from the Bill because the Bill deals specifically with inducements offered to get people to abandon union representation. It is necessary to set out in this Bill a remedy for the union whose rights have been breached by the activities of the employer. I beg to move.
Lord McCarthy: My Lords, this is the issue on which the Joint Committee was most specific. It said that the unions should have rights and that these rights were specified in the judgment of the court. There is no debate about this at all. The Government have helped to do something, as my noble friend just said, to implement a bit more of the judgment, but they have not got there yet, and certainly not on this one. Indeed, when we discussed this on Report, the Minister said that that was true. You are right, he said, that is what the Joint Committee said. So he submits that he is out of step with the Joint Committee.
I want to read what he then said because I want to ask what he has done about it. He said:
"This is in fact a far-reaching idea which runs counter to the way all other individual employment rights are currently enforced".
So far, we are not coming to terms with what the Joint Committee said. So I would like to ask what that means. I have asked several noble lawyers this and they cannot tell me what it means to say that to give a union a right in front of an industrial tribunal because its members have been wronged would be counter to the way all other individual employment rights are currently enforced. But all other individual employment rights are not of this kind. What problem would there be—especially since that is what the Joint Committee says and what the Wilson and Palmer judgment says? What would be the difficulty?
He continued:
"it requires very close consideration indeed. We are therefore seeking the views of key stakeholders"—
I thought that we might get a definition of stakeholders. I have never yet seen a definition of stakeholders, but perhaps the Minister will give us one tonight—
"both employer bodies and unions"—
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so that is what they are, really—
"before finalising our position".
But which unions? All the unions in the TUC? All unions that say that they have had this problem? He said:
"For example, just yesterday my colleague Gerry Sutcliffe met a delegation from the NUJ that included Mr Dave Wilson of Wilson and Palmer".
So there is a bit of research going on here. That is good.
"These consultations will be completed by Third Reading".
But we have not heard about them.
"In the light of the ongoing consultations on both issues, I ask my noble friends to withdraw their amendments".—[Official Report, 8/7/04: col. 938.]
The Government ought to tell us what has happened with all that talk to all those stakeholders. Have they found ways in which the judgment does not say what I think it says but what the Minister told me it says? Have they found ways in which enforcing the judgment would run counter to the way that individual employment rights are currently enforced? I should be very interested to know what Mr Dave Wilson of Wilson and Palmer thinks of it all so far. I support the amendment.
Lord Triesman: My Lords, this amendment deals with whether the union should have a right to seek a remedy in its own name. As has been pointed out, that is one of the issues raised by the Joint Committee on Human Rights. We indeed discussed the point in Grand Committee and on Report. In response, we said that the Government would look closely at the points raised by the JCHR and return to the matter on Third Reading.
Consultations have taken place with key stakeholders. The DTI has consulted the TUC, the CBI, the EEF and the NUJ, including Mr Wilson, and I know that others have also written and made their views known. I do not intend, nor would the House expect me, to comment on the views of some individual members in unions, other than to say that their views were considered in some detail.
I can respond to the amendment and come back, as we promised that we would, with our considered view. It is a difficult issue. I know that my noble friends and the trade unions hold strong convictions on this subject. However, on balance, we believe that the Bill should be left as it is. As a result, we resist the amendment. There are several reasons for that attitude and I think that, in view of what has been said, I should go through them.
At the moment, the clauses are constructed in a way that provides rights to individual union members. The rights are then enforced in the normal way by those individuals complaining to an employment tribunal. The construction of the new rights therefore follows the established pattern which, by and large, has worked satisfactorily. We therefore do not want to move away from that tried and tested approach by creating an entirely new enforcement mechanism for unions to complain independently.
9 p.m.
My noble friends have said that the terms of the European Court's judgment in the Wilson and Palmer case require us to establish this new remedy for unions. They quoted from the judgment at some length on Report. However, we have considered this matter carefully, in the light of all the representations and arguments made to us and the Joint Committee's comments. We do not think that it follows that we need to create a separate union remedy in our domestic law simply because the European Court refers to the rights of unions under Article 11 of the European convention. The Article 11 rights of the union can be adequately safeguarded by assigning rights to union members under our domestic law and providing remedies for those members to enforce their rights. In other words, we remain strongly of the view that we are adequately protecting the Article 11 rights of the union, as the judgment requires, by providing a right for union members to complain about breaches of their own rights.
I think that the Joint Committee on Human Rights saw the strength of that argument. It expressed concern, however, about the protections available to the union where none of its members was prepared to make a complaint. This is largely a practical issue. Of course, neither the Government nor unions can force union members to make complaints; that is quite rightly a matter for them as individuals. However, it is normal practice in such situations for unions to advise and assist their members in making complaints and in providing free of charge the legal advice and services that they may need. I have seen that over many years in practice. There are also strong statutory protections against the victimisation of workers who make complaints to tribunals about infringement of statutory rights. I am therefore confident that individuals would complain if significant breaches of their trade union rights arose in practice.
I understand that my noble friends take a different view and feel that union members might well be intimidated by their employers and therefore unwilling to complain to a tribunal. However, if that issue is really a problem in practice, it will not disappear by providing a separate remedy for unions. To progress their own cases, unions will need the active support and participation of those very members in providing evidence. If they are so intimidated by their employers as to prevent them from making complaints in their own name, it is highly unlikely that they will lend their support to the union in bringing its complaint. Anyone who has operated in the practical world of trade unions when trying to remedy such issues will know the truth of that.
We have tabled further amendments for Third Reading which extend the new protections to union members seeking recognition. We are satisfied that with these further amendments the Wilson and Palmer judgment will be given full effect through the provisions in the Bill. I know that my comments will disappoint my noble friends, but the Government are satisfied that their proposed approach to enforcing these rights is robust and compatible with our
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obligations under the European convention. In that light, I ask my noble friend to withdraw her amendment.
Baroness Turner of Camden: My Lords, I thank the Minister for his comprehensive response, although he will not be surprised to know that we find it rather disappointing. He acknowledged that unions would be disappointed because their view is that they should have a right that should be enforced within the context of the Bill. I am disappointed because reliance on individual rights does not always produce justice; it is often difficult for individuals to stand up and be counted and to have their case taken forward. That applies in other legislation, including equal rights legislation, where one must find individuals to take forward a case. It is not always easy to do that. That is one of the reasons why unions, my noble friends and I wanted written into the legislation a protection of union rights. That proposal was supported by the Joint Committee on Human Rights, which recommended that there should be a remedy for unions and that it should be written into the Bill.
One can only hope that, when the legislation is in place, it will be possible for the protection to which the Minister refers to be fully operative, and for individuals to be protected. That is really what we are talking about. If you give unions the right to take cases forward, you are protecting individuals, who do not have to stand up to be counted and run the risk of being intimidated by their employer. There is no point in proceeding any further with the matter at this stage. I am disappointed: I had hoped that there would be a change of view as a result of the consultations that I knew were taking place. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Triesman Lord Triesman moved Amendment No. 21:
Page 33, line 9, leave out "worker" and insert "complainant"
On Question, amendment agreed to.
[Amendments Nos. 22 to 24 not moved.]
Lord Triesman Lord Triesman moved Amendment No. 25:
Page 33, line 32, at end insert—
"( ) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining,"
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Lord Triesman Lord Triesman moved Amendments Nos. 27 and 28:
Page 34, line 30, at end insert—
"(2A) In sections 145A to 145E
"worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and
"employer" means—

(a) in relation to a worker, the person for whom he works;

(b) in relation to a former worker, the person for whom he worked."

Page 34, line 31, leave out "worker" and insert "person"
[LORD TRIESMAN]
On Question, amendments agreed to.
Clause 29 [Extension of protection against detriment for union membership etc.]:
Lord Triesman Lord Triesman moved Amendments Nos. 29 to 31:
Page 34, line 38, leave out ", (3) and (5)" and insert "and (3)"
Page 35, line 2, at end insert—
"( ) In subsection (5), for "An employee" substitute "A worker or former worker"."
Page 35, line 10, leave out subsection (7) and insert—
"( ) In section 151 of the 1992 Act (interpretation of sections 146 to 150 and supplementary provision), after subsection (1A) (which is inserted by section 30) insert—
"(1B) In sections 146 to 150—
"worker" means an individual who works, or normally works, as mentioned in paragraphs (a) to (c) of section 296(1), and
"employer" means—

(a) in relation to a worker, the person for whom he works;

(b) in relation to a former worker, the person for whom he worked."

( ) In subsection (2) of that section, for "an employee" substitute "a person"."
On Question, amendments agreed to.
Clause 32 [Exclusion or expulsion from trade union attributable to conduct]:
The Deputy Speaker (Lord Geddes): My Lords, before I call Amendment No. 32, I should advise the House that, if it is agreed to, I will not be able to call Amendment No. 33, due to pre-emption.
Lord Triesman Lord Triesman moved Amendment No. 32:
Page 37, line 40, leave out from "of" to "it" in line 43 and insert "conduct of the complainant which was contrary to—

(a) a rule of the union, or

(b) an objective of the union,"

The noble Lord said: My Lords, Clause 32 gives employment tribunals greater discretion to decide the amount of a compensatory award in cases in which an exclusion or expulsion was unlawful because it was mainly attributable to membership of a political party. It disapplies the current minimum award where there were other subsidiary reasons for the union's decision that concerned conduct that was contrary to the union's rules.
During the passage of the Bill, we have discussed the need to ensure that the statute places reasonable obligations on individuals to act in accordance with widely available and accessible information on the union's policies and positions. That is why we refer to the union's rules in the current wording of the clause. However, it must be said that union rule books vary. Some explicitly refer to the union's opposition to racist attitudes or conduct, while others specify only a few proscribed behaviours and leave it to other union documents to set out the union's position on such matters. It is often in such documents that a union's objectives on equality are made known to union members and others.
We recognise, therefore, that there are justifiable concerns about the adequacy of relying only on rule books to ascertain the union's position on equality issues. As a result, we gave commitments in Grand Committee to look again at the area. We have worked closely with the TUC to devise alternative wording that meets the needs of unions and our requirement for transparency, and I am pleased to be able move Amendments Nos. 32 and 34 to meet that need.
I shall say a word about how the amendments will work. In combination, the amendments disapply the minimum award, where the subsidiary conduct is contrary to the union's rules or contrary to the union's objectives, provided that it was reasonably practicable for the person concerned to have ascertained the objectives in question. Because we think that more information about a union's objectives is likely to be available to union members than non-members, the requirements are cast differently for those different groups.
The amendments give the degree of transparency that we have been aiming for and improve the practical implementation of the clause. They satisfy the TUC's concerns on this point, and I hope that noble Lords in all parts of the House will accept them.
The Deputy Speaker referred to the amendment tabled by my noble friend Lady Turner of Camden. She seeks to achieve a similar result by broadening the test that disapplies the minimum award by adding subsidiary behaviour that is contrary to the stated objectives of the union. As was mentioned in Grand Committee and on Report, the fact that something is stated does not necessarily mean that it is sufficiently accessible to the relevant individuals and therefore capable of influencing their conduct. Our fear is that the wording of the amendment would give rise to unnecessary legal debate before the tribunals. The Government have tabled amendments on the matter that meet all the concerns, and, in that light, I invite my noble friend to withdraw her amendment.
In summary, one of the tremendous strengths of the discussions in all parts of this House was the desire to ensure that racist conduct does not afflict unions any more than any other institutions in our society. That has been one of the guiding and driving principles. I thank noble Lords on all sides for their absolute determination to ensure that that happened. I beg to move.
Lord McCarthy: My Lords, we have withdrawn our amendment because the Minister made some very effective points when we last discussed this issue. Now our amendment is not suitable. However, I am not sure about the Government's amendment. I understand that the TUC thinks that it is probably better than the previous one, which it believes was subject to the kind of difficulties of interpretation that the Minister mentioned in the House.
The words,
"reasonably practicable for that objective to be ascertained"

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worry me. I do not know who has to ascertain the objective. There are the two conditions that have to be accepted in order for a person to be rightfully expelled. New subsection (1D) of Amendment No. 34 states:
"A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective…it was reasonably practicable for that objective to be ascertained".
Does that mean that the tribunal believes that the objective can be ascertained? "Ascertained" is a funny word. Does it mean that the union should say that it has ascertained it? I do not understand why a statement that someone is anti-racist or if members are caught in racist activities or if they express racist statements of various kinds indicates that the objective can be ascertained. The amendment does not refer to evidence: it refers to "ascertained". I am asking very nicely, late at night, for the Minister to tell me what ascertained means and whether it could be improved on and made clear on going back to the other place.
Lord Triesman: My Lords, in circumstances where an individual's subsidiary behaviour is considered by an employment tribunal, without question it will have the expertise to determine what information was generally accessible by looking at the union's statements and documentation at the time of the exclusion or expulsion and taking account of availability and whether there was any reasonable impediment to someone seeing that material. Perhaps I may say that employment tribunals do that routinely when they consider the general platform of equality and discrimination, in particular when it is said that the union might have been the body that discriminated. That is part of their expertise in looking across the evidence. The evidence is always looked at in very considerable detail.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, as already advised to the House, since Amendment No. 32 has been agreed to, I cannot call Amendment No. 33 due to pre-emption.
Lord Triesman Lord Triesman moved Amendment No. 34:
Page 37, line 43, at end insert—
"(1C) For the purposes of subsection (1B), it is immaterial whether the complainant was a member of the union at the time of the conduct contrary to the rule or objective.
(1D) A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective in question, it was reasonably practicable for that objective to be ascertained—

(a) if the complainant was not at that time a member of the union, by a member of the general public, and

(b) if he was at that time a member of the union, by a member of the union."

On Question, amendment agreed to.
Lord Triesman Lord Triesman moved Amendment No. 35:
After Clause 43, insert the following new clause—

ENFORCEMENT NOTICES
(1) Section 19 of the National Minimum Wage Act 1998 (c. 39) (enforcement notices) is amended as follows.
(2) After subsection (2B) insert—
"(2C) Where an enforcement notice imposes a requirement under subsection (2) above, the amount specified in the notice as the sum due to the worker under section 17 above need not include any sum so due to him in respect of any very recent pay reference period (although the amount so specified may include any such sum).
(2D) In subsection (2C) above a "very recent" pay reference period means a pay reference period ending less than 3 months before the date on which the notice is served."
(3) In subsection (3) for "The same" substitute "An".
(4) Nothing in this section affects section 19 of the National Minimum Wage Act 1998 (c. 39) as it has effect for the purposes of the Agricultural Wages (Scotland) Act 1949 (c. 30)."
The noble Lord said: My Lords, in speaking to Amendment No. 35, I shall speak also to Amendments Nos. 36 to 41. This is a short package of further amendments that make detailed improvements to the existing procedures for enforcing the minimum wage. Amendment No. 35 makes it clear that while enforcement notices relating to the arrears due must cover all pay periods up to three months before the date of the notice, they need not cover more recent periods. This is helpful because in most cases it is impractical for notices to cover pay periods running right up to the date of their issue.
Amendment No. 36 has the effect that if a replacement enforcement notice is served on an employer that incorrectly covers any new workers who were not covered by the first notice, it is treated as a replacement notice that attracts the automatic consequences set out in new Section 22A(3) of the National Minimum Wage Act 1998, as inserted by Clause 44(1) of this Bill. In particular, it will not be possible to issue any penalty notice following on from the first enforcement notice, and any penalty notice served in respect of the first notice will cease to have effect. The overall effect is to deter compliance officers from issuing incorrect notices in this way.
Amendment No. 37 makes it clear that when a replacement notice is issued in respect of a first notice that makes use of all or nearly all of the six-year limitation period—the period for which arrears may be recovered—the replacement notice runs back from the date when the first enforcement notice was issued and not the date of issue of the replacement notice. The amendment avoids the unsatisfactory position that would result if the replacement notice could not go as far back as the first notice.
Amendment No. 38 makes it clear that the replacement notice may be appealed against if it covers a pay reference period ending more than six years before the notice is served.
Amendment No. 39 has the effect that the new provisions allowing for the withdrawal and replacement of enforcement and penalty notices will apply to the enforcement of the agricultural minimum wage in England, Wales and Northern Ireland, as well as the national minimum wage.
Amendments Nos. 40 and 41 are tidying amendments to reflect the fact that we have incorporated the present Clause 45 of the Bill into new Amendment No. 35. I beg to move.
On Question, amendment agreed to.
Clause 44 [Withdrawal and replacement of notices]:
Lord Triesman Lord Triesman moved Amendments Nos. 36 to 39:
Page 48, line 11, at end insert—
"( ) If the new enforcement notice contravenes subsection (3)—

(a) the case shall be treated as falling within paragraph (b) (or, if none of the workers included in the old enforcement notice is included in the new enforcement notice, paragraph (a)) of section 19(6); and

(b) the new enforcement notice is not to be treated for the purposes of sections 22A(2), 22C(1) and 22D(1) as served in accordance with this section."

Page 48, line 17, at end insert—
"( ) Subsection (4) is subject to section 19(2B) to (2D) as they apply in relation to the new enforcement notice; but section 19(2B) applies in relation to that notice as if the reference to 6 years before the date on which the notice is served were a reference to 6 years before the date on which the old notice was served."
Page 51, line 35, leave out from "paragraph" to end of line 36 and insert "(c)—

(a) in sub-paragraph (ii), for "incorrect;" substitute "too great; or"; and

(b) after that sub-paragraph insert—

"(iii) that the notice contravenes subsection (2B) above;"."
Page 51, line 46, at end insert—
"( ) In each of—

(a) section 3A(2)(c) of the Agricultural Wages Act 1948 (c. 47), and

(b) Article 8A(2)(c) of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (S.I. 1977/2151 (N.I.22)),

(enforcement of agricultural wages legislation in England and Wales and Northern Ireland respectively), for "22" substitute "22F"."
On Question, amendments agreed to.
Clause 45 [Enforcement notices relating to more than one worker]:
Lord Triesman Lord Triesman moved Amendment No. 40:
Leave out Clause 45.
On Question, amendment agreed to.
Clause 57 [Corresponding provision for Northern Ireland]:
Lord Triesman Lord Triesman moved Amendment No. 41:
Page 60, line 24, leave out "45" and insert "44"
On Question, amendment agreed to.
Schedule 1 [Minor and consequential amendments]:
Lord Triesman Lord Triesman moved Amendments Nos. 42 to 48:
Page 62, line 25, at end insert—
"In section 82 of the 1992 Act (rules as to a union's political fund), for subsection (4) substitute—
"(4A) Where an order has been made under this section, any person who is a member of the union and was a member at the time it was made is entitled to enforce obedience to the order as if he had made the complaint on which it was made.
(4B) An order made by the Certification Officer under this section may be enforced—

(a) in England and Wales, in the same way as an order of the county court;

(b) in Scotland, in the same way as an order of the sheriff."

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In section 103 of the 1992 Act (complaints as regards passing of resolution on amalgamation or transfer of engagements), in subsection (8), for "application" substitute "complaint"."
Page 63, line 13, at end insert—
"In section 229(4) of the 1992 Act (statement which must appear on voting paper in ballot for industrial action), for "eight" substitute "twelve"."
Page 64, line 10, leave out ""68(11)" substitute "68(4)"" and insert ""section 68(11)" substitute "sections 68(4), 145F(2A) and 151(1B)""
Page 65, line 35, at end insert—
"( ) In paragraph 119 (remedial orders) omit sub-paragraph (3)."
Page 66, line 6, after "paragraphs" insert "119A(2A)(a)(ii),"
Page 66, line 10, leave out "119(3)(a) and 119H(1)" and insert "119H(1) and 119I(1)(a)"
Page 66, line 12, after "paragraphs" insert "119A(2A)(a)(ii),"
On Question, amendments agreed to.
Schedule 2 [Repeals]:
Lord Triesman Lord Triesman moved Amendment No. 49:
Page 69, line 48, after "113(2)(a)" insert ", 119(3)"
On Question, amendment agreed to.
Lord Triesman: My Lords, I beg to move that this Bill do now pass. I thank all noble Lords for their participation, including the Bill team.
Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.

TSE (England) (Amendment) Regulations 2004
9.17 p.m.
Baroness Byford Baroness Byford rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 18 June, be annulled (S.I. 2004/1518) [15th Report from the Merits Committee].
The noble Baroness said: My Lords, the regulations will have a great impact on farmers who breed sheep or keep goats. Concerns have been expressed to me over the scientific certainty, or lack of it, on which the regulations are based.
In its response to Defra's consultation on the implementation of the new EU-wide controls on scrapie-affected farms, the National Sheep Association has stated:
"The National Sheep Association welcomes the opportunity to respond to the [Defra] consultation on the implementation of EU-wide controls on scrapie-affected farms".
The NSA is the leading specialist representative organisation for the United Kingdom sheep sector. Its members come from those involved with every pedigree sheep bred in this country; indeed, from all the sheep breed societies. As the pedigree sector has been the one most affected by the various regulations concerned with the eradication of scrapie so far, we feel that this makes the NSA response particularly significant in the development of the resulting policy. This is in addition to a majority of members of the commercial sheep sector. We can therefore say with

669
confidence that our views are truly representative of the entire UK sheep sector. I am sure that the Minister will wish to congratulate the NSA on the work it has done to date in the eradication of scrapie.
The NSA appreciates the fact that Defra is consulting on how best to implement the new EU regulation and not the regulation itself. However, it feels that it is important to reiterate that it has grave concerns over the EU regulation that Defra is being obliged to implement. The NSA feels that it is an ill-conceived regulation, in general, with measures and provisions that are draconian in nature and totally disproportionate to the scale of the issue to be dealt with.
Indeed, the regulation is best described by the commonly used phrase "bad law" and, as such, it runs the risk of being regarded as a step too far by the many sectors of the sheep industry that may be affected by its introduction, as outlined in the consultation. The National Sheep Association feels particularly strongly about the measures proposed under the restrictions section. The proposals as outlined are very severe and, for some businesses which are reliant on the sale of store and breeding sheep, it may be that their imposition will result in the collapse of such businesses. In addition, the proposals could seriously affect the asset value of a farm should the farmer wish to sell his property while under restriction.
However, as previously stated, the National Sheep Association appreciates that Defra is obliged to implement the regulation given that it has been agreed within the EU and, as such, cannot legally be ignored. On this point, the NSA will be constructive in its response, as I am sure the Minister will acknowledge that it has been in the past. But this is set against the backdrop of its concerns over the regulation itself.
With this in mind, it is worth mentioning that it is not strictly correct for Defra to say—as it does in the letter sent out with the consultation document—that key industry representatives are content with the proposals. As the NSA, for one, most definitely is not, I ask the Minister to comment on who Defra is referring to as "key industry representatives" if they do not include the National Sheep Association.
When the Merits of Statutory Instruments Committee looked at the regulations it raised two specific points, on which it wrote to Margaret Beckett, the Secretary of State for the Environment, Food and Rural Affairs. Under the heading "Adequacy of measures proposed", paragraph 2 of the letter states:
"While the committee accepted the need to ensure implementation of European requirements, we were concerned to establish whether the Regulations and the controls introduced by them are an adequate response to the scale of the problem, given that scrapie has occurred for so many years and so widely in sheep in this country. We would be grateful if you could comment on your assessment of the scale of the occurrence of scrapie in sheep in this country, and on how quickly and effectively the approach being followed in the Regulations will succeed in eliminating the risks posed by scrapie".
The letter then goes on to refer to one or two other matters that I should like to highlight. It pointed out that the RIA of 17 June stated that 20 responses were received to Defra's consultation on the partial RIA and that,
"most thought that Option 2 as set out in the RIA was the best approach; and that a number of concerns were raised about the EU regulation which DEFRA continued to pursue with the European Commission".
The letter continues:
"In addition, your Department provided us with a copy of DEFRA's summary of responses to the consultation exercise. We were struck by the difference in tone, if not the substance, of that summary from the statement in the RIA".
The summary referred to a universal feeling that the regulation is draconian and disproportionate in its effect compared with the risk with which it deals. It acknowledges that the science on which it is based is questioned. It states that,
"the introduction of the compulsory [scheme] is resented"
The chairman of the committee said that it felt that the RIA statement on the consultation responses appeared to understate significantly the strength of concern among respondents.
I shall not read the rest of the letter, but it is important that your Lordships are aware of the serious concerns felt in the farming community.
In her response, Margaret Beckett stated that they realised that most scrapie cases are not reported so that the scale of the problem is significantly larger than the 230 cases confirmed in sheep in England in 2003. If this is the case, how many flocks does the department estimate to be infected, or is this still a totally unknown number?
In 1999, SEAC recommended the introduction of a breeding programme to eradicate scrapie from the sheep population in view of the theoretical possibility that sheep could have contracted BSE which was being masked by scrapie. How many projects have begun since 1999 to prove this theoretical possibility, how much has that cost to date and, more importantly, has any evidence been established to confirm this possible theory?
Will the Minister accept that the longer this theoretical possibility continues to be unproven, it is reasonable to conclude that a link is not established. In that case, should we really be approving a regulation which has measures and provisions that are draconian in nature and disproportionate?
This morning the Prime Minister again reinforced his Government's commitment to legislating on the basis of scientific proof. But these regulations are based on scientific uncertainty. Can the Minister explain the discrepancy? Furthermore, when the regulations were considered at drafting stage, were these issues raised, and did Her Majesty's Government agree with the drafting?
I understand that over the past few years, Defra has carried out a large survey of sheep testing. This year, for the first time, the number of animals tested has decreased from 60,000 a year to 10,000. Can the Minister tell me why?
Does the Minister recognise the success of the voluntary scheme established under the voluntary scrapie flocks scheme, which has more than 100 applications already? Does she care that these restrictive regulations may well result in a fall in the number of scrapie cases reported? I understand that the Government will monitor the situation closely and if they find that reporting decreases significantly, they will take it up with the European Commission. Over what time period will that monitoring take place? What response do the Government expect from the commission?
I raise these concerns because this will be very costly for the Government. I noticed that in yesterday's Hansard, a Written Answer in response to my noble friend Lord Marlesford showed that bovine TB has cost the taxpayer some £38 million this year alone. These are huge figures and we need to be very sure of our ground when we are committing ourselves to additional costs. At the moment, we have no idea what the costs might be. What is the estimated cost of slaughter and how much will the implementation, controls and monitoring cost? Is the true cost proportional to the risk when one considers that the Government refuse to ban smoking? That is not a light, throwaway question. It puts into context the whole question of this regulation. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 18 June, be annulled (S.I. 2004/1518) [15th Report from the Merits Committee].—(Baroness Byford.)
The Countess of Mar: My Lords, I am very sorry that the noble Lord, Lord Whitty, is not able to be with us tonight and I hope that we shall soon hear him in good voice before the House. I am sure that I carry the wishes of other noble Lords when I say that.
I am sure that the Minister and other noble Lords taking part in this debate will recall my objections to the TSE (England) Regulations 2002, which we debated in May 2002. They will not be surprised that I am very grateful to the noble Baroness, Lady Byford, for allowing me to return to the fray this evening. I declare my interest as the wife of a sheep and goat farmer. As well as being a goat cheesemaker, I take an active part in our livestock management.
I was astonished to read in the regulations that goats are to be dealt with far more harshly than sheep. In the Explanatory Memorandum is the statement:
"Goats are also susceptible to scrapie and scientific advice is that goat herds would also pose a public health risk if BSE were to be found in sheep".
May I ask the Minister exactly what is the scientific evidence upon which this scientific advice is based? Who is providing the scientific advice upon which these statements are made? Poor old goats—with no specific genotypes and little information available, it seems easier to kill them all. What an odd approach. Was it dreamt up because scrapie is so much rarer in goats than sheep, so slaughter should eliminate the
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disease, or was it that, because it is so rare, the possibility that a whole herd would have to be despatched is remote? I would hope that it is the latter.
It has already been noted that the incidence of scrapie in the sheep flock is probably under-reported. I suspect that this is simply because it is accepted that sheep out on the moors and hills die from a number of causes. Their carcasses are often eaten by foxes and other scavengers before the shepherd finds them. It is the nature of modern shepherding that the flocks are not constantly watched over. Such is the relationship of most of the goat keepers that I know with their animals that a vet would be called to attend any really sick animal. Three reported cases in eight years is likely to be an accurate reflection of the incidence in the national goat herd. It would also appear to indicate that the goat to goat transmission rate is low. If this is the case, what on earth would be achieved by slaughtering the whole herd?
Although I recognise that the Minister will say that this amendment to the 2002 regulations is to provide,
"powers for the enforcement of EU legislation introducing controls on farms that have had a confirmed case of scrapie",
it still seems extraordinary that all the plans and regulations relating to TSEs and particularly to scrapie are based upon an hypothesis that has become an assumption that it is a rogue isoform of PrP that causes TSEs.
Humans have lived with scrapie for at least 250 years and there has been no evidence that scrapie has ever been transmitted to humans, although I accept that absence of evidence is not evidence of absence. The conclusion that a single strain of the agent which causes BSE is more easily transmissible between species than previously known strains and may therefore be present in sheep still remains unsupported by critical scientific evidence.
I will repeat my concerns that, by requiring the slaughter of sheep of particular genotypes we will be depleting the gene pool in our sheep flock. We may well be laying the animals open to epidemics of TSEs other than those of which we have current knowledge, or, worse still, to some other highly infectious diseases to which the national flock is at present resistant. Why are not the sensible measures already in force sufficient? We are already required to minimise the routine spread of these not particularly infectious agents.
I note that the Explanatory Memorandum to this regulation frequently uses the terms "TSE resistant" and "resistant genotypes". Unless and until there is an adequately comprehensive list of the TSE strains tested and it can be shown that they can survive passage between animals, these terms are not appropriate. When the real molecular nature of the agent that causes TSEs is known, it may be possible to employ these terms.
Should we not be dealing with facts rather than the assumptions? I may be criticised for suggesting that we fly in the face of the precautionary principle in this instance, when I have fought long and hard for it to be exercised in the case of exposure of humans to toxic

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chemicals. I would respond by saying that there is a clear correlation between, for example, organophosphate exposure and ill health, while there is not one between naturally occurring BSE in sheep and goats and variant CJD in humans. I would argue that there is a place for proportionality.
The statement that TSEs are caused by a so-called "rogue protein"—a misshapen version of a host protein known as PrP—has never been proven. The infective PrP has never been synthesised de novo. There is, I understand, substantial evidence to show that this protein becomes misshapen by infection, rather than that it is the cause of the infection, with the causal molecule not proven. That means that the majority of the current laboratory work is uncertain in its direct relevance to the infective nature of TSEs.
There has been very little research to establish the reason why BSE was able to infect some humans across the species barrier from cattle. We need to know whether the pressure was exerted by the massive scale of the human exposure to infected beef products during the BSE epidemic or whether the cattle strain of BSE, dose for dose, is more easily transmitted to humans than current strains of scrapie or other TSEs. If the former is the case, the risk is well controlled. It is only if the latter is correct that the rigorous precautionary principles now being implemented are needed, as there is a much more serious risk when there is no species barrier, such as in human blood transfusion. May I ask the Minister whether it is the Government's intention that such research should be conducted? if she says no, then I would suggest that we should leave our sheep and goats to get on with their lives and save the taxpayer a small fortune.
I note that the Commission Regulation (EC) No. 1915/2003 requires thorough cleaning and disinfection of all animal housing on the premises following destocking and before restocking. In view of the fact that we know that total destruction of the infected material in a hospital setting is almost impossible, will the Minister please tell the House how effective disinfection of rambling farm buildings will be achieved? What about grazing land upon which infected animals may have defecated or left foetal remains? What advice has she received on these matters?
It really is time that we seriously questioned the quality of scientific advice that Ministers are receiving. I have said this from time to time over a great many years. We are repeatedly told that the scientific committees are independent. Experience has taught me that it might be true that they are independent of government but, I would suggest, they are not independent of Whitehall or some of the other organisations with whom the mandarins have close association. Too often, busy experts from fields unconnected with the subject under consideration have been expected to make recommendations which are outside their competence. It is not their fault; they do their best within their limitations. Unfortunately, I believe that this system has led to an intellectual corruption of science.
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TSE, and particularly BSE, research has been corrupted by the publicity that has been generated, first by those dreadful pictures of Daisy the cow, and then the discovery that humans could suffer from a similar awful disease. Instead of going to the centres of existing knowledge—to the people who had some understanding of the subject after working for years on scrapie—the MAFF and Defra career civil servants, through the funding agencies and the advisory committees, diverted research funding to organisations that subsequently proved their incompetence very publicly.
Progress has consistently been hindered by what I can only describe as wild goose chases. Government departments should not control basic scientific research, especially when it is in the vanguard of scientific progress. Perhaps it would be better if they were to admit that they did not know the answers and make a point of finding a scientist who does, or at least has the expertise to do so.
Will the Minister kindly tell the House what means are used to test the competence of the expert advice that Ministers receive? May I suggest, as it seems unlikely that anyone in government will take an executive decision to review the quality of scientific advice offered to all Ministers, that there should be a committee set up to discuss the matter? Defra is very good at setting up committees and discussing matters. It does not get anywhere but it does discuss them.
At the risk of being boringly repetitive the facts are that there is no historical evidence of BSE in sheep. There is no current evidence of BSE in sheep. If sheep ever were infected from eating feed contaminated by BSE-infected meat and bone meal taken out of the food chain before any current commercial sheep were born, the possibility of ever finding BSE in sheep must surely be diminishing rather than increasing. What are we doing implementing this regulation?
Lord Livsey of Talgarth: My Lords, it is a privilege to take part in this debate. I was brought up on a farm with a decent sized sheep flock and I had a sheep flock of my own at one stage. Therefore, I know quite a bit about the subject.
The noble Baroness, Lady Byford, rightly drew the House's attention to the views of the National Sheep Association. Therefore, I shall not squander parliamentary time by repeating what has been said regarding the views of the NSA. However, I should like to mention a few issues which I consider should be drawn to the attention of the House. The deep knowledge of the noble Countess, Lady Mar, on the subject must be respected.
The first page of the statutory instrument makes very clear that it incorporates the protection of public health. As the noble Countess, Lady Mar, said, at the present time there is no proven scientific link between TSE and scrapie on the one hand and BSE on the other. The spectre of the debate, if you like, which is unproven scientifically, is a link to human health.
I refer also to the whole issue of animal health. It is important to define the two matters as the regulations will have an impact on animal health. Indeed, in that

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respect the science is proven as regards scrapie. Indeed, farmers are co-operating with the Government to eliminate scrapie in the United Kingdom. That is quite right as the disease must be eliminated. That is a highly desirable thing to do.
On the other hand, as the NSA has pointed out, there are huge practical difficulties with the regulations. The problem as I see it is that the objective of protecting human health should not obscure the other of improving animal health and eliminating scrapie. That is where the complication arises.
I am pleased to see that the Government have taken on board the principle of appeals which has been incorporated in the regulations. I tabled an amendment to the Prayer to annul the 2002 regulations moved by the noble Countess, Lady Mar, which made three specific points. The first was,
"to give an undertaking that the period of time in which a veterinary inspector issuing a notice of intended slaughter shall permit representations to the Secretary of State shall be no less than seven days".
That particular aspect of my amendment was not accepted but amended by the Government and included in a measure that incorporated the rest of my amendment, which was,
"to consider bringing in further regulations setting up an independent appeals adjudicator nominated by the British Veterinary Association".
Will that occur? There appear to be some doubts within the farming community that the matter will be unilaterally decided by state vets, and not decided by independently nominated vets. I would like some assurance on that matter.
My amendment asked, thirdly,
"to keep the regulations under review in the light of scientific and technological developments relating to TSE".
We have had plenty of those so far, such as the genotyping of rams in particular in the national flock, and the impact of that on pedigree flocks.
I want to refer to the problems of the hill areas. The regulations deal with England, and there are many hefted hill flocks dependent on the drafting out of ewes in the autumn, as well as the drafting out of store lambs. If there is one case identified in a flock, that could prevent the marketing of store stock and, indeed, cull ewes as well. That would have an enormously serious impact on the economics of hill farming in the north of England and the south-west, to name but two areas. I would like to know the Minister's thoughts on that.
One other problem is the genotyping of rams. We are all aiming for ARR/ARR genotypes, which are the top range and will ensure that scrapie is not spread. In some breeds and places, those rams are in short supply, and simple supply-and-demand economics dictate that the price of the rams is sometimes extremely high. What is the Government's view on assisting the industry to ensure that that does not excessively penalise small producers, who really cannot afford to purchase some of those rams at present?
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Of course, derogation is accepted in principle by many members of the farming community. Compensation is still questioned very much by the sheep industry, and the independent valuation of sheep raises a question on commercial flocks of whether the market value is the appropriate one. Professional expertise ought to be brought in to adjudicate. Those are a few of the points that I would like to draw to the attention of the House.
Baroness Farrington of Ribbleton: My Lords, I am sure that everyone who has taken part will want to join the noble Countess, Lady Mar, in hoping that my noble friend Lord Whitty is well, in good voice, and able to join us very soon indeed.
I thank the noble Baroness, Lady Byford, for raising the issue. We recognise that there are concerns about the TSE (England)(Amendment) Regulations, as expressed in today's debate. We need to remember that the regulations only provide powers for us to enforce the EU measures. All noble Lords with an interest in the area have recognised that. The EU law is directly applicable and already forms part of our law, and we are required by that EU law to provide proper enforcement of EU measures. If the regulations were to be annulled, we would be in an uncertain situation, in that the EU legislation would not be fully workable or enforceable.
As all noble Lords have recognised, scrapie is a very serious disease. The noble Lord, Lord Livsey, drew attention not only to the human health issues but to the importance of eradicating the disease on grounds of animal welfare and to prevent animal suffering. It is important that we have the powers to take action in flocks where the disease is confirmed. That way we can eradicate scrapie and prevent its spread to other farms and its introduction from infected farms.
I note the point that the noble Countess, Lady Mar, raised about disinfection following an outbreak and we will be issuing guidance to farmers on how to do that. I have no doubt that she will wish to offer views in advance of that. Taking action in this way, as the noble Countess recognised, is in line with advice from the European Commission's scientific experts. The Scientific Steering Committee, now the European Food Standards Agency, and the Spongiform Encephalopathy Advisory Committee (SEAC) have expressed support. The action is also supported by the Food Standards Agency—as both the noble Countess and the noble Lord, Lord Livsey, recognised.
All of us, including the Government, recognise that there is a theoretical risk that BSE is present in the national sheep flock and is masked by scrapie, so we need to take action on public health grounds. Noble Lords have raised questions regarding whether that is a wise course of action. I believe that it will have public

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support, particularly when we remember that there were examples of sheep being fed the very feedstuffs that led to problems regarding BSE in cattle.
The Countess of Mar: My Lords, perhaps I may interrupt the noble Baroness. Does she recall the beef on the bone regulations and how seriously the public took those?
Baroness Farrington of Ribbleton: My Lords, I recollect all the issues in relation to BSE. I also recollect that there were examples where the Government were challenged for going too far in protecting the public. I also recognise that major concerns remain that the Government of the day did not go far enough quickly enough. The Government have to take action on the best advice from the Food Standards Agency.
We share the concerns of noble Lords regarding the impact of some of the more onerous aspects of the EU measures, particularly on the reporting of scrapie. We have raised our concerns about the movement restrictions with the Commission. It has proposed some limited amendments which have now been agreed but the Commission has been reluctant to go further. Regarding the sales of semi-resistant breeding rams, referred to by the noble Lord, Lord Livsey, in a slightly different context, the Commission believes that these genotypes might have clinical scrapie and should not be sold from scrapie- affected flocks to other flocks, which would contribute to the shortage to which the noble Lord, Lord Livsey, referred. We believe that the risk of spreading disease from semi-resistant animals is very small and that it is more important to maintain the reporting of disease.
However, I can assure noble Lords, particularly the noble Baroness, Lady Byford, that officials will keep a close eye on the impact of the regulations. If we find that they lead to a decline in the reporting of scrapie we will take the matter up with the European Commission and seek further amendments to the EU legislation.
I also assure noble Lords that we plan to operate the measures in a sensible and proportionate way and we recognise that the measures will be difficult in a number of respects. Derogations from certain provisions are available as allowed under the EU regulations for rare breeds or other breeds with low levels of resistance. Flocks that will have particular difficulty in finding replacement animals may apply for a time-limited derogation to bring on unknown genotypes until 1 January 2006. If there are further points that the noble Lord, Lord Livsey, wishes to raise in that context, I shall write to him if there is further information. Farmers will be compensated for animals which have to be killed and destroyed and cannot go into the food chain.
The noble Lord, Lord Livsey, asked about compensation rates. The regulations set out the rates and provide for compensation based on an independent valuation if the farmer wishes to arrange this. It has to be recognised that taking action in
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scrapie-affected flocks alone will not eradicate scrapie. I accept the point which noble Lords have made in this respect.
Our policy involves a wider approach to deal with scrapie involving measures to increase the level of genetic resistance to it in the sheep flock by breeding resistance under the national scrapie plan. Noble Lords had generally welcomed that, although I recognise that the noble Countess, Lady Mar, raised concerns. A number of schemes have been introduced under the national scrapie plan, on which we are now consulting. It is supported by the organisations representative of the sheep industry and that plan is a good example of the benefits of partnership working.
I am pleased about the high level of uptake under the national scrapie plan, with more than 1 million sheep now genotyped. I am pleased that the plan is having a positive impact in increasing the resistant genotypes and reducing susceptible genotypes in member flocks. This is spreading resistance throughout the national flock.
In response to points raised by noble Lords, we will do all we can to ensure that we implement these measures as flexibly as possible, taking the action necessary to eradicate the disease in herds and flocks. We are working on the appeals procedure which will involve the appointment of an independent person, possibly an industry representative. We are currently looking at that.
I have dealt with the issue of cleansing. The time period is a factor in that. I understand the most risky time is when the ewes are lambing. It is then most likely to be passed to other members of the flock. We will work with the farming community to ensure that in the cleansing we do all we can to have regard to that aspect. I will write to noble Lords with details of research that is being planned in this area.
The noble Countess raised the issue of goats. We hope to meet goat industry representatives soon to consider whether there are any practical management arrangements on the farm which can be applied to lessen the risk of goats coming into contact with sheep. We are still faced with the differences between goats and sheep.
We are funding a four-year, £1.6 million research project to investigate the potential impact of breeding for resistance on economically important production traits. There are a number of anecdotal reports suggesting that there is a link. As the noble Baroness said, there has never been a detailed scientific study. The researchers are currently collecting data from a number of research flocks on depletion of the gene pool. Major breeds, as well as rare and traditional breeds, will be included. The cost is estimated at £8 million in the first year of the compulsory scheme and I have referred to the scientific advice.
I note that in this and a number of other areas the noble Countess is not satisfied that the government advice gives the answer it should give on all occasions. We are grateful for the NSA's constructive comments and we work closely with it to implement that national

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scrapie plan. We will continue to do so. The reference to key industry representatives was not meant to imply that the NSA was content.
Baroness Byford: My Lords, I thank the noble Baroness for giving way. I raised that issue, not the noble Countess, Lady Mar, although I am not trying to point-score. My question was: if the reference was not to the National Sheep Association, which is the key player in the industry, who did it refer to?
Baroness Farrington of Ribbleton: My Lords, obviously a variety of organisations are involved and we were referring to the whole area of work on the National Scrapie Plan, including that of the NSA. We accept that people in the industry have expressed very strong concerns.
I was asked about the approach of the Government. We supported the underlying principle of the EU regulations. Obviously, as I said, we expressed concern about some of the details of implementation of the policy and we have sought and obtained a degree of derogation.
The final question asked by the noble Baroness, Lady Byford, was how many flocks are estimated to be affected. The Government estimate that the prevalence of infection in Great Britain as a whole is about 0.3 per cent.
I hope that I have satisfied the noble Baroness, Lady Byford, as well as I am able. I shall read through all the detailed questions that I have been asked tonight and shall write with answers to all noble Lords who have taken part in the debate. I hope that the noble Baroness will not pursue her prayer against the regulations.
Baroness Byford: My Lords, I thank the Minister and join all Members in wishing the noble Lord, Lord Whitty, a speedy recovery because we miss him. We are pleased to see the noble Baroness in her place but we do miss the noble Lord.
I find these occasions slightly difficult because there are obviously questions that the Minister cannot answer. I know that there is a convention that one should not keep asking the same questions but we have to clarify some of these matters. So far as I am concerned, the most crucial point that the Minister has not answered is how many research programmes carried out since 1999 have been totally ignored and whether any of them has found even one connection between scrapie and BSE. My answer to that—the noble Countess, Lady Mar, is shaking her head; I am sure that she is right—is none. If the answer is "none", the Government should at least be honest.
Baroness Farrington of Ribbleton: My Lords, I apologise. I thought I had made it clear that it remains a theoretical risk. In answer to the noble Countess, Lady Mar, I made it plain that the Food Standards
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Agency believes that the theoretical risk is strong enough for the Government not only to take it seriously but to act on it.
Baroness Byford: My Lords, I thank the Minister for that. Indeed, they are right to take it seriously, but 1999 was some five years ago and I ask how long one can keep working on a theoretical risk. Earlier, I was trying to say that the longer a theoretical risk keeps going and no evidence is found, ultimately, surely one has to question whether there is a risk at all.
We have covered many points tonight. I do not wish to detain the House further but I think that there is unfinished business. I know that the Minister is always very courteous and perhaps she would be kind enough to look carefully at the comments made by noble Lords from all sides of the House. There are real areas of concern and also some practical issues. At this stage, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Christmas Day (Trading) Bill
10.3 p.m.
Lord Davies of Coity: My Lords, despite the lateness of the hour, which of course is beyond my control, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Davies of Coity.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Geddes) in the Chair.]
Clause 1 agreed to.
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 1:
After Clause 1, insert the following new clause—

PROHIBITION OF LOADING AND UNLOADING AT LARGE SHOPS BEFORE 9 A.M. ON CHRISTMAS DAY
(1) Where a shop which is prohibited by section 1 from opening on Christmas Day is located in a loading control area, the occupier of the shop must not load or unload, or permit any other person to load or unload, goods from a vehicle at the shop before 9 a.m. on Christmas Day in connection with the trade or business carried on in the shop, unless the loading or unloading is carried on—

(a) with the consent of the local authority for the area in which the shop is situated, granted in accordance with this section, and

(b) in accordance with any conditions subject to which that consent is granted.

(2) The provisions of paragraphs 3 to 8 of Schedule 3 to the 1994 Act shall apply in relation to consent under subsection (1) as they apply in relation to consent under that Schedule, but as if—

(a) the reference in paragraph 6(1) to Sunday were a reference to Christmas Day, and

(b) the reference in paragraph 7(a) to an offence under paragraph 9 of that Schedule were a reference to an offence under subsection (3).

(3) A person who contravenes subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4) In this section, "loading control area" means any area designated by a local authority as a loading control area in accordance with section 2 of the 1994 Act."
The noble Lord said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 2 to 6 inclusive.
Those who were present during the Second Reading of this Bill may recall that I signalled the Government's intention to table an amendment relating to loading and unloading before nine o'clock at the premises of large shops on Christmas Day. This undertaking was made by the Minister in charge of the Bill in another place and was the result of concurrence between the Bill's sponsor, the Government and the Opposition on the merit of the proposed amendment.
The amendment would simply prohibit loading and unloading before 9 a.m. on Christmas Day in areas designated loading control areas by the local authority. This is for the principal purpose of ensuring that Christmas morning does not become a noisy affair for residents in the locality. Those areas designated as such will be the same as on a Sunday (under Section 2 of the Sunday (Trading) Act 1994).
In the last reading of this Bill my noble friend Lord Davies of Coity expressed some reservation as to the need for such an amendment and it was clear that part of this unease about the proposal was a genuine fear that the Bill might not be successful. On this latter point I am thankful that we have been able to arrive at an agreement with all parties in this House to enable this amendment to be made, while ensuring that the Bill is not endangered through lack of parliamentary time. I think this is a further reflection of the popularity and desirability of the Bill and a shared wish to have it in place for this Christmas.
On the former point, I recall that my noble friend had made some limited inquiries about the extent of the use of the current provision under Section 2 of the Sunday (Trading) Act, the main finding being that a minority of local authorities used this power in practice. The Department of Trade and Industry has also made inquiries about how extensively this provision in the 1994 Act is used, and the research produced some interesting findings. Whereas these inquiries endorsed those of my noble friend Lord Davies of Coity, they also confirmed that all of the respondents believed that inclusion of such a measure in this Bill is a good and sensible idea. There are two points that should be made here which give weight to the argument for the adoption of the proposed amendment and these are as follows.
First, it has been established in both this House and in another place that this Bill is largely pre-emptive in the sense that it puts in place a prohibition which, given the nature of market forces, is necessary to avert what could otherwise he a foregone conclusion—the en masse opening of large shops. Similarly, while it
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may be true that most large shops do not currently load or unload on Christmas Day before nine o'clock (or on Sunday), this does not preclude the possibility of that practice changing.
Secondly, the differences between Sunday and Christmas Day are important to emphasise here for the reason that such a power to prohibit loading and unloading may be more appropriate in the context of Christmas Day than in the context of a Sunday. Whereas Sunday is followed by Monday—an ordinary consumer shopping day—Christmas Day is followed by Boxing Day on which only a minimal observation would reveal the ubiquity of signs advertising sales. It is clear to see that the preparation for the busy sales period starting on Boxing Day would be more extensive than that of preparing for a Monday.
It is for these reasons, and for the reason that this amendment is in the spirit of the Bill's intentions, that I urge the Committee to accept this and the other supporting amendments. I beg to move.
Lord Davies of Coity: My Lords, as my noble friend the Minister has confirmed, at Second Reading I said that I had no objection in principle to this amendment. My concern was that we would have run out of parliamentary time. I am now assured that, with the maximum co-operation, that will not happen.
Since Second Reading I have met with my noble friend Lord Evans, I have had discussions with my noble friend the Government Chief Whip, I have had a brief discussion with the noble Lord, Lord Cope, the Opposition Chief Whip and a very brief discussion with the noble Lord, Lord Roper, Chief Whip of the Liberal Democrats, and I believe that they have been extremely fruitful.
This morning I had a brief word with the right reverend Prelate the Bishop of Portsmouth, who certainly supports the Bill, as expressed in his speech at Second Reading. He has no objection to the amendment. Further, I have had a telephone conversation with the right honourable Eric Forth, the Member in the other place who tabled this amendment in the first place. I have been assured by him that although the timetable is very tight, this Bill will not suffer obstruction in the other place and will therefore become law in time for Christmas this year. On that basis, I urge your Lordships to support the amendment.
The Lord Bishop of Worcester: I rise as a member of the Ethical Investment Advisory Group within the Church of England, which has consistently pressed for this Bill, and which has engaged in vigorous dialogue with some shops that have shown a tendency towards opening on Christmas Day. I am very glad for the introduction of this amendment.
I simply add to what the Minister has already said, that Christmas morning has a very particular quality about it, which makes its guarding a matter of some importance to us all. So I join with noble Lords who have already spoken in hoping that the amendment will pass and that the Bill will speedily become law.
Lord Cope of Berkeley: I support the amendment. I just want to build a little on what the Minister said. To my knowledge this is the first time that we have been able to amend a Private Member's Bill from the Commons in this way. The other place has altered its arrangements, and in particular the last day on which it habitually takes Private Members' Bills, to allow this to happen. This is a rare example of the other place altering its procedures for the convenience of your Lordships. That matter is to be welcomed in principle as is the detail of the amendment.
Lord Roper: I rise not to speak on the substance of the amendment, although I believe, irrespective of what one thinks about the substance of the Bill, that these amendments improve it. Although I am told that turkeys do not vote for an early Christmas, I shall certainly not oppose this particular amendment.
Like the noble Lord, Lord Cope, I wanted to refer to the fact that we have, following the principle of comity between the Houses, been able to reach an agreement whereby it is possible for this House to consider amendments to Private Members' Bills at a late stage. This is a way in which we can ensure that this sort of legislation is improved, or at least made as good as it can be by discussion in this House as well, and that this in itself does not kill Bills and prevent them becoming law. That is a very important step forward in the legislative process. I am pleased that this is one of the first occasions when we have been able to take advantage of these new provisions.
On Question, amendment agreed to.
Clause 2 [Enforcement]:
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendments Nos. 2 to 4:
Page 1, line 24, leave out "section 1" and insert "sections 1 and (Prohibition of loading and unloading at large shops before 9 a.m. on Christmas Day)"
Page 2, line 10, leave out "section 1" and insert "sections 1 and (Prohibition of loading and unloading at large shops before 9 a.m. on Christmas Day)"
Page 2, line 13, leave out "offence under section 1" and insert "offences under sections 1 and (Prohibition of loading and unloading at large shops before 9 a.m. on Christmas Day)"
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Consequential amendments]:
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 5:
Leave out Clause 3 and insert the following new Clause—

CONSEQUENTIAL AMENDMENTS
(1) The 1994 Act is amended as follows.
(2) In Schedule 1 (restrictions on Sunday opening of large shops)—

(a) in sub-paragraph (4) of paragraph 2, omit "or Christmas Day", and

(b) after that sub-paragraph insert—

"(5) Nothing in this paragraph applies where the Sunday is Christmas Day (the opening of large shops on Christmas Day being prohibited by section 1 of the Christmas Day (Trading) Act 2004).".
(3) In Schedule 3 (loading and unloading at large shops on Sunday morning), after paragraph 9 insert—

Christmas Day
10 Paragraph 2 does not apply where the Sunday is Christmas Day (loading and unloading at large shops on Christmas Day being regulated by section (Prohibition of loading and unloading at large shops before 9 a.m. on Christmas Day) of the Christmas Day (Trading) Act 2004).""
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clauses 4 and 5 agreed to.
In the Title:
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 6:
At end insert "and to restrict the loading or unloading of goods at such shops on Christmas Day"
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at a quarter past ten o'clock.