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Mr. Michael Clapham (Barnsley, West and Penistone): I detect that the Minister is being helpful, but he will realise that, when a case has already been prepared for court, the employers will apply pressure--even though the lawyers working on behalf of the victim may want a postponement. Because they stand to benefit, however, the employers will press for a case to be heard.
Mr. Evans: The hon. Gentleman is absolutely right. Ironically, one of the beneficial consequences of the Bill will be the strong financial incentive, for the first time, for the defendant's insurers to speed up the process. That will happen after October, because recoupment and liability stop at settlement or determination. So for the first time, once the Bill comes into effect, there will be a direct financial incentive for the defendant's insurers to press for haste.
As is well known, some such insurers have before now dragged out litigation on the basis that, five years down the line, the plaintiff may have died, or become exasperated, or gone away, or decided to accept a pittance, or not turned up on the day. It may have become easier to buy the plaintiff off by then, and in any case the money allocated will come from the sixth financial year, not the first or second--even though the latter might have been more just and commonsensical. That is all part of the workings of the insurer's mind.
In short, this legislation will act as a powerful financial incentive for insurers to get a move on, because recoupment will be more substantial. That is a good thing, but it may be awkward and unhelpful for the class of person to whom the hon. Member for Barnsley, West and Penistone (Mr. Clapham) referred, who may be wondering what will happen between April and October. Such a person, who may have begun the court process, may want to stop it reaching court before October because that will be to his advantage.
There may be quite powerful tools in the hands of the defendant's insurers, enabling them to make life awkward for the plaintiff. They can make generous payments--one can only hope, generous enough to compensate for the circumstances. At least in England and Wales--I cannot speak for Scotland--Lord Woolf's inquiries into speeding up the civil justice system have all been directed to the sort of judicial activism that speeds up these processes. In this context, that has led to a problem.
One of the difficulties inherent in a substantial change to the law, as this is, is that some people will be adversely affected if they are on one side of the line rather than the other. I can see the force of the argument for activating the measure earlier, but I cannot carry out the undertakings that the Government have given and, at the same time, implement the proposals earlier.
To make matters more complicated, I can well understand the purpose of the amendments from a purely humanitarian point of view. We all have constituents in this position; they tell us that the Bill is necessary and represents an improvement. It rights a harsh injustice for the limited class of people whom the Select Committee rightly identified as needing assistance from legislation. I regret to say, however, that complications arise when some people are caught out by the timing.
An additional problem is the fact that the amendments do not even accomplish what they are meant to. I regret to say that they would bring about general chaos, with
unknowable consequences. Amendment No. 1 means that clause 2 alone would come into effect on Royal Assent. Clause 2 reads:
The results would be complications beyond measure. One is that the clause in the Bill which repeals part IV of the Social Security Contributions and Benefits Act 1992 would not be implemented. We would thus have one law prescribing one regime, and a later section of the new Act suggesting that there was a new regime in force. Unless the Secretary of State then advanced the process of implementing the remaining sections, there would be no machinery to apply the new regime--no framework for regulations to come into force. My right hon. Friend the Secretary of State would not have the power to make such regulations unless the rest of the Act was in force, too.
I cannot predict what the courts might make of that. I can only respectfully suggest that it would generate such uncertainty that I cannot believe that the hon. Member for Greenock and Port Glasgow would want to place us in that position. Litigation and/or chaos would be left to resolve the situation; it certainly would be an unfortunate one.
I fully appreciate the hon. Gentleman's desire for us to hurry up and activate the legislation at the earliest possible moment, but I cannot see how to do that practically. I am stuck with the undertakings given by the Minister in the other place. What is more, the 1948 scheme was riddled with anomalies and difficulties until it was swept away, on 1 January 1989, by the present arrangements. I suggest, in the interests of the expeditious disposal of personal injuries litigation, that we get the rules and regulations right and make them fair and comprehensible for all involved.
Accepting the force behind what the hon. Gentleman is attempting to achieve, I invite him not to press the amendment, for the reasons that I have outlined.
Dr. Godman:
In mitigation I might point out that I am neither a lawyer nor a parliamentary draftsman. I sincerely hope, however, that the Crown Office in Scotland will be made aware of the Minister's remarks today so that, if need be, advice can be given to sheriffs and judges in the Court of Session--
Mr. Roger Evans:
I do not know whether it is right for a Minister to attempt to give guidance to an independent Scottish judge, but I undertake carefully to examine what can be done.
Dr. Godman:
I am grateful to the Minister. He might mention my concerns in passing to his colleagues at the Scottish Office. I am sure that they will give him the appropriate advice.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Dr. Godman:
I beg to move amendment No. 3, in page 17, line 15, at end insert--
Mesothelioma is a pernicious form of cancer. I am not a medical man; my doctorate results from a thesis on the development of steam trawlers in the port of Aberdeen and elsewhere. This, however, is a serious matter and the prognosis for victims is almost always grim. I believe that there is no cure for the ailment.
In relation to the pursuit of a legal claim on behalf of a mesothelioma victim, is it the case, or was it the case hitherto, that if such a victim died before he was examined by a medical specialist employed by the Benefits Agency, any legal claim would fall, despite the fact that the death certificate stated that the death was due to mesothelioma? I sincerely hope that that is not the case now, but I seem to recall that it was hitherto. What is the situation if an examination has not been carried out? In Scotland, any death resulting from the ailment legally requires a post mortem, so a death certificate could state that mesothelioma was the cause of death.
Mr. Roger Evans:
May I seek clarification in the interests of attempting to answer that question? Is the hon. Gentleman referring to a claim for some form of benefit from the Benefits Agency, or a legal claim for damages?
Dr. Godman:
I do not wish to be awkward, but both cases interest me. Naturally, the question concerning benefits looms larger than the second question. I hope that a death certificate is a legally valid document in terms of determining a person's death and that a legal claim would not fall because the person had died.
My hon. Friends with Clydeside constituencies and I share an abiding concern for the poor, unfortunate people who fall victim to mesothelioma. Victims and their families must be protected, not just by local Members of Parliament, but by the Government. My hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington) has a long and honourable record in that regard. As the Minister well knows, my hon. Friend and I have been closely associated with Clydeside Action on Asbestos, a remarkable group of people who came together because of illnesses to which they and their families had fallen victim. They are remarkable campaigners, on behalf not just of their friends and families but of people throughout Scotland and elsewhere.
On Second Reading, my hon. Friend the Member for Clydebank and Milngavie said that the asbestosis issue interested him because,
My hon. Friend the Member for Clydebank and Milngavie went on to say:
My hon. Friend the Member for Clydebank and Milngavie said that that figure
We must remember that there is no immediate indication of asbestos. The company told those men:
Another note to the employees stated:
I refer again to the observations of the eminent consultant whom I questioned today--a man I have known for some years. He told me that he deals with 10 cases a year in the Inverclyde area. Not just shipyard workers, ferry crews or others in similar industries are involved; a recent patient of his was a bus conductress. Another victim was the wife of a shipyard worker. It was found that the regular hand-washing of her husband's protective clothing led to the woman contracting this dreadful form of cancer. Another patient was the secretary to the managing director of a shipyard. She, too, contracted this appalling illness.
The consultant told me that a plateau in the number of cases may be reached in 2005, and that there was a time lag of 30 to 40 years before onset. The average time of survival after diagnosis is nine months. Mesothelioma is one of the most resistant of all cancers. Less than 25 per cent. of patients get relief from pain by way of radiotherapy. Some of his patients suffer the most appalling pain from the disease, and radiotherapy is not effective in 75 per cent. of cases. He is one of our foremost consultants in the west of Scotland, but he said that, with the science and medical knowledge currently at our disposal, there is no cure. There is a case--south of the border, I think--of a woman who has managed to survive for two years. The consultant was astonished that she had survived for so long, as most patients die within six to 12 months.
For those reasons, I impress upon the Minister the merit of my amendment. He knows that I have been guided by members of Clydeside Action on Asbestos, Frank Maguire and the cases that have come to my--we are supposed to call them advice bureaux now, but being old Labour I still call them surgeries. I have a constituent who has that complaint, and it is heartbreaking to see. A friend of mine in my constituency, a shipyard worker, recently died of the disease.
There is a powerful case for giving victims the support that I seek through the amendment. The Minister, being skilled in both parliamentary draftsmanship and the law, will tell me that my amendment is, as we say up our way, going to Gourock--in other words, cock-eyed. On behalf of all the people in our Clydeside constituencies who have suffered grievously from mesothelioma, I want the Minister to give me a positive response. They deserve our continuing and abiding sympathy, and I sincerely hope that the Minister will respond in a way that they and their families deserve. Many victims live their last few months in agony; pain killers and radiotherapy are not much use, and chemotherapy is not used in such cases.
"This Act applies in relation to compensation payments made on or after the day on which this section comes into force".
The problem with the amendment is that nothing else would come into force until the Secretary of State issued the appropriate commencement orders--I refer at this point to amendment No. 2.
'3A. Any payment to the injured person arising out of their contracting mesothelioma.'.
5.30 pm
"regrettably, Clydebank in my constituency is the national leader for male deaths from mesothelioma. Our death rate is 11 times the national average because of the deathly cocktail in our background of shipyards, ship repairing and an asbestos factory."
Delete "asbestos factory", and my hon. Friend could have been speaking about my constituency. I am sure that similar problems are also characteristic of the constituency of my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) in Yorkshire.
"Between 1976 and 1991, in Greater Glasgow, there were 500 deaths from mesothelioma alone . . . According to the Government, the people who died came into contact with the dust between 50 and 60 years ago; as has been said, asbestos-related diseases are by far the biggest industrial killer, and the problem is getting worse."
In specific relation to my amendment, my hon. Friend said:
"there will be between 1,300 and 3,000 deaths from mesothelioma in 20 years' time".
An eminent consultant with whom I spoke in Inverclyde Royal hospital trust in Greenock this morning said that, in his opinion--he deals with about 10 cases a year and says that the number is increasing--we shall reach a plateau in 2005. We shall not see the end of the disease for a considerable time yet.
"dwarfs all industrial deaths, deaths on the roads and deaths from any similar cause. If we take into account the fact that there are estimated to be one or two deaths from asbestos-related lung cancer for every death caused by mesothelioma, we realise the scale of the continuing problem."---[Official Report, 25 February 1997; Vol. 291, c. 188.]
Mr. Frank Maguire made a similar remark in his letter to the Minister. He said:
"With respect, you misunderstand the distinction of mesothelioma from other cases. It is becoming increasingly the case that the younger claimants are suffering from mesothelioma. We are now encountering cases where a mesothelioma victim is in their 40s. There would therefore be and are a large and increasing number of cases where there are claims for wage loss and where the victim has been in full employment. The Act will do nothing other than hinder resolution of these cases."
The problem is found not only in shipyards. Two local men came to see me last Friday at my surgery. They are Caledonian MacBrayne employees and crew members of the Pioneer. They went on board the vessel recently and became alarmed when they saw a joiner working, equipped with a respirator and goggles. When they asked him why he was so equipped, they were told that there was strong evidence of asbestos in the deckhead materials lining the formica. There was a substance called ammonite, which gives rise to asbestos dust. That was confirmed by an official of Caledonian MacBrayne, who stated that health and safety inspectors had been called in to test for asbestos.
"As a result of compressed asbestos panelling being found on MV 'Pioneer', the company is aware of individual concerns with regard to health and the effect that asbestos may or may not have.
We are, therefore, not speaking only about employees who were caught up in such circumstances years ago. That incident took place just a few days ago when the ship was being repaired in a yard just a few miles away from me.
In order to alleviate such concerns, the company offer, at no cost to the individual, the opportunity to receive an x-ray at Greenock health centre. Should an employee wish to take up this facility he or she should present themselves at the health centre and at Dr. Hulme's reception where the necessary arrangements have been made."
"As a result of compressed asbestos panelling being found on board M. V. "Pioneer", the company by way of compensation to cover damage to clothing incurred by crew members, offer the sum of £100.00. The award is given in full and final settlement of any claim made in this respect."
18 Mar 1997 : Column 757
I should be grateful to the Minister if he would bring the case to the attention of his Scottish Office colleagues. If the Health and Safety Executive is involved, there may be a case for the incident being reported to the procurator fiscal in Greenock or Troon. The Minister should respond positively to the amendment, as he did earlier.
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