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Mr. Roger Evans: I entirely endorse the graphic description given by the hon. Member for Greenock and Port Glasgow (Dr. Godman) of this class of case and the victims' sufferings. There is no doubt that mesothelioma is a particularly pernicious cancer, as he said. Its effects are as appalling as he described.
Dr. Godman: It is just a minor point, but the Minister will be much more popular in my constituency if he pronounces Greenock correctly.
Mr. Evans: I represent a Welsh seat and we have the same sort of problem. I apologise to Greenock for the discourtesy, which was not intended. It was fair to pull me up for that, and I apologise.
The amendment is important and has been forcefully presented by the hon. Gentleman. I am well aware of the helpful and constructive role of Clydeside Action on Asbestos, the discussions that led to the legislation and the way in which it has developed. When we discussed the previous amendment, I meant to mention Mr. Frank Maguire, whom it is fair to say I have not seen recently, but to whom I had the advantage of speaking during discussions, which were helpful and constructive.
A debate on the Bill was encouraged, which was partly the responsibility of the Social Security Committee. Many practitioners representing different aspects have given their advice to the Government and participated in the discussions.
I was asked whether it was or is the case that, if a mesothelioma sufferer died before examination by a Benefits Agency doctor, the claim failed. I asked the hon. Gentleman to clarify which sort of claim he was referring to--benefits or damages at common law--to which he helpfully replied, "Both."
With regard to industrial injuries disablement benefit, I do not have the relevant expert advice to hand to give a confident answer. I will write to the hon. Gentleman on that matter. With regard to a claim for damages at law, at least in England, the Law Reform (Miscellaneous Provisions) Act 1934 would provide for the survival of the action in certain circumstances to some degree. If there is a widow and dependants, they have a fatal accidents claim. It then becomes simply a question of proof, and no doubt there are other means of proving what happened to establish the cause of action.
The hon. Gentleman invited me to draw the attention of my Scottish Office colleagues to the case that he described. It may assist us all if he would write to them or me. I appreciate the force of his observations.
This is a hard amendment to answer, as the situation is heart-rending. Mesothelioma is an horrific condition. I am advised--I asked for background information of the sort that the hon. Gentleman obtained from his constituent, the distinguished consultant and medical man to whom he referred--that the median time from contracting mesothelioma to death is nine to 15 months, depending on medical opinions. It is possible, I am advised, to contract mesothelioma without exposure to asbestos, but that is very rare. There has apparently been a small number of cases involving children who, as far as anyone is aware, have not been exposed to asbestos.
The number of deaths from mesothelioma is about one quarter, I am advised, of all the deaths caused by asbestosis. Indeed, as the hon. Gentleman again pointed
out with considerable force, one of the more horrific problems of the condition is the fact that there is a long period between exposure to asbestos and the striking down by mesothelioma.
I am advised that research by Whitewell and Rawcliffe in 1971 among 52 patients, mainly in Liverpool shipyards, revealed that the mean period between first exposure to asbestos and diagnosis of mesothelioma is 42 years--and that is the mean. That is what is so horrific, why it strikes people in old age and why that group of people was so affected by the existing legislation, which this Bill replaces. I am advised that the range can be anything between 13 and 63 years.
On the face of it, with that sort of situation, why do I not agree to the amendment? The difficulty is this: one of the horrific features of asbestosis is that one does not know how and when death will follow. Deaths from mesothelioma are about a quarter of all deaths from asbestosis. One of my constituents, whom I was speaking to this weekend, who has contracted asbestosis and who is pursuing his remedies through the courts, told me that one of the more horrific aspects of asbestosis was simply not knowing whether mesothelioma would strike.
One of the problems is that people can die of lung cancer, which is, I am advised, medically a separate and distinct form of cancer, as well as a result of asbestosis. Of course, even if they do not die of either of those two conditions, asbestosis sufferers face other horrific, unpleasant and on-going consequences. I recognise the force of the argument, but I respectfully suggest that it is difficult, if death is the consequence of asbestosis, to single out one particular group, albeit one for which one might reasonably and properly have the greatest sympathy.
Mr. Clapham:
On mesothelioma, I think that the Minister will find that the Benefits Agency will take on a posthumous case. If that proves not to be true, will the Minister consider referring the matter to the Industrial Injuries Advisory Council so that we might get a decision on how the issue should be tackled? It is an important issue.
Mr. Evans:
I am not entirely clear of the point that has been raised. The point that I was asked about involved someone dying of mesothelioma without medical examination by the Benefits Agency doctor. That is a specific point. I think that the hon. Gentleman is now suggesting a slightly broader point. I am aware of the considerable concerns on mesothelioma. It is the function of the Industrial Injuries Advisory Council to keep Ministers advised on these matters. If the hon. Gentleman will write to me with his specific concerns, I will happily consider them and ask the council specifically to advise.
I point that I was developing was that it was difficult to distinguish one class of asbestosis sufferer from another, but it should also be borne in mind that there are other equally horrific and fatal forms of cancer which can result from exposure during working time and which cause death. A classic example is exposure in the dye industry, which causes bladder cancer much later. I am suggesting, therefore, that this is an area in which one is bound to have sympathy for any of the groups of sufferers. It is difficult to make the distinction that the hon. Member for Greenock and Port Glasgow has made.
The hon. Gentleman said--I do not criticise it--that I might find technical difficulty with his amendment. There is one slight technical problem; he has managed to exempt defendants and their insurers in mesothelioma cases from having to pay anything to the compensation recovery unit. I should have thought that he would have wanted to do exactly the reverse: to protect particular sufferers.
For that combination of reasons, although I accept fully the force of the hon. Gentleman's argument, I respectfully urge him not the press the amendment, as I think he said he would not, to a Division.
Dr. Godman:
I am grateful to the Minister for his sympathetic response. I am sorry that there is a fault in the amendment--I would certainly not want to push it to a Division with such a fault. I am grateful to the Minister also for acknowledging the devastating nature of this ailment, and hope that the Bill, without my amendment, will give some consolation to the victims and the families concerned. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Order for Third Reading read--[Queen's consent, on behalf of the Crown, signified.]
Mr. Roger Evans:
I beg to move, That the Bill be now read the Third time.
The Bill deals with a discrete and separate part of the social security system. It is probably not a sector familiar to most of our constituents, but it is an area of great concern for those involved in the personal injuries litigation process. A number of hon. Members know a great deal about the subject, on which trade unions classically give much helpful advice to their members. There is a great body of expert advisers in the sector: solicitors, lawyers of one sort or another and people who are concerned with the subject and deal on a day-to-day basis with the system.
The Bill's importance involves the fact that the current arrangements, which were enacted in 1989, succeeded well in doing certain things. It delivered valuable savings to the taxpayer without placing an untoward administrative burden on either compensators or victim representatives. It is worth noting that the Select Committee on Social Security made particular reference to those aspects of the existing scheme. More than £500 million has been recovered since the inception of the existing scheme.
The Select Committee also concluded that the recovery of benefits to prevent double compensation was justified, but it also drew attention to an unintended consequence of the existing scheme: in some cases, it can lead to the erosion of victims' damages for pain and suffering. It is to put that right that the Bill has been advanced and that its Third reading has been moved.
Before introducing the Bill, the Government consulted extensively with interested parties. Two separate exercises were mounted, the first on the implications of the Select Committee's recommendations, the second on the compliance cost assessment. I wish to restate our thanks to all the people who were consulted for the positive responses that we have received. I particularly thank Clydeside Action on Asbestos, which I mentioned earlier.
We have had a constructive dialogue with that group, as well as with other people. That has enabled us to advance our thinking on some important issues.
The consultation process culminated in the introduction of the Bill in another place on 7 November last year, before it was transferred to the House on 21 January. I thank all those who have most carefully followed the Bill in the House and shown considerable and keen interest in the measures proposed. I particularly thank the hon. Members who considered the Bill in Standing Committee.
I have referred to the importance of the Bill. I suspect that that is why it has taken the course that it has.
This important topic has not had a happy past. We are talking about phase three. Phase one existed between 1948 and the coming into force of the present scheme on 1 January 1989. Under the first scheme, the defendant or his insurers were entitled to deduct against special damages half of certain specified benefits. That curious arrangement was condemned by the Public Accounts Committee in 1986. It had the perverse and extraordinary consequence of providing a subsidy out of public funds for the tortfeasor or his insurers. That cannot have been right. The Public Accounts Committee and others consequently recommended that it be changed, as it was in 1989.
The second striking and unsatisfactory feature of the 1948 scheme was that it began with three named benefits that existed at that time. Thereafter, the benefit system altered, with benefit succeeding benefit. The consequences for the arrangement were not clear. As a result, litigation--going in many cases to the House of Lords--occurred on a series of different benefits paid by the Department. Certain issues of day-to-day importance for those engaged in litigation were unclear.
Some classic examples include supplementary benefit, which was introduced in 1966, but not sorted out until 1982. Benefit paid up to the date of a damage award was taken into account, but not thereafter. It was determined in 1980 that unemployment benefit should be deducted in full. It was also eventually decided that statutory sick pay should be deducted in full.
One of the advances in the Bill that I particularly commend to the House is schedule 2, which, for the first time, lists not only the heads of compensation, but the benefits that can be recouped against them or set off. Under the new scheme, the set-off arrangement is specified in detail and a power is provided by regulation passed by affirmative instrument to alter that from time to time. The arrangements between 1948 and 1989 were not satisfactory. We have corrected them and introduced a better mechanism to enable adjustments to be made later, as the benefits system develops.
The main advantage of the Bill is that it protects plaintiffs--particularly asbestosis sufferers whose diagnosis was made in retirement--who suffered enormous recoupment against their pain and suffering damages. That has been put right. The 1989 scheme put more of the burden on the plaintiff. The Bill puts more of the burden on the defendant and, in particular, his insurers.
That is surely right, because the defendant and, by secondary implication, those who cover his risks, commit the tort of negligence--or whatever it happens to be--that
causes the injury. It is right that he should bear the greater part of the burden, subject only to a set-off against the plaintiff in circumstances in which the plaintiff might be said to be doubly recovering in a way that would not be fair and appropriate in comparison with an ordinary private contract of indemnity insurance.
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