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Mr. Kevan Jones: When the Minister described the minute, he used the phrase, "a willingness to accept liability". The minute does not say that. It accepts liability and goes further, by indicating that the scheme
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would now cover surface-only workers. It is not a matter of "willingness" because the Government accepted liability.

Malcolm Wicks: I think that it will help if I make some progress. As I have said, I will reflect on what I have heard tonight.

There is a real difficulty about men who worked only on the surface. Some hon. Members with personal experience have told us about working on the surface and I have listened to their comments, which I do not dispute. However, the issue facing us is whether that dust caused disability, which has been the key area of debate between the Department and the claimants' solicitors.

The Department's medical advice is that although a large amount of dust was present on the surface, the amount of respirable dust, which is dust that can enter the lungs and cause chronic obstructive pulmonary disease, was not present in sufficient quantities to cause the disease in the great majority of surface-only workers. For that reason, the Department has said that it is not willing to make compensation payments to surface workers, although it is willing to consider individual cases if they are brought forward on a common law basis.

The Department has always accepted that there may be some super-susceptible individuals for whom a comparatively small exposure to respirable dust may be sufficient to trigger COPD. However, my hon. Friend the Member for Barnsley, West and Penistone knows that the chest diseases caused by respirable coal dust are also caused by smoking, and that smoking is in fact by far the commonest cause of those diseases in the UK, which is a serious complication.

The Department wrote to the claimants' solicitors in February 2003 informing them that, having considered the evidence and arguments very carefully, it could not justify the admission of surface-only workers to the scheme. In July 2003, the solicitors announced in court that they intended to apply for a group litigation order to sue the Department over this issue. In order to be as co-operative as possible, the Department allowed solicitors access to British Coal archives at Cannock to help them to identify documents to assist their case. I am sure that hon. Members will appreciate that it is unusual to allow a disclosure exercise of that sort when facing legal action. That indicates how seriously this Government take their obligations to former miners and their families and our determination to get to the bottom of this difficult issue.

Mr. Clapham: Access to the archive was obviously helpful, but it was provided because it was known that British Coal did not operate a routine, so a schedule of readings was not taken over a long duration, which is one of the problems. Because those readings are not available, the claimants' group of solicitors does not have sufficient evidence to go to court.

Malcolm Wicks: In November 2004, the solicitors informed the court that they had obtained partial funding from the National Union of Mineworkers and would proceed with group litigation against the Department. However, in December the solicitors announced that they were withdrawing the litigation.
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My hon. Friend will recall that at the Trade and Industry Committee hearing into the coal health schemes earlier this year, the claimants' solicitors agreed that a strong legal case in relation to surface dust and surface-only workers could not be constructed, and argued instead for compensation on a moral basis.

Mr. Llwyd: With respect to the Minister, the conclusion at that stage was that a great deal of preparatory work needed to be done by the lawyers. I am afraid that it is not accurate to say that they concluded that they could not put a case together. Will the Minister tell the House at what point the Department said, "Individuals come to us on a common law basis, but if you fail we want every penny of our costs"?

Malcolm Wicks: Obviously, we have to get this right. I will check the record of the Select Committee and write to the hon. Gentleman. I will also write to him about the timing.

The only ground on which compensation can be paid out is that of established liability. Without that, there is no moral case to answer. The Department has gone the extra mile in allowing solicitors to establish a strong case for schemed compensation for surface workers, and they have not succeeded. That is why the Department has now denied surface-only claims, which would otherwise be held up in the COPD scheme indefinitely. In doing so, the Department acknowledges that individual cases may be litigated. Anyone who feels that they have a strong case should seek the advice of their solicitor to explore that possibility. The door is not closed on the possibility of claims.

I should remind hon. Members that as long ago as the latter part of 2000, the Department offered a pragmatic compromise to solicitors to put surface workers who had pneumoconiosis, and therefore evidence of exposure to dust, through the medical assessment process, and to compensate them on a schemed basis. However, I am advised that that offer was deemed insufficient by the claimants' solicitors and was rejected. Subsequent developments mean that that offer is no longer appropriate in the light of further evidence, but it demonstrates that the Department has been willing to explore negotiated solutions all along the line.
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I can assure hon. Members that the decision to exclude surface-only workers from the COPD scheme was not taken lightly— it was taken only after careful analysis and consideration.

Mr. David Hamilton: I am not a lawyer, so I do not understand the argument. Is the Minister saying that if someone who worked on the surface for all that time has pneumoconiosis and proves it, they cannot come to the Department because the offer has been withdrawn from the table?

Malcolm Wicks: There was an offer and it was not taken up by solicitors. Things have moved on in terms of the medical evidence. On a common law basis, people can present claims.

Mr. Kevan Jones: Who made the decision, when and why? Why was the minute withdrawn from Parliament? Is the speech that the Minister is reading written by the same woman who signed the minute?

Malcolm Wicks: I regret the tone of my hon. Friend's remarks. If there is an argument with the Government about anything, the proper way to conduct it is with a Minister, rather than pointing to officials who cannot answer back. Although I regret my hon. Friend's tone, I shall be helpful to him by writing to him about the precise timing.

The debate has continued for five years and the Department has considered carefully all the evidence and arguments that the claimants' solicitors have presented. I repeat that the Department will consider individual surface-only cases that are presented on a common law basis and continue to compensate mixed underground and surface workers on a scheme.

I thank my hon. Friend the Member for Barnsley, West and Penistone and other colleagues who have contributed to an important debate on an important subject. This evening, I have explained the position as the Department perceives it. However, some important points have been made and I shall reflect on them. I do not offer false hope, but I shall reflect on what I have heard and I know that the debate will continue.

Question put and agreed to.

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