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Mr. Brown: There is regulation. The hon. Gentleman makes an anti-trade union point, which is not uncommon among Conservative Members— [ Interruption. ]
Mr. Deputy Speaker: Order. We cannot have interventions from a sedentary position, and I have a feeling that this argument is becoming somewhat circular.
Mr. Brown: Those are my thoughts precisely, Mr. Deputy Speaker. However, I would like to say a little about where the unions stand on the issue. Most unions do not behave in the reprehensible way described so effectively in that report. In most unions there is a rule-book relationship between the union member and the union as an institution. Legal assistance is available when members want it, not specifically when members have just joined the union. According to the Trades Union Congress, some 64,000 new personal injury cases were taken up on behalf of their members last year by TUC affiliates. It is important for us to do nothing to impinge on that relationship, and the enormous strengths that would not be there if there was a different structure. I know from my experience before I came to the House that trade unions can proceed with cases in difficult areas that become test cases, or vanguard cases. No individual solicitor acting for an individual claimant would have the resources to take on such ground-breaking cases.
I have been involved in settlements relating to industrial deafness and vibration white finger. There have been advances that are largely due to individual unions taking up test cases and funding class actions. I was a young official at the GMB when John Edmonds was the national industrial officer for the electricity industry. He went on to become general secretary of the GMB. We made an agreement with the nuclear industry to try to secure compensation for victims of radiation in the industry, given the possibility of their developing leukaemia. That agreement, gained partly through the law and partly through negotiation, has not yet been superseded in the courts. It has stood the test of time for 30 years. That illustrates the value to working people in difficult, even terrible, circumstances of membership of a trade union that can handle the law astutely and well, and has the financial resources to bring an action much too big for any individual claimant to afford. On the back of successes in the courts, the union was able to use its industrial muscle to negotiate a good, enduring agreement with the employers for people who did not deserve to be victims of the industrial injuries that they had suffered.
That brings me to mesothelioma, which, as most Members will know, is a horrible condition. There is no known cure, although there are palliatives. Alimta, a new drug, helps in some cases, but provides only remission. It does not reverse the condition, although it provides some comfort. Dying of mesothelioma is a horrible way to die, made all the more horrible when people see the sufferings of their loved ones as they go. I believe that we as a Parliament should stand in the victims’ corner, but in any event we should be able to vote on how cases are handled in the courts. It is a question of whether it is possible to join all the potential employers to the action and have the damages
assigned proportionately, which used to be the arrangement, or whether it is necessary to identify the specific employer who caused the injury, which is what the new judgment means. It represents a substantial setback for a number of such cases.
The condition takes time to develop. We are talking about working conditions that prevailed in the past, notably in heavy industries such as mining, shipbuilding, heavy engineering, the railways and the merchant marine service. The condition might develop in any area where asbestos was used, perhaps sprayed, as a fire retardant, or a construction material. Those cases are emerging now, and there is nothing that we can do to stop the process. The hon. Member for North-East Hertfordshire was right to say that the number of cases would peak quite some way into the future.
Working practices in industry in those days meant that people would go to one job and carry out a task, and might then perform a similar task on a different project, perhaps for a different employer. It is difficult to identify the employer for whom a person was working at the precise point when he inhaled a specific fibre—not one that was too big to inhale, and not one that was so small that it was exhaled, but one that was just the right size to lodge in the lung and cause pleural plaque and eventually mesothelioma.
Mr. Heald: Will the right hon. Gentleman give way?
Mr. Brown: I am sorry, but I cannot. I am running out of time.
My plea to the House, and to the Government in particular, is for us to be allowed a vote at some stage on whether to return the position to where it was before, or to confirm the new judgment of the House of Lords. I for one would vote for the former, but there is a whole separate set of issues relating to pleural plaque and whether it constitutes an injury. I think that my hon. Friend the Member for Sherwood (Paddy Tipping) was absolutely right to raise the issue, and I agree with him, but the matter is still before the House of Lords and it is probably right for a decision to be made there before we reach our own decision.
2.16 pm
Simon Hughes (North Southwark and Bermondsey) (LD): It is a pleasure to follow the right hon. Member for Newcastle upon Tyne, East and Wallsend (Mr. Brown). Let me deal first with his central point, because it concerns what could be described as a ring-fence issue. If it is possible for mesothelioma to be dealt with in the Bill, my colleagues and I would welcome that and would assist the Government. My honest assessment is that it will not be easily done, but I am sure there is consensus in the House that it is right and proper for us to move as quickly as possible, given the horror, pain, grief, suffering and uncertainty involved, to ensure that the legal position is adjusted and, if possible, redress is provided at the earliest stage. However, we may have to adopt the process suggested by the right hon. Gentleman rather than trying to amend the Bill.
Tony Lloyd:
I am grateful to the hon. Gentleman for his clear statement of the Liberal Democrats’ position. Disappointingly, the hon. Member for North-East
Hertfordshire (Mr. Heald) delivered a “maybe” rather than an assurance that the official Opposition would support a change in the legislation.
Simon Hughes: The official Opposition must answer for themselves, but the hon. Gentleman has our assurance that our colleagues—notably my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), who has constituency experience and practical knowledge—are committed to speedy progress. If that cannot be achieved here, as I suspect it cannot for drafting and other procedural reasons, I hope that it can be achieved soon. I hope that the position will be clear by the time of the Queen’s Speech in the autumn at the latest, but we may be able to move before then. In any event, we offer our co-operation.
Mr. Dismore: There is another reason for the matter to be dealt with urgently. The Barker case did not end the story. The Barker decision remitted the case to the High Court for a decision on how risk should be assessed between the different parties, presenting an opportunity for a further chain of appeals leading to the House of Lords yet again. It could be many years before we see a resolution of the issue in the courts.
Simon Hughes: I understand that, which is why I think that we should cut the knot. The matter is before the courts, but there is no reason why we cannot intervene. The situation is paradoxical. We are having a substantial debate about whether a Bill states what the law is or what we think it ought to be in the cases of people who have suffered. Whatever the law is, I believe that Parliament is at liberty, indeed has a duty, to decide what should happen, because there are people outside—constituents and their families—who are waiting for us to do that.
Having heard the earlier exchanges, I suppose that I should make a declaration, although it is not a formal declaration. On the edge of my constituency is the headquarters of the Health and Safety Executive. I have an interest in looking after the interests of the HSE, but it did not lobby me before the debate. Having said that, I shall probably need to talk to it about the Bill fairly soon.
I want to make a couple of general points about the context of the Bill. I am grateful for having been given the opportunity to talk through with the Minister the Government’s approach when she took up her responsibilities and I took up mine. Although the Bill is small, it deals with what a lot of people consider to be big issues—issues that arise all the time. This is real politics that matters in the real world. I did not previously know the figures, but there appears to be no dispute that we are talking about a business that is worth £10 billion a year: in other words, 1 per cent. of our gross domestic product is circulating in the compensation industry.
There are two serious flaws in the current system. First, the various accidents and injuries that occur—collisions, incidents in the park, incidents on trips with scouts or guides—total some £2 billion a year in claimants’ legal costs. Much worse—this figure astounded me, but I have not seen it contradicted—more than 90p in the pound of the money that one gets back in damages is
spent on costs. [Interruption.] My hon. Friend the Member for Cambridge (David Howarth) says that that is not right, but even if that figure is too high, this is still a significant issue. Pursuing what is a legal entitlement in civil law to appropriate compensation is often a hugely expensive exercise. So there are many issues to resolve and much work to do on the question of gaining access to justice in the civil world in a fair society.
Paddy Tipping: Does the hon. Gentleman accept that this is an issue in coalfield communities and for textile workers? For example, women textile workers with conditional fees arrangements backed by a loan often end up owing more than the award that is made. So in that respect, he is quite right.
Simon Hughes: I represent people who worked in the docks and who lived in the old dock-worker community—although perhaps not to the same degree as other Members—for whom the same issues arose. There were significant knock-on effects.
I want to make two other general points. This debate is not unrelated to the great debates that we have had in this place on incapacity benefit, time off work and so on. Sometimes, even though people are physically able to go back to work, they are advised not to do so because the compensation has not been sorted out and the legal case has not ended. We want a healthy and working society, but we also need to get the balance right between people’s liberties and their duties to each other. There are some significant issues to deal with in that regard.
I was not doing this job when the Bill was launched last autumn, so I checked to see what my predecessor, my hon. Friend the Member for Somerton and Frome (Mr. Heath) said then. The title of the first page of his very brief notes was, “Compensation Bill modest but welcome—Heath.” [Interruption.] That was a description of the Bill, not of him, although he is probably both those things. He went on to say:
“We all agree that there is an urgent need to deal with and regulate no win, no fee ‘claim farmers’, but we need to look very carefully at the issue of duty of care...the idea that this Bill presents a massive set of plans to tackle the compensation culture is a huge oversell.”
To be fair to the Government, I am not sure that they said that the Bill was going to do all that. It clearly is in some ways modest, but it is none the less important.
Given that the Bill started its life in the other place, I checked to see what my noble Friend Lord Goodhart said when he kicked off our comments. The Bill—not least clause 1, to which I shall return—was considered in the other place for quite a long time. On Second Reading, Lord Goodhart said:
“This is undoubtedly a well meaning Bill, but being well meaning is not enough. Part 1, which is clause 1, is at best unnecessary and may well lead to confusion and still more litigation. Part 2 unquestionably has a useful and desirable objective”.—[ Official Report, House of Lords, 28 November 2005; Vol. 676, c. 87.]
Following Second Reading, clause 1 alone was debated for some nine hours in Grand Committee, and for two hours on Report.
I join the hon. Member for North-East Hertfordshire (Mr. Heald) in paying tribute to colleagues from all parties—and in particular to the Minister in the Lords with responsibility for the Bill—and to the Conservative and Liberal Democrat Front Benchers, who worked very well together. Lots of amendments, and progress, were made. I also pay tribute to Lord Hunt of the Wirral, who did a lot of good work for the Conservative party. I looked to see what the general collective wisdom was at the end of the debate. Lord Goodhart said:
“Part 2 has now been both changed and improved to an unusual degree”
that is true; much progress was made—
“and it is now a very much better Bill than it was when it was brought forward...As for Part 1, I remain dubious as to whether Clause 1 will do more good than harm. It presents a real risk of causing serious problems. However, I am pleased that the Government have accepted Clause 2...Overall, I welcome the fact that this Bill will now go on to the other place.”—[ Official Report, House of Lords, 27 March 2006; Vol. 680, col. 577.]
I could not quite work out whether Lord Goodhart was saying, “Thank goodness we’re not going to be preoccupied with it any more”, or, “There is a lot more work to do, and you guys have got to get on with it.” But anyway, here the Bill is, and we will seek to do just that.
As the Minister said in her introduction, we must deal with the significant issue of new unregulated businesses dropping leaflets through our letterboxes seeking business, unsolicited. As the Government said, it is sensible initially to deal only with what are the most live issues, of which personal injury is obviously the biggest and most important. Housing disrepair is another issue that is raised regularly in our surgeries, and others include employment, criminal injury compensation and the mis-selling of financial services, which is an increasing problem not just in London but elsewhere.
Having been in the House for as long as I have, I take the fairly robust view—I hope that colleagues of similar long service agree—that we need as little legislation as possible, not as much as possible, and that it should be as simple as possible. I approached this Bill on that basis. I also believe that we should regulate as little as possible. We are in great danger of having too much regulation, which is why the Better Regulation Executive exists. Governments understand that we are trying to whittle down the amount of regulation. That said, of course consumers need a degree of protection, and the Bill is about getting that balance right. If we are to have regulation—we Liberal Democrats are persuaded that we should—it should be effective and proportionate and go only as far as is necessary in dealing with the problems that have arisen. At the end of the exercise, the judgment is whether we have got that balance right.
So if we are to have regulation, we clearly need a regulator. Again, I take a fairly simple view. I am absolutely opposed to the idea that every time we see a new problem, we should set up a new regulator and new committees, and new structures and organisations involving new people and new costs. Rather, we should look around to see who else exists who can do the job. I share the Minister’s view, however, that the two potential candidates in the financial services world were not the right ones. I also share her view that the other existing bodies that appeared suitable to do the job were not the right ones, and that it would be better
for the regulator to be a member of the family regulating legal and other services.
However, we have to have an interim stage. It might seem slightly bizarre to think of the Lord Chancellor as the regulator of claims farmers, but that job will keep him occupied in his post-Lords-speakership days and justify his saying to the Prime Minister, “I’ve got plenty to do.” It might even justify his salary being kept at the same level. Following that interim stage, we will need to move on. Once the draft Bill on legal services has been enacted, I hope that we will have a single, streamlined and minimalist regulatory system that costs as little as possible and occupies as few people as possible.
The much-heralded progress that everyone applauds is clause 2—I have heard very little criticism of it—which was not in the Bill at its outset. It is very simple, but it deals with a very important issue. We have all been there. I remember stopping suddenly in my vehicle one day—it was an election day—at a set of traffic lights and someone immediately behind me failing to stop. On another election day, exactly the reverse happened. I was looking over my shoulder and by the time that I turned round, the fellow in front had stopped and I had not. One then thinks, “Dare I say sorry?” Dare one apologise when in some cases, it is self-evident that the accident is the fault of the person behind, who has run into the stationary vehicle in front?
Mr. Heald: Did you ask, “Are you my constituent?”
Simon Hughes: As the hon. Gentleman, who also once fought the North Southwark and Bermondsey seat, says, that was exactly the question. The accident happened at The Blue shopping centre, and the person in question was a constituent of mine, so the response was slightly different.
“An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.”
It is very important for a courteous society that we do not say that someone will be liable for all the consequences financially just because they naturally said sorry. That is simple and welcome, and much easier than the great debate on clause 1.
We probably should not have started from here; we should have had a draft Bill, or we should have sent it to a Special Standing Committee where evidence could have been taken. Behind me sits my hon. Friend the Member for Cambridge, whose specialist subject in life is, as he will explain, this bit of the law; we have the best academic advice available. A kind of seminar is going on as to what the law should be.
I agree with the Government’s proposition as set out in the excellent Library research paper that
“we strongly should oppose any culture where people believe that if there is an injury there must inevitably be someone else to blame, and someone else to pay. And we oppose people being encouraged to believe that it is always worth ‘having a go’, however meritless the claim.”
I hope that there is consensus on that.
I hope that there is consensus also on something the Prime Minister said just after the last election; not about his future, but about the future of the Bill. He said:
“The Bill will also clarify the existing common law on negligence to make clear that there is no liability in negligence for untoward incidents that could not be avoided by taking reasonable care or exercising reasonable skill. Simple guidelines should be issued. Compliance should avoid legal action. This will send a strong signal and it will also reduce risk-averse behaviour by providing reassurance to those who may be concerned about possible litigation, such as volunteers, teachers and local authorities.”
All of us who did law know that the most famous such case is probably Donoghue v Stevenson, whose pre-eminent judge in the House of Lords was one of my Welsh secondary school’s great academic old boys, Lord Atkin. The principle that he set out still applies today;
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