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“In English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances...But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.”
The debate has focused on whether the law as set out in that case in 1932 and in the 2004 Tomlinson v Congleton borough council case is sufficient.
In the Tomlinson judgment, Lord Hoffmann and Lord Hobhouse made two simple things clear: first, that people must be allowed to take risks; and, secondly, that the landowner should not be worrying that he has to protect himself against people doing what they want to do on mountainsides and in fields. Lord Hobhouse made an important point about liberty, saying that it should never be
“the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. Does the law require that all the trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices?... The pursuit of an unrestrained culture of blame and compensation has many evil consequences one of which is certainly the interference with the liberty of the citizen.”
The test for the blessed clause 1 is whether it adds anything to the current law. I hope that we get a formulation that meets the concerns of the Select Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed and of those who say that adding “desirable activity” poses a problem and that making it a permissive rather than an obligatory requirement on the courts may add very little.
If a doctor does something wrong when operating on or treating a patient, the doctor is, by definition, carrying out a desirable activity. If a tattooist does something wrong, they may be regarded as not carrying out a desirable activity in the same sense. There is a danger that the liability for negligence of the doctor may then be lowered in a way that the public would not expect. I am not against seeking to codify the law, but, above all, I want to send a message that we must not discourage people from doing desirable things.
Mr. Brazier: The problem with the excellent Tomlinson judgment was that it related specifically to a very reckless individual. Most of the cases that provide the most problems for organisations such as the Scouts and sporting organisations do not relate to individual recklessness, but to exactly what clause 1 addresses: namely, the court suggesting that somebody should have carried out yet another safeguard to prevent something.
Simon Hughes: I understand that, which is why I am more sympathetic to clause 1 than my right hon. Friend the Member for Berwick-upon-Tweed and my hon. Friend the Member for Cambridge. We cannot pass a law that has no effect. Once we pass a new law, the courts must take account of it and of some of the explanatory notes and so on. We have to be clear: adding uncertainty will not be helpful.
Mr. Heald: I do not mean to trespass on the hon. Gentleman’s good will, but does he agree that we quite often declare in statute what the law is, with the idea not particularly of wanting to change it, but of wanting to clarify it? An example is the Constitutional Reform Bill. He and I were anxious that it should make it clear at the beginning that the role of the Lord Chancellor in protecting the legal system should remain his duty, so we said it in the Act for that purpose and to declare it.
Simon Hughes: And that is why I have not said that I am wholeheartedly opposed to seeking to get this right. But if we start to introduce phrases that do not have a legal definition, we might get into a new set of definitions, which might mean that the law becomes uncertain, not certain.
David Howarth: The central point here is, was the law unclear before? Was it unclear after Tomlinson? Was it even unclear before Tomlinson? [Interruption.] The hon. Member for Canterbury (Mr. Brazier) says yes, but the question is, in what way was it unclear? If there was a specific way in which it was unclear, that is the way in which it should be made clear in the Bill. So far as I can tell, there is no suggestion from the Government that that is what is going on with clause 1.
Simon Hughes: I think that my hon. Friend will not like the answer to that question. I take the view that if it is possible to encapsulate in one or two sentences in an Act of Parliament what the law is, rather than drive people back to reading five House of Lords judgments, we should do that. Therefore, it is better to write something down as the law of the land, if we can, than to have to go and read the words of the great legal minds of the country, because most people do not go there, it is more difficult and there is more than one judgment. So, if we can, let us do it.
The last point that I want to make is about the rest of the Bill, which is much less controversial. There is one controversial issue left in the regulatory system, which was touched on by the right hon. Member for Newcastle upon Tyne, East and Wallsend and others. It is how we ensure fair play for all who are involved in the business of dealing with claims and the rest.
As I understand it, clause 3 says that if somebody, as an individual, is involved, but not as part of their business, they are exempt, or potentially exempt. I want to ensure that, at the end of the legislative process, there is a level playing field so that members of trade unions—in the past, I acted for Thompson’s, which did a lot of trade union work as solicitors and instructed me and others—who expect that, once they have paid, they will get a service, are in the same position as those who join a political party, the Co-operative movement,
a voluntary organisation or whatever and are also told that they will get a service. Provided that there is a level playing field and everybody is treated the same, if the organisations are of the same sort, that is reasonable.
Of course, we need to ensure that individuals are not under some great regulatory system if they are doing something voluntarily and in a way that everybody understands does not give them a legal relationship, with the liability that follows.
The Bill does not deal with a lot of issues, which will be left on the agenda and have been set out by the Association of Personal Injury Lawyers and others, and which we shall have to revisit to achieve better access to justice in the civil law. However, the Bill does some important things. As my hon. Friend the Member for Somerton and Frome said, it is modest, but it is none the less important for that. However, I fear that we still have quite a bit of work to do.
2.41 pm
Tony Lloyd (Manchester, Central) (Lab): I begin by welcoming the consensual tone of the hon. Member for North Southwark and Bermondsey (Simon Hughes). I also want to make a few brief points about the role of the trade unions and about the question of mesothelioma, which is enormously important.
I should perhaps start by saying that I have an interest as an active trade unionist and as chair of the trade union group of Labour MPs. I also have an interest in the asbestos industry, because I worked in an asbestos factory when people were systematically subject to risk that ought to have been criminal, not simply the subject of compensation. If I have some reasonably strong feelings on the subject, perhaps Members of the House will understand.
I was disappointed by the speech of the hon. Member for North-East Hertfordshire (Mr. Heald), in that he wanted to perpetuate a certain type of myth, which, I am afraid, goes back to the visceral view among some of those who occupy the Conservative Benches that trade unions are fundamentally a bad thing. The reality is that if most members of trade unions were asked in whom they had greatest trust in pursuing on their behalf an employment claim or a claim for personal injury, the trade unions would figure highly in terms of a relationship of trust.
That does not for one second ever absolve those trade unions—the Union of Democratic Mineworkers in the east midlands is one—that have behaved spectacularly badly with respect to their members and have operated, de facto, as claims farmers. However, it is important to establish that there is a position of trust between trade union members and their unions as their representatives.
In that light, the hon. Gentleman, who is absent from his place and who told the House that trade unions make their money by claims, did not give an accurate picture of reality. I wish that, when pressed, he had been prepared to justify his claims from the Front Bench and name the trade unions that he claims are abusing the position of trust.
It is important that, for example, lawyers maintain professional integrity and that their clients believe that most lawyers operate honestly and decently, even
though we accept that there are rogue lawyers in the system. In the same way, it is important that members of trade unions have the same trust. It is not reasonable to use the facilities of this House of Commons to make a generalised condemnation of trade unions in a way that is designed actively either to mislead or to pursue a partial point.
Mr. Heald: I thought that it was common knowledge that trade unions are paid a referral fee when they send a case to a solicitor and that, in many cases, they also receive success fees. Is the hon. Gentleman suggesting that I am wrong about that?
Tony Lloyd: I am not suggesting that the hon. Gentleman is wrong about that, but he knows that that is not what he said. I will make him an offer. If he reads exactly what he said in Hansard tomorrow and is prepared to come and apologise to me personally if he was wrong in what he said about trade unions making their income from referrals, I will also read Hansard and apologise to him if I am wrong about it. I would even be prepared to make a point of order to make that apology to the House. I hope that the hon. Gentleman will be big enough to do the same, because the problem is that his comments were not only an unfortunate misrepresentation, but a distorting misrepresentation. I am very disappointed that the new Conservative party should adopt its old position of hostility towards the trade unions.
No member of a trade union wants rogue trade unions that operate against the interests of their own members. Nobody seeks to justify the situation seen in the east midlands, of unions acting as claims farmers, and that should be condemned by every Labour Member of Parliament and by the trade union movement. We have to ensure that if a trade union operates as a claim farmer, it will not benefit from the general exemption offered to trade unions. The code of practice to which the trade unions will be expected to adhere must be sufficiently strong to regulate their role properly, in a way that is analogous to the regulation of the legal profession and others on this issue. That is an important part of the bargain for trade unions and would be accepted by most Members of Parliament as automatic, but more importantly it would be accepted by most trade unionists and their trade unions. The balance that my hon. Friend the Minister struck is important, because it establishes, not that trade unions have special rights, but that trade unions have a particular position of trust on behalf of their members and that has been respected. It is the rights of the ordinary members of trade unions that are protected by this legislation.
I am also concerned about the issue of mesothelioma and the capacity of the Bill to serve as a vehicle to change the law on Barker. As my right hon. Friend the Member for Newcastle upon Tyne, East and Wallsend (Mr. Brown) has already said, that is an important issue. We know that those who are diagnosed with mesothelioma, sometimes many decades after they have left the company, industry or situation that exposed them to asbestos, face a grim prognosis. People generally live only a short time after diagnosis—between 12 and 18 months—and it is a particularly cruel and unkind form of cancer even among those cancers that still kill.
The families involved experience enormous distress. What that means is that the period in which the individual has access to proper justice, at least in the form of compensation, is also short. It also means that those who are entitled to compensation often—
Mr. Brazier: On a point of order, Madam Deputy Speaker. I am sorry to interrupt the hon. Gentleman in making his important points, but there is a very irritating noise in the Chamber, which is making it hard to concentrate. Can somebody investigate whether it is the sound system or something else?
Madam Deputy Speaker (Sylvia Heal): The matter is under investigation and I hope that it will be sorted out soon.
Tony Lloyd: I am delighted to know that I am not the irritating noise.
We need the Barker judgment to be reversed. The present situation—as my hon. Friend the Member for Hendon (Mr. Dismore) pointed out—is bad because it splits liability and therefore in the many cases in which the companies no longer exist the individual firm that contributed to causing mesothelioma will be able to avoid paying compensation.
In fact, the problem is worse than that. The allocation of risk process means that the accepted defence in many cases will be that non-existent companies bear a greater proportion of responsibility for the factors leading to mesothelioma. Claimants will get only tiny levels of compensation as a result, and that is simply unfair. The Barker judgment has no legitimacy, and a change in that respect is needed very urgently.
I very much welcome my hon. Friend the Minister’s clear commitment that the Government are looking to make a change. Many hon. Members have raised this matter in the Chamber—my hon. Friend the Member for Amber Valley (Judy Mallaber) did so with my right hon. Friend the Prime Minister yesterday—and elsewhere. We know that the Government are sympathetic to proposals for change, but we need to ensure that there is an urgency about delivery, and that it is consistent with our recognition of the damage done to people who are rendered very vulnerable by the condition.
I know that many other hon. Members want to take part in the debate, so I shall not use my full 15 minutes. However, I must tell my hon. Friend the Minister that efforts will be made to table an amendment to the Bill that would allow the Barker judgment to be set aside. I hope that such an amendment, whether it comes from the Government or the Back Benches, will do the trick, although I understand that it may not be possible or practical to devise an appropriate proposal in the time available.
I hope that the hon. Member for North-East Hertfordshire will reconsider his remarks. I am afraid that he gave me nothing better than a resounding “maybe” in response to my question about the Opposition’s support for a change in the legislation. I hope that he will go further, as the inclusion of such a provision might have aroused opposition in the Lords and caused the Bill’s passage there to be blocked. Progress will be easier if we can agree that the change is desirable and deserving of support by the Opposition in the Lords.
Mr. Clapham: My hon. Friend emphasises the urgency of this matter. Another factor is that claimants cannot now claim under the Pneumoconiosis Etc. (Workers’ Compensation) Act 1979, as was possible when the Fairchild case was being considered. Does he agree that that law must be restored as a matter of urgency?
Tony Lloyd: My hon. Friend is absolutely right, and I pay tribute to his long and consistent campaign on this issue. I hope that we are moving towards consensus about what the range of problems is, and their possible solutions. It would be very strange if any hon. Member were to regard those who suffer from mesothelioma as deserving of anything but the maximum sympathy. We must take every practical step that we can to compensate them.
I shall finish by saying that, if I had my time again, I would be far happier to see the people who managed the asbestos industry when I knew it sent to jail rather than required to pay compensation. They were not merely negligent about their stewardship of the industry: they were criminals.
I congratulate my hon. Friend on the Bill, and on the way she introduced it to the House today.
Madam Deputy Speaker: Order. Before I call the next speaker, and in response to the point of order raised by Mr. Brazier, I inform the House that an engineer is investigating the distracting noise that we can hear to see whether it has anything to do with the sound system.
2.54 pm
Mr. John Greenway (Ryedale) (Con): First, I remind colleagues of my entry in the Register of Members’ Interests. In warmly welcoming the Bill, I remind the House of the work of the all-party insurance and financial services group, which I have chaired since 1992. For many years, we have taken a close interest in the issues covered by the Bill. In anticipation of the draft Bill, we took evidence last year from a number of organisations and 11 witnesses in total, including various insurance lawyer trade associations, the industry and even the Claims Standards Council. We issued our report in November.
There are three features of the current compensation environment—I shall not be drawn into a debate on whether there is a compensation culture—against which to judge the likely effectiveness of the Bill: risk aversion, rehabilitation and the regulation of claims managers. Risk aversion is important because, as we all know, many events or activities do not take place because of concern over potential claims for negligence in respect of personal injuries. Public liability insurance costs have risen to the extent that many activities do not take place because there is no public liability insurance cover and the leisure industry has seen a dramatic increase in the cost of both employee and public liability insurance.
Secondly, rehabilitation is important because we are still not doing nearly enough to ensure that people who suffer major injuries as a result of a workplace or motor accident are treated quickly and got back to work quickly.
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