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Jim Sheridan (Paisley and Renfrewshire, North) (Lab): On the subject of the Treasury, my hon. Friend knows that many voluntary organisations are involved in helping victims and families through such traumatic times. Will she tell the House whether the Bill will assist voluntary groups such as Clydeside Action on Asbestos, which does a terrific job helping people to prepare claims and apply for compensation?
Bridget Prentice: When we consider other parts of the Bill, my hon. Friend will find out what we are doing to exempt some groups, and the organisation that he has mentioned may fall into that category. Where charitable and voluntary organisations are helping victims, I hope that the Bill will protect them and allow them to continue their good work.
Simon Hughes (North Southwark and Bermondsey) (LD): The Minister knows that I welcome the initiative, about which I shall say more later. When she secured the general support of the Association of British Insurers for a compensation scheme, what was her answer to its proposal that there should be a separate body to deal with claims, which might be a quicker method than the one that she has just described? May I assume that she will go on to discuss how the Government are sure that they will be justified in law and that the retrospective aspects of the proposal will not be overturned?
Bridget Prentice: I will discuss the retrospective aspects of the proposal shortly. The ABI has been helpful, and we have taken on board a number of issues that it has raised. We think that that method will be faster than setting up a board, which would require rules, regulations and appointments. We will be able to get compensation to people from the moment of Royal Assent, which employers and insurers will, where appropriate, be able to claim back. The system will be swifter and simpler for victimsthe hon. Gentleman supports the new clause, and he knows that our main focus is getting compensation to victims as swiftly as possible.
On retrospection, amendment No. 8 allows the provision to be retrospective, which means that it will apply to claims settled or determined on or after 3 May 2006the date of the Barker judgmentand it allows parties to seek the variation of any such settlement or determination. It will also apply to cases that have not been concluded. We regard it as being of the utmost importance that all claimants affected by the Barker judgment can secure full compensation, including the parties to that case, the parties to the cases conjoined with that case and the parties to cases subsequently settled or determined on the apportionment basis proposed by Barker.
I recognise that this is an exceptional step, but I believe that it is justified. I hope that it will have the full support of this House given the exceptional circumstances and that it will not raise difficulties in relation to compliance with the European convention on human rights. There are number of reasons why that is the case, and I want to set them out.
First, the degree of retrospection is strictly limited and will apply only to a very short period and a very few cases. It is my understanding that following Barker, the great majority of cases that were under way have been stayed pending clarification of the appropriate method of apportionment or in the light of the Governments announcement that they intended to introduce these amendments. I am grateful to the judiciary for waiting to hear exactly what we intended to do before they carried those cases through. In addition, those casesand any that have currently not been concludedwill have commenced prior to Barker, so the expectation of both claimants and defendants will have been that joint and several liability would apply. We are therefore not interfering with the settled expectations of the parties to any of those proceedings.
I believe that it would be unacceptable to provide assistance to future claimants but to leave a small group whose claims are unresolved, or have been concluded on the basis of Barker, to suffer the real disadvantages arising from that judgmentand I therefore believe that the provisions on retrospectivity are therefore proportionate and justifiable. We are talking about barely seven or eight weeks.
Mr. Michael Clapham (Barnsley, West and Penistone) (Lab): Has my hon. Friend any idea of the number of cases that may have gone through the courts in the period since 3 May following the Barker decision? As she will recall, I referred a case to her following a question that had been put to me by the Liverpool asbestos group, which cited a case that the judge had refused to defer, and with which he insisted on proceeding. As a result, the compensation was supposedly less than it would have been. Under the Government amendment, that case could be heard again, but it would be good to have an idea of the number of cases that have gone through the courts in that time.
Bridget Prentice: My hon. Friend has raised that case with me before. We have tried to find out how many cases there are, and as far as we are aware, the vast majority have been stayed pending the decisions of this House and the other place on the Bill. I am grateful for that, as it means that everyone is in the pre-Barker position. I do not know exactly how many cases have gone through. However, we are allowing this tiny amount of retrospectivity to ensure that people do not end up unjustly penalised because their cases were unfortunate enough to fall within the two months between Barker and the time when the Bill will, I hope, receive Royal Assent.
The Scottish Parliament recently passed a legislative consent motion, and amendment No. 9 therefore ensures that these provisions will apply across the United Kingdom. Colleagues in Northern Ireland have also signalled a wish for the provisions to apply there.
To ensure that claimants receive the benefit of the provisions as soon as possible, amendment No. 7 provides for them to come into effect, together with the provisions in part 1 of the Bill, on Royal Assent. Amendment No. 10 makes the necessary consequential change to the title of the Bill.
New clause 6 would give the Secretary of State the power by regulation to establish a mesothelioma compensation board and to define its functions and powers. As I said to the hon. Member for North Southwark and Bermondsey (Simon Hughes), it would be premature to create a statutory power of that nature.
As I said in introducing new clause 13, the legislative action that we are taking to reverse the effects of the House of Lords decision in Barker is just a first step, and we fully agree that more can be done to improve the system for dealing with these claims and to ensure that claimants receive the compensation to which they are entitled as quickly as possible.
With that in mind, officials in my Department and in the Department for Work and Pensions are working with stakeholders such as the ABI, the Association of Personal Injury Lawyers and the TUC to identify ways of speeding up claims. A number of suggestions have already been made about how that should operate, and we are discussing how to speed up the tracing of employers and insurers and how to make best use of specialism throughout the system by insurers, lawyers and the courts. We are also considering all the options and working with stakeholders to find a fair and workable solution. I believe that until that work is completed, it would be premature to take powers in legislation to adopt a particular approach that might not in practice turn out to be the most appropriate.
New clause 7 creates a cause of action in cases where a chemical or substance has lodged in the body as a result of negligence or breach of statutory duty; whether or not any symptoms have been caused at the time that the action is commenced or brought to trial. My hon. Friend the Member for Hendon (Mr. Dismore) raised the issue of pleural plaques on Second Reading, and the focus of this provision may be intended to create a cause of action in respect of pleural plaques.
As I said both on Second Reading and in answer to parliamentary questions, pleural plaques are small localised areas of fibrosis found within the pleura of the lung caused by asbestos exposure, which do not impair lung function. They are an indicator that a person has been exposed to asbestos in the past and may have a slightly increased risk of going on to develop a more serious asbestos-related illness in the future.
The question of whether pleural plaques should be a compensatable disease in respect of which a cause of action can be brought is currently the subject of an appeal to the House of Lords, so I do not believe that it is right for the Government to pre-empt the Law Lords consideration of those cases by legislating in that way at this time.
Bridget Prentice: I hope that, with the debates going on here and in the other place and with the careful consideration of the judges, they do not get it wrong. However, I can tell my hon. Friend that the Department for Work and Pensions will be launching a Bill in the not too distant future. It is not for me to say at this stage, but if such a Bill were to be introduced, my hon. Friend and others would be able to lobby my colleagues in the DWP to establish whether further legislation was appropriate.
To return to the new clause, it is undesirable in itself. It is worded in very general terms and could potentially extend to a range of other situations where no actual damage is apparent at the time an action is commenced or brought to trial. That could create confusion and uncertainty in the law and lead to extensive and costly litigation over the possible circumstances in which it applied.
On new clause 8, prior to May 1987 service personnel were prevented from pursuing claims for compensation from the Ministry of Defence by section 10 of the Crown Proceedings Act 1947. Crown immunity prevented claims from being made prior to 1947, but section 10 was repealed by the Crown Proceedings (Armed Forces) Act 1987. Since the change in the law, which was not made retrospective, service personnel who suffer loss or injury as a result of negligence by the Ministry of Defence have been entitled to make common law claims for compensation. When compensation claims are submitted, they are considered on the basis of whether the Ministry of Defence has a legal liability to pay compensation. Where there is a legal liability to pay, compensation is paid.
At the time of the passage of the 1987 Bill, the question of retrospection was debated and motions to allow members of the armed forces, past and present, to pursue claims for injury or death suffered in incidents since 1947 were moved, but either defeated or withdrawn. The prevailing view at the time was that, short of trying to cover all incidents and all types of injury going back to 1947, there was no logical point at which to draw a line, and that making the Act retrospective would create many new examples of unfairness and injustice.
That clearly shows the difference between the retrospectivity that we are introducing in specific cases and more general retrospectivity, which is not the way forward. The perceived unfairness in the way in which claims for compensation from former service personnel suffering from an asbestos-related disease were handled was the subject of a review, the outcome of which was announced in 2001.
Careful consideration was given to this apparent unfairness in compensation arrangements, and to the scope for providing additional help. However, the review demonstrated that compensation through war pensions and allowances or under the common law can be shown to be broadly comparable over time, and that there was therefore no general unfairness in the way in which these claims were handled. As it would be inequitable to treat this group in isolation in terms of common-law compensation, thereby creating many examples of unfairness and injustice, Ministers at the Ministry of Defence decided not to make any changes to the current arrangements, and that remains the Governments view.
On that basis, I hope that the House will support new clause 13 and attendant amendments, which will ensure that mesothelioma sufferers can get the compensation that they need and deserve. I also hope that other amendments will be withdrawn at the appropriate time.
We welcome new clause 13, which will overturn the recent judgment in Barker v. Corus. We are dealing here with a matter of public interest. It is important to recognise that the Government took the case to the House of Lords as a test case. It is more than
odd, therefore, that although the judgment was delivered in May 2006 the Government are now introducing emergency legislation to overturn what they argued for in court as recently as six weeks ago.
The Minister rightly says that Miss Barker brought one of the cases and that another applicantplaintiffbrought another case against companies that are now under the umbrella of British Shipbuilders, a statutory corporation that is owned entirely by the Government and sponsored by the Department of Trade and Industry. Therefore, a Minister in that Department agreed to the Government taking the case all the way up to the House of Lords to establish something that nowjust a few weeks laterthey think is so unpalatable that they must introduce emergency legislation.
The solicitor who acted for British Shipbuilders has written to me making the point that this is a matter of public interest. The public are entitled to know the identity of the DTI Minister who made that decision, how much the Government have spent on these cases that have gone through all the courts up to the House of Lords, and whether the decision made in the House of Lords will now be overturned. Will Miss Barker get her costs, and what exactly was going on, because this is not an advert for joined-up government?
Mr. Redwood: I am grateful to my hon. Friend for bringing this conundrum before the House. He might be right that the fact that people did not talk to each other was a result of a lack of joined-up government, but if that were the case I would be surprised, as the civil service is usually very good at clearing such matters. Could it not be that people thought that they could get away with this, then discovered how embarrassing it was and, having seen the strength of representations, have now had second thoughts?
Mr. Heald: Ministers suggested in meetings that this was all to do with the insurance industry, but in fact the industry funded none of the cases that went to the House of Lords under the Barker v. Corus umbrella: the Government funded two of the cases and one was funded privately. Those test cases were pursued because a lot of former Government employees, who worked in the Ministry of Defence and other Departments, were exposed to asbestos. This will be expensive for the Government in the long term, and I guess that they were attempting to ensure a smaller bill than they might otherwise have.
There must have been a momentI imagine that it occurred in the Department for Constitutional Affairswhen someone suddenly said, What have we done? It was at that point that the decision was made to reverse this, and to do so quickly. I welcome that.
Simon Hughes: I share the hon. Gentlemans view of the strange history of these matters. One of his colleagues asked the Under-Secretary whether she could provide an estimate of the cost of the proposal. Has he, from his contacts or work, been able to come up with an immediate estimate for the first set of claims or an annual estimate thereafter?
Mr. Heald: That is extraordinarily difficult to do because the cases will not peak until 2020 and the disease is unpleasant and difficult. The insurance industry has provided an informal estimate of up to £15 billion.
Mr. Greenway: The all-party insurance and financial services group was briefed on the matter only last Tuesday. There are some 2,000 asbestosis-related deaths per annum. Average life expectancy after diagnosis of mesothelioma is one to one-and-a-half years. The average settlement is £150,000. We are therefore considering probably £15 billion over five years and perhaps as much as £30 billion over 10 or 15 years.
Mr. Heald: I heard a similar figure. The Government will doubtless be considering their liability, Department by Department, on the new basis. However, I know from previously asking the question that Ministers do not have an estimate in mind.
Mr. Frank Doran (Aberdeen, North) (Lab): The hon. Gentleman makes a mountain out of a molehill. He knows that, before Barker, the Fairchild case dramatically altered the way in which liability is assessed. Any Minister worth his or her salt who was given legal advice about the implications of that would be duty bound to follow it and do what was done in the Barker case. When the Conservative party was in government, similar things happened. It is great fun to develop conspiracy theories, but they have no basis in fact.
Mr. Heald: The hon. Gentleman should not talk in terms of conspiracy theories. That always worries me. Let us consider the position of Miss Barker. Her case could have been settled on the Fairchild basis of joint and several liability. There was no reason not to do that. However, the Government decided to make it a test case, take it all the way to the highest court in the landthe House of Lordsand see what the judgment would be. Given the Under-Secretarys position today that Fairchild is correct and the right law for our country, it is odd to have gone all the way to the House of Lords, arguing something completely different, barely six weeks ago.
Bridget Prentice: Let me clear up the matter once and for all and add to the comments of my hon. Friend the Member for Aberdeen, North (Mr. Doran). The hon. Gentleman suggests that the Government tried to avoid paying compensation. Our ability to introduce amendments so quickly shows that every member of the Government who is involved in the matter recognised the importance of reversing Barker. There was no shilly-shallying about that. It is nonsense to suggest otherwise.
Mr. Heald: The Under-Secretary knows that I have the highest opinion of her kindness and consideration. I am sure that, if she were faced with the difficult position post-Barker, especially with all her colleagues making representations to her, she would do the right thing. However, can she name the Department of Trade and Industry Minister who gave the go-ahead for the case to be pursued all the way to the House of Lords? Was it the current European Trade Commissioner? We are entitled to know.
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