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17 July 2006 : Column 53

Mr. Andrew Dismore (Hendon) (Lab): Will the hon. Gentleman give way?

Mr. Heald: I must make some progress. The hon. Gentleman has much on the selection list and we will hear from him later.

As I said earlier, what we are considering is hardly an example of joined-up government. However, we support the Government’s decision to reverse the court decision. It is important to be sure that it goes as far as necessary.

Nick Starling, director of general insurance at the Association of British Insurers, said that the organisation remains concerned that the new clause still does not tackle some of the problems that the ABI identified. He said that, in particular, analysis of several scenarios revealed a danger that some claimants will not receive full compensation. That is likely to occur when all the defendants are insolvent and there are gaps in insurance cover. I would be grateful if the Minister gave a fuller response than the one that she gave earlier about that, because it would be good to get this matter sorted out at this stage.

Mesothelioma is a dreadful disease. It is caused by asbestos fibres and can lie dormant for 30 to 40 years. Following diagnosis, it is incredibly aggressive and often leads to death in one to two years. It is a very painful and distressing condition, and it is often the result of a failure to provide a safe system of work. Not every sufferer will have a legal case, but some of those who do cannot trace their former employer or his insurer. The problem with doing no more than reversing the Barker judgment is that it will do nothing to speed up compensation, to make the process less adversarial or to give those who cannot trace their former employers or their insurers access to justice. Such a move would also require expenditure on legal costs that might not be strictly necessary.

There is a case for establishing a scheme to compensate those who have a case and to provide for later recovery and apportionment of damage, and I am pleased that the Minister is having discussions on this matter. My new clause 6 would enable her to take legislative powers now. She has told the House that the Department for Work and Pensions will make a statement on mesothelioma. Is a separate body part of the solution that is being considered?

Mr. Dismore: The hon. Gentleman has not made it clear who would foot the bill for the scheme that he proposes. Is he suggesting that it should be the Government, or perhaps the insurance industry, through a pool system such as that used for motor accidents involving uninsured drivers?

Mr. Heald: As the hon. Gentleman will know, discussions are continuing. I understand that one of the suggestions on the table is for a system similar to that in Holland. I recently attended the Insurance Times conference, at which representatives of the Association of British Insurers were giving their ideas on this matter. They felt that it would not be necessary to go as far as the hon. Gentleman suggests, but that if we were able to take the liability of the compensation scheme, of the Government and of the insurers, and to
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apportion claims on that basis, no additional funding would be required from the Government.

That would have to be fully discussed. I think that the hon. Gentleman would agree, however, that it would be good if we could take a large proportion of the legal costs out of the equation. I realise that he might find that difficult, given his background of 15 years with Thompsons and several years with other solicitors working in the claims field. One of the most important aspects of the claims is that of legal costs, and of how much money is being taken out of the system by claimants’ solicitors and others.

Does the Minister agree that it will be necessary to have appropriate rules of court to underpin the workings of new clause 13, and particularly of subsection (4)? Can she give us an assurance that Ministers will do all that they can to ensure that such rules are agreed and adopted as soon as possible? In particular, claimants will have to give enough information about their work history at an early stage to allow a fair apportionment of contributions to be made or agreed between defendants. The Minister said that that might be covered by secondary legislation, but does she agree that it will also be necessary for the rules committee of the High Court to make a decision on this matter? I believe that it will also be necessary for the committee to make a decision on the mechanisms necessary to effect the proposed simple system of apportionment taking into account the length of the period of exposure, but with a court discretion to adopt a different measure in exceptional cases. It would be helpful if Ministers were prepared to use their good offices to help with that process and to encourage a speedy outcome on the rules.

While on technical matters, I also wonder whether it might be wise to explain, in proposed new subsection (5) to amendment No. 8, that only a claim affected by the section dealing with mesothelioma damages may be reopened. I also wonder whether the word “only” should appear after “settlement” in proposed new subsection (5)(c) and after “determination” in proposed new subsection (6)(c). The Minister might wish to consider these technical drafting points before the Bill is considered in the other place.

I am sorry to tell the hon. Member for Hendon (Mr. Dismore) that I do not support his new clause 7. I believe that it would be premature to accept such a proposal when the case of Rothwell v. Chemical & Insulating Co. Ltd is about to go to the House of Lords. I also wonder how confident he is that the decision is the right one, as he must recognise that if every risk became a cause of action, with damages attached, that would mean a lot more work for claimants’ lawyers. In the case of Rothwell, the Lord Chief Justice, Lord Phillips, said:

He went on to say that the costs of litigation in cases such as those before us tend to be disproportionate to the damages recoverable.

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When the hon. Gentleman speaks to his new clause, which he has registered an interest in doing, I would be grateful to know whether he really believes that the mere risk of damage, which might be tiny, should be actionable. If so, why does he say that? I accept the Minister’s view that the wording of his new clause is loose and unambiguous, and that it could allow a range of cases that do not currently attract liability to do so—for instance, those of pedestrians who have inhaled exhaust fumes, people who have eaten fatty food, home owners who have inhaled paint fumes while decorating, or those who have drunk a hot drink from a machine. All those people have taken risks. Is the hon. Gentleman seriously saying that they should all attract compensation, regardless of whether they have suffered any injury, simply on the basis that they are worried about it?

Mr. Dismore: Of course not, but my amendment refers to the lodging of a substance, whereas the hon. Gentleman’s examples are purely transitory and do not lodge in the body.

Mr. Heald: The hon. Gentleman will correct me if I am wrong, but it will take the courts many a long year to work out what “lodging” means. Does he accept that a range of issues relating to time limitation will be raised? [Interruption.] I hear the Cambridge law faculty agreeing. If “lodging” is the triggering factor, it seems to me that there will be plenty of work for those whom the hon. Gentleman knows well.

I agree with the Minister that the hon. Gentleman’s new clause would be a fundamental change to the legal framework and principles of common law, with wider ramifications. Those are the main points about the first group of amendments. We will certainly support the Minister on new clause 13.

Mr. Clapham: I thank my hon. Friend the Minister for introducing the new clause, which will restore fairness where there was unfairness following the Barker decision on 3 May. Put succinctly, it would say that where a person develops mesothelioma as a result of being subject to a risk, the person who exposed them to the risk is liable severally and jointly. That is how it should be. As the law stood, enormous unfairness was created, and the Minister explained how it could impact to reduce damages. For example, a widow who might have been able to trace only two of her husband’s 10 employers would have received just 20 per cent. of the damages. Clearly, that was unfair.

There will be a very large number of such cases, as there are 2,000 diagnoses a year. The hon. Member for North-East Hertfordshire (Mr. Heald) referred to costs running to perhaps £30 billion. Looking to the future, however, means that there can be some certainty about the bills that the insurance industry, as well as Government, will face, and some preparation can be made.

5.30 pm

We know that the number of claims will be significant. It has been suggested that over 50 years there could be more than 180,000, because people have been exposed to asbestos since the 1950s. I think it fair to say that no employer could argue that he or she was not aware of the effects of asbestos from 1965 onwards. Clearly we must deal with the issue, and I believe that my hon. Friend the Minister has tackled it very fairly.

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In summing up the debate, my hon. Friend may tell us whether people will still be able to claim under the Pneumoconiosis Etc. (Workers’ Compensation) Act 1979 once the position before 3 May has been restored. The Government made it possible for them to do so at the time of the Fairchild case. People were queuing up behind that case, waiting to get their own cases into court. Given the seriousness of the disease from which they were suffering, the then Secretary of State introduced the potential for them to claim under the Act.

The hon. Member for North-East Hertfordshire said that my hon. Friend the Minister was thinking kindly. The Labour Government at that time were much more compassionate than, for instance, earlier Tory Governments. One example is the Tory Government’s refusal in the early 1990s to implement a scheme for miners, although it would have saved the taxpayer an enormous amount of money.

Mr. Heald: The hon. Gentleman knows as well as I do that the Government set up the compensation scheme following a court ruling. In effect, they had to set it up because of the ruling.

Mr. Clapham: The hon. Gentleman will be aware that when we were arguing for such a scheme, his party in government took the view that the medical knowledge of the day could not distinguish damage done to the lungs by dust from damage done to them by smoking. That was what led to the unions taking the case to court. We found that medical evidence had been available to the Government, including the findings of a longitudinal study of miners in Belgium. The Government used it when they introduced the industrial injuries disablement scheme for chronic obstructive pulmonary disease, but it was left to the present Government to implement this scheme. I agree that it might have been devised in a different way, but it was introduced in its present form, and it has brought a great deal of help to elderly miners suffering from COPD.

My hon. Friend the Minister should also be congratulated on the retrospectivity in the new clause. Some cases will have been trapped between 3 May and the date of Royal Assent, and we need a mechanism for dealing with them. I believe that the Bill provides such a mechanism. As the hon. Member for North-East Hertfordshire said, there may well be cases in which the employer or the insurance company cannot be traced and a claim must be made under the Financial Services and Markets Act 2000. Perhaps we can try to ensure that almost the full value of a claim can be obtained.

The hon. Gentleman referred to the Minister’s discussions about the type of scheme that would be introduced. I have always been a scheme man for these kinds of cases. I hope that we will look at embracing the total number of mesothelioma cases and include in the scheme, for example, members of households who have been exposed to the fibre brought home on a worker's clothes. People in that position cannot claim industrial injuries disablement benefit. That may be another area that we need to look at when we get the Green Paper on industrial injuries. However, overall, the new clause is good. It makes the Bill a substantial measure and I congratulate the Minister on it.

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Simon Hughes: May I first pay warm tribute to the hon. Member for Barnsley, West and Penistone (Mr. Clapham)? He, naturally, because of his constituency and background—but not necessarily because of that—made it clear that the issue would not go away from our deliberations in Parliament and I unreservedly pay tribute to him for that.

I thank the Minister for her commitment to ensure that, if it were humanly possible, the new clause and the other new clauses and amendments would be included in the Bill during its passage through this House. In the debate on Second Reading, the issues were well and truly aired. She made a commitment to do what she could. At the beginning in Committee, we said that we were happy to take the new clause in Committee if it were possible. It just was not. I do not blame anyone for that and the Minister has kept us all well informed at all stages. I am pleased that we have the opportunity to include the new clause before the Bill leaves the Commons, which is the right place for the matter to be discussed, and where people who represent past, present and prospective sufferers of this terrible disease can express their strong views on behalf of their constituents.

One or two of my colleagues have raised the matter before. I mention them because they, like colleagues on both sides of the House, have, perfectly properly, a constituency interest in these issues. My hon. Friend the Member for Inverness, Nairn, Badenoch and Strathspey (Danny Alexander) was supportive the other day on the basis that there should be a scheme, which should be moulded to look after the people who are suffering. My hon. Friend the Member for Dunfermline and West Fife (Willie Rennie) has in his short time in the House already expressed an interest, as has my hon. Friend the Member for Rochdale (Paul Rowen), who again has an obvious constituency commitment. I made it clear from the Front Bench on Second Reading that the Liberal Democrats would do all we could to facilitate the speedy passage of the legislation.

There is one technical point. Perhaps there is more than one, but there is one important technical point that my hon. Friend the Member for Cambridge (David Howarth) will want to raise about the specific implications of these proposals for the law and about the importance of getting all this right. It is important that we do not go back to the position of the law before the Barker v. Corus case and discover that people who want to be included are excluded. I will leave my hon. Friend to make that case, if he catches your eye, Madam Deputy Speaker. We must ensure that we do not lose opportunities to adjust the scheme if there is anything we need to do to catch everyone we need to catch.

I will make some quick points because many other colleagues want to speak. This disease is serious and sudden in its manifestation and consequences. It affects people who have worked away, often in dangerous and hard jobs, in all sorts of industries— mining, shipping, industrial warehousing, as laggers, painters, doing all sorts of jobs—and discovered, after what could be a long lead time, that they are suffering from mesothelioma and that the asbestos fibres may eventually have fatal effects. The hon. Member for Barnsley, West and Penistone made the other point that it is not just the workers; it is people who have come into contact with them, normally
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wives, but even other family members, too. This is about trying to find a scheme that covers the significant number of people who have been affected.

We have heard the figures and I think we agree about them: 2,000 a year, peaking only in about 14 or 15 years and then continuing. So a lot of families are affected, and sometimes more than one family member is affected. In some cases, the father or husband has died or become ill, and other family members are affected later. It is right that we should seek to address the issue.

I only ever had one major concern and, from conversations with the Minister and colleagues, I believe that it has been addressed. I was concerned that Parliament should not legislate retrospectively if that adversely affected the rights of anyone who had not agreed with the change. That is an important principle of law. It was therefore sensible that the courts stayed almost all the cases under consideration—the hon. Member for Barnsley, West and Penistone raised one case that might have slipped through the net—once they realised what the Government were doing. It is important that the legislation covers those cases that will be the subject of litigation in the future, but the Minister has been able to assure me and others that, because the insurers have agreed, retrospective change is not a problem. In recent years, the House has only once legislated to change the law retrospectively, on war crimes. It was controversial, but was regarded as so important that, after great difficulty in reaching agreement, Parliament decided to do that. It is an important principle that individuals and companies know what the law is, so we should not normally change it retrospectively. In this case, my understanding is that those whom the retrospective change will adversely affect have all signed up to it, because natural justice demands that people are not left suffering without a scheme to help them.

I asked the Minister how we can ensure the law is implemented as quickly as possible. Hon. Members said on Second Reading, in their lobbying and in Committee, that once the legislation had been sorted—with the help of the draftsmen and women—and the Lords had agreed it, we wanted to be able to move quickly. I accept the Minister’s comments about it being quicker to use the process that she has described for working out the compensation than to have a separate independent board, which was my initial preference. It was also suggested by the insurance industry initially and by the hon. Member for North-East Hertfordshire (Mr. Heald).

I am slightly troubled by one remaining issue. The Bill will, I hope, be put into its final form today and pass through its stages in the Lords before the summer recess. However, from what the Minister said, it sounded as if we will have to wait until after the recess for the regulations to be laid and agreed, and only then will it come into force. That could be another six months wait. I hope that the Minister will clarify whether that is a fair assessment when she winds up. I do not wish to be unreasonable, but I would remind her that one of the reasons for the new clause is the need for speed to help people who are ill and suffering today or are the bereaved relatives of those who have suffered in the past. The life expectancy after diagnosis can be very limited—months or perhaps not much more than a year—so time is of the essence. I hope that we can work together to get the regulations on the statute
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book by agreement of both Houses, so that people may receive the compensation they need for an illness that was an unexpected consequence of working in this country’s interest in all sorts of places over many years.

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