Clause
42
Conditions
of
entitlement
11.30
am
Mrs.
McGuire:
I beg to move amendment No. 143, in
clause 42, page 37, line 8, leave
out from ‘that’ to end of line 9 and insert
‘such requirement, if any, as may
be prescribed by regulations as to the person’s connection with
the United Kingdom is
satisfied’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 148, in clause 42, page 37, line 9, at end
insert—
‘(d) The Secretary
of State may by regulations include in subsection (c) such persons who
have been employed by companies based in the United Kingdom and
operating
abroad.’.
Government
amendment No.
144
Mrs.
McGuire:
Obviously, with your approval, Mr.
Taylor, I shall respond as appropriate to the hon. Member for Rochdale
in whose name amendment No. 148 has been
tabled.
The two
Government amendments make it clear that the Government may, as
necessary, introduce regulations setting out the connections with the
United Kingdom that a person with mesothelioma must have in order for
them, or their dependants, to be able to receive a lump sum payment
under the new scheme. The amendments make it clear that regulations may
be made, depending on whether it is necessary to do
so.
We want to ensure
that payments from the new scheme are available to those who have
contracted mesothelioma as a result of exposure to asbestos in the
United Kingdom. I make it clear that we do not expect people exposed
abroad, or their dependants, to travel to the UK just to claim the
payment or to make a claim from abroad. If we have evidence that the
system is being used in that way, however, we want the power in
regulations in order to deal with it. We do not anticipate any
difficulties in that respect, but we feel that it is entirely
appropriate that we take such an enabling power in the
Bill.
Mr.
Clapham:
Such cases crop up from time to time. You may
have come across cases in your constituency, Mr. Taylor,
given that it is a mining constituency, in which people have moved
abroad and then been diagnosed with a disease for which compensation is
available, such as under the chronic obstructive
pulmonary disease scheme. The Minister might be aware that under that
scheme there is a procedure whereby medical reports from abroad are the
accepted basis for determining a diagnosis. Presumably, she would work
in a similar way, because it is no use inventing the wheel twice. If
the procedure under the COPD scheme is working well, maybe the
Department should look at it as a way in which to deal with cases from
abroad in relation to payments under the scheme that we are discussing
here.
Mrs.
McGuire:
I need to clarify for my hon. Friend that
industrial injuries benefits still have a work component, as I think
that he recognises. If a person has contracted mesothelioma through
another route, they are not entitled to the industrial injuries benefit
that he mentioned earlier. Certainly, however, I shall reflect on the
point that he made about not reinventing the wheel, because not doing
so is a valuable rule to
follow.
Paul
Rowen:
The Minister and amendment No. 148, which I have
tabled, seek to do very much the same thing in this very restricted
area. I would like to quote from an evidence sitting in which I asked
Hilary Reynolds about a particularly important point. My question
was:
“However,
if someone was working on the docks in Gibraltar, or any British naval
dockyard not in the United Kingdom, would that affect
payment?”
Her answer
was:
“The
intention of the power is to ensure that people who have a connection
with the UK, either through their employment or because they live near
an asbestos plant, are covered, and to avoid the equivalent of benefit
tourists—if I am allowed to use that phrase. They are people
with no connection to the UK who travel here to gain a lump sum. People
working in the dockyards in Gibraltar would be covered because it is a
UK establishment.”——[Official Report, Child
Maintenance and Other Payments Public Bill Committee, 17 July 2007;
c. 39,
Q99.]
Mr.
Boswell:
That was my understanding of the position, and I
hoped that it was definitive, but I thought that the Minister said this
morning that it would be confined to the contraction of mesothelioma
arising in the UK. Notwithstanding the fact that the naval dockyard is
a British establishment, it is not within the UK, so I am slightly
concerned about the point that the hon. Gentleman is rightly
raising.
Paul
Rowen:
I agree. I went on to ask Hilary Reynolds:
“Would that include Gibraltarians?” Her reply
was:
“We might
need to go into more detail later. It is people who have a connection
with the UK. We are not trying to exclude citizens of particular
countries.”——[Official Report, Child
Maintenance and Other Payments Public Bill Committee, 17 July 2007;
c. 39, Q100.]
Gibraltar
is a dependent territory and people were working in a British naval
dockyard. My amendment is not intended to prescribe conditions, but we
are saying that a person employed by someone with a clear connection to
the UK, such as someone working in the dockyards in Gibraltar or Malta
who contracts mesothelioma as a result of that employment and cannot
claim through their own country, should be able
to access a compensation scheme. As Gibraltar is a dependent territory,
it is clear that there is a direct connection to the
UK.
Andrew
Selous:
This group of amendments is interesting and
important. I have sympathy with the Government amendments, which I
understand are intended to restrict lump sum payment tourism, if one
can call it that, whereby people would try to come to this country to
access the good scheme that is being set
up.
There are three
types of case about which I am not quite clear, and I shall ask the
Minister to elaborate on them. First, there is the case of a British
worker who spends their entire life working here in the UK, contracts
mesothelioma from their employment and then retires to Spain. Will that
person still be covered? I believe that that was the question that the
hon. Member for Barnsley, West and Penistone
asked.
Mr.
Boswell:
May I refine my hon. Friend’s point? There
might at least be the potential for a distinction between countries of
the European Union and countries outwith it—I am thinking, for
example, of the arrangements on retirement functions. We are all
anxious that that distinction is not created in this
matter.
Andrew
Selous:
I am grateful to my hon. Friend, who has great
experience on such matters. At this point, I am perhaps beginning to
have a bit more sympathy for the Minister than I should, because I know
we are posing a complicated set of questions, but they are incredibly
important. If she cannot give the details that we seek, will she assure
us that she will write to all members of the Committee, so that we are
clear about them?
Case
one was the retired worker going to Spain or wherever. Case two is the
worker in the British Crown dependency of Gibraltar or one of the
sovereign base areas in Cyprus, for example, who has perhaps worked for
the British armed forces for all their life. Case three is someone who
worked, for example, for Rio Tinto in Zambia. As I understand it, under
amendment No. 148 Rio Tinto would be considered as a company based in
the UK, but I do not believe that the intention behind the Bill is that
a Zambian working for a subsidiary of Rio Tinto in Zambia, under a
Zambian contract of employment and Zambian law, should be able to come
and claim a lump sum payment here in the UK. With respect to the hon.
Member for Rochdale, that would probably be the result of that
amendment.
Considering those three generic
cases and the possible refinement for the EU that my hon. Friend the
Member for Daventry mentioned in relation to case one, I should be
grateful if the Minister could give the Committee some
clarification.
Mr.
Boswell:
We have had a good rattle on some complicated and
sensitive issues, because I am quite sure that the Committee is at one
in not wanting to exclude anybody who has a material connection with
the United
Kingdom.
Most of the
points have already been made, but I would at least like to get the
Minister’s assurance that
she will reflect on the situation where there is a Crown employment
connection but that connection has not necessarily been established in
a British colony or a British territory. For example, at one stage we
had, controversially, a British naval dockyard at
Simonstown in South Africa, which was not, I think, a British
territory, although it was part of the Commonwealth at that time. We
need to be absolutely sure that we are covering everybody who has, in
effect, been working in the service of this country, wherever that may
have been, or indeed their dependants. That prompts my second
question. There is a reference in the helpful explanatory notes on
secondary legislation, which have been circulated to members of the
Committee, to the fact that a person with mesothelioma would not be
entitled to a lump sum payment, if they were eligible for a payment for
the same disease under the MOD’s war pension scheme or the armed
forces compensation scheme. I suspect that few of us would wish to sit
an exam on the details of those schemes, but would the Minister at
least undertake to go away and check
them?
I understand
from the way in which the clause is written that the Minister’s
new scheme, which we have all welcomed, is designed to pick up people
who are otherwise left out. In a case of secondary
contamination—for instance, the contamination of the wife or
partner of a service person who might be compensated under the war
pension scheme—they would be eligible under this scheme and not
under the MOD scheme. Given that we are anxious to avoid any possible
omissions, will the Minister at least undertake to ensure that anyone
who is a dependant is not ruled out, perhaps by the terms of the MOD
scheme, from claiming because they are not the person who was directly
employed in Crown service?
Mrs.
McGuire:
As hon. Members have graciously recognised, there
has been a series of detailed questions, some of which I will be able
to give a response to this morning; others I will answer by writing to
all members of the Committee.
In some areas, I will be able
to give some comfort to hon. Members. I reiterate that the principal
aim of the new scheme is to make lump sum payments quickly to those
people who are not currently eligible, as the hon. Member for Daventry
has rightly recognised, for help from the Government. We aim to fund
this new scheme by recovering lump sump payments from any later award
of civil damages. That means that people who have been exposed to
asbestos, or who currently cannot claim compensation under the
Pneumoconiosis etc. (Workers’ Compensation) Act 1979, would
receive compensation.
We have limited funds for the
scheme, as I think all colleagues have recognised, and we think it
right that those funds should be used to pay compensation to people
with links to the UK who have contracted mesothelioma. We have
obviously taken the power in the Bill to do
that.
Like all hon.
Members, I have every sympathy for anyone who has contracted
mesothelioma, which is a terrible condition, while working
abroad—they may even have been working for a UK-based
company—but, frankly, we simply cannot afford to pay people
from abroad compensation from this scheme. I know that there is a slight
refinement in the amendment, as the hon. Gentleman indicated in his
contribution to the debate, but I do not think that the UK taxpayer
should be expected to pick up that bill, albeit that we have every
sympathy for the individual concerned. If a person is exposed to
asbestos abroad due to the negligence of their employer, then, within
the parameters of their own country or of the country in which they are
resident, they need to examine whether there are compensation
schemes. May I deal
with some of the specific issues? The hon. Member for Daventry asked
whether, if the wife of a member of service personnel or other MOD
personnel were not entitled to compensation under the MOD scheme, they
would be able to claim for compensation under this scheme. I say to the
hon. Gentleman and other colleagues that the test for exclusion will be
the entitlement to the MOD
scheme.
11.45
am
On the issue of
civilians who work abroad, albeit in what might previously have been
described as British dependencies, foreign civilians who work for UK
companies will not be entitled to compensation unless they have some
other UK link such as residence. The issue of people who retire abroad
was mentioned by two or three hon. Members. If the exposure was in the
UK, and those people retired abroad, they would be entitled to payment
under the scheme. The link is the UK. We do not believe that the
existence of the scheme will encourage people to travel to the UK, and
that point was affirmed by the hon. Member for South-West
Bedfordshire.
The
hon. Member for Rochdale asked some very specific questions about MOD
staff working abroad in Gibraltar, and somebody else mentioned Malta.
The situation is complicated by bases that were not entirely part of
the UK, such as Simonstown. We shall make a payment from the new
mesothelioma scheme in cases where the MOD will not pay, because
exposure did not occur in service. I hope that that clarifies the
position. I was asked whether people can claim if they are diagnosed
with mesothelioma caused during service in the armed forces. If the
condition was caused during service before 6 April 2005, ex-service
personnel can claim under the war pensions scheme, to which no time
limits apply. If the condition was caused during service on or after
that date, a claim can be made by both serving and ex-service personnel
under the armed forces compensation scheme. I hope that that covers
most of the issues of detail that hon. Members have highlighted. I urge
the hon. Member for Rochdale not to press his amendment. Although he
clarified the thinking behind it, it is of much wider scope than the
points that he mentioned.
Paul
Rowen:
The Minister is right; the particular circumstances
that I was concerned about are very specific. I do not want any
extension of the provisions to British companies operating
abroad—clearly, none of us want that—so I shall not press
my
amendment.
Amendment
agreed
to.
Paul
Rowen:
I beg to move amendment No. 147, in
clause 42, page 37, line 13, leave
out from ‘that’ to end of line 14 and insert
‘dependant’.
The
amendment probes the conditions for the entitlement of dependent
persons, and it draws attention to certain family situations. The
Minister may wish to explain the working of entitlement but, as far as
I can make out, subsection 2(a) restricts the payment of a sum under
subsection (3) to dependants in cases in which a payment has not yet
been made to the individual who is ill.
What would happen if a payment
was made to a sick person or to a dependant, but later an application
was made by another dependant, who would not be entitled to even a
small payment under the Bill? The provision is concerned only with the
initial claim and with a payment split between the
sufferer and their dependants. If another dependant made a claim, they
would not be entitled to payment, so will the Minister explain how the
arrangements for the sick person and their dependants will operate?
Furthermore, if a dependant receives a part-payment, and is shown to be
suffering from mesothelioma because of previous occupational hazards,
including secondary contact such as washing overalls, will they be
entitled to a separate payment under subsection (1) if they have
already received a dependant’s payment? People are not eligible
for payment if they are eligible for compensation after making a civil
claim. That is fair, but what happens if a civil claim takes too long
to process, or if someone appeals against the decision? As we know,
people can die very quickly from mesothelioma. Can we introduce a
system whereby they receive a payment under the Bill while they await
the outcome of civil
litigation?
Andrew
Selous:
I have rather more sympathy for amendment No. 147
than for amendment No. 148, although I accept what the hon. Member for
Rochdale was aiming to achieve. Amendment No. 147 is sensible, because
it appears from clause 42(2)(a) that a dependant could lose out if
another dependant, the deceased, or the deceased’s personal
representative has received a payment. I hope that the Minister can
clarify the
position.
Mrs.
McGuire:
I encourage the hon. Gentleman to rephrase his
last sentence, as I am not sure that I understand the point that he is
making.
Andrew
Selous:
I may have misread subsection (2)(a), but I think
that the hon. Member for Rochdale is on to something. As he and I
understand subsection (2)(a), a dependant could lose out if another
dependant, the deceased or the deceased’s personal
representative has been paid. They would not receive payment, and I do
not believe that that is the intention of this part of the Bill. On
page 55 of the explanatory notes, there is a list of dependants who can
claim, which the Minister read out in a previous debate. It
gives categories of dependants, including children under 16, children
under 21, and children of any age. It makes it clear that the provision
applies to more than one dependant. However, a literal interpretation
of subsection (2)(a) suggests that other dependants could lose
out.
The
Chairman:
Order. Nesting interventions are not yet allowed
in
Parliament.
Andrew
Selous:
I have finished my
intervention.
Mrs.
McGuire:
My apologies, Mr. Taylor—I
caused that difficulty. If the hon. Member for Angus wants to intervene
on me, I would be delighted to give way to
him.
Mr.
Weir:
I apologise for the confusion. I am slightly
puzzled, because the purpose of subsection (2)(a) is to prevent double
payment, if somebody has already received compensation for their
condition. I am confused about the purpose of the amendment, and I hope
that it can be
clarified.
Mrs.
McGuire:
In other circumstances, I would invite the hon.
Gentleman to cross the Floor, because he has fully understood the
intention behind this part of the Bill. I thank the hon. Member for
Rochdale for raising the issue in his amendment, but I want to make it
very clear that it is our intention to pay one lump-sum payment, and to
do so quickly. It is not the intention to make more than one lump-sum
payment to a family, as we would be compensating the same family more
than once. As the hon. Member for Angus said, it would duplicate
compensation. I said earlier that the scheme is self-financing. If we
make more than one payment to families, maintaining the scheme will be
difficult
financially.
Mr.
Clapham:
If I interpret the question correctly, the
situation is as follows: if a person exposed to asbestos in the
workplace brought it home on his clothes and developed a disease, he
would receive a payment, and if a person in his household later
developed a disease, they would be able to claim a payment, because it
would be a separate case. Is that how the Minister sees
it?
Mrs.
McGuire:
That is exactly what I was going to say. We are
in danger of arguing about how many angels can dance on the head of
this particular pin. Obviously, there is a relationship between
claimants and dependants, but as my hon. Friend said, a dependant could
also make an independent claim in their own right for contracting
mesothelioma. They would therefore have the right to pursue
compensation over and above their right as a dependant.
I am still at something of a
loss to understand how the hon. Member for South-West
Bedfordshire interprets this clause. He misinterprets our intention,
which is primarily to pay compensation quickly to families, individuals
and their dependants, recognising, as my hon. Friend said, that there
can be more than one independent claim in a family. Our wording is
clear enough to deal with the issue, and I hope that the hon. Member
for Rochdale will withdraw his
amendment.
Paul
Rowen:
I am grateful for the Minister’s
reassurance. She has provided the clarification that I was seeking, and
confirmed that someone with a separate incidence of mesothelioma will
not be debarred if they have already received payment as a dependant.
That is helpful, so I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 144, in clause 42, page 37, line 18, leave out from
‘that’ to end of line 19 and insert
‘such requirement, if any, as may
be prescribed by regulations as to the deceased’s connection
with the United Kingdom is
satisfied’.—[Mrs. McGuire.]
Clause 42, as amended,
ordered to stand part of the
Bill.
Clauses
43 and 44
ordered to stand part of the
Bill.
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