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23 Jan 2008 : Column 470WH—continued

3.13 pm

Mr. David Anderson (Blaydon) (Lab): I congratulate my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan) not only on securing this debate, but on his track record of defending working-class people’s rights since he first came to the House. People ask me why people such as my hon. Friend and I came to the Houses of Parliament, and the answer is because of such issues. If people such as us, who know the reality of working with things such as asbestos, did not stand up for those who have been exposed to them, their voice would not be heard in this place to the extent that it should be.

Last year, I was proud to be involved in the discussions on reversing the Lords’ decision on mesothelioma. It was a great moment for our party, our movement and our Government when we reversed that decision, because it was the right thing to do. Today, we should be celebrating last night’s announcement by the National Institute for Health and Clinical Excellence that it has finally thrown out all the appeals by those who wanted to stop the use of Alimta, which would increase a little the length and quality of the lives of those suffering from mesothelioma. But what are we doing? We are standing here talking about a disgraceful situation that has been brought about over more than a century.

As I said in my intervention earlier, people first said that asbestos was dangerous in 1892, but it took 70 years to make it formally illegal. What happened then? People kept on using it. We are discussing employers who have such scant belief in the sanctity of life that they use little kids to maximise profits in places such as Namibia. They put them inside giant plastic bags to stamp down the raw asbestos, so that more will go into the bags. If that does not show the kind of people we are dealing with, what does?

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Thompsons solicitors told me about discussions that it had with civil servants in the Department about the impact of pleural plaques. Thompsons was told, “What are you worried about? It’s no more than freckles.” Well, the people whose lungs have been scarred think that pleural plaques are slightly more than freckles.

Mr. Flello: Like other colleagues, I am listening with great interest to my hon. Friend’s speech. Will he join me in pausing for a second to think what it must be like for people not only to know what mesothelioma does, but to live day in, day out with the knowledge that there is a good chance that they may develop it because of their pleural plaques? It must be horrendous to wake up with that thought every morning. Does my hon. Friend agree?

Mr. Anderson: I could not agree more. I was actually coming on to the great disservice that the insurance industry and the employers have done us by peddling the idea that stress does not matter. In their view, people who think that they have the disease should not worry; indeed, they think that people’s doctors should not even tell them about it, and it is absolutely disgraceful that they could even consider that. The insurers say that the stress does not matter, but perhaps they are really worried that people will take them to court over the impact of stress.

In the late 1990s, after years of battling my trade union, Unison, the insurers had to give in and award £187,000 to a social worker who had been stressed out by work. Perhaps that is what the debate is really about; perhaps the insurers are worried not about people with scars on the inside or outside of their bodies, but about the people who are really suffering. I am a patron of an organisation that supports mesothelioma sufferers, so I know what individuals are going through and I do not need to imagine it. I meet such people regularly, and I know that none of us would ever want to be in their position. It is on our backs that we do something about this.

The ABI brief has been mentioned. Referring to the Lords judgment, it says that the

If I got a letter in the post tomorrow morning saying, “Mr. Anderson, you have pleural plaques,” I do not think that I would be jumping up and down saying that it was good news. If that happened, I could become one of the 90,000 people who will die in the next 13 years as a direct result of being criminally exposed to a dangerous substance. It therefore behoves our Government to do everything in their power to put that injustice right.

3.18 pm

Mr. Ian McCartney (Makerfield) (Lab): Like my colleagues, I thank my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan) and congratulate him—if that is the appropriate word in such a debate—on his work on this and other issues.

My hon. Friend and I come from a similar area, and as teenagers and young men, we saw family after family suffer the consequences of having done what they were asked to do by working hard for their country and their
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company. Subsequently, because of latent industrial diseases, the trade union movement has spent 45 or 50 years fighting for recognition of what has happened as a result of industrial processes. People who have worked hard and contributed have been damaged as a result, but there has never been a general acceptance of the fact that they should receive financial, social and medical recognition for the effects of their contribution.

The most recent judgment is the latest in a long line of judgments since 1924. There has been a failure to accept and recognise that exposure to asbestos and mesothelioma are deadly. The first case was reported to the British Medical Journal in 1924 by Dr. Cooke from the Wigan Royal Albert Edward infirmary. The lady concerned, Mrs. Kershaw, worked in a weaving shed in the constituency of the hon. Member for Rochdale (Paul Rowen). He was the first doctor to say, “This woman has died not of tuberculosis but of fibrosis caused by her exposure to asbestos dust.” Yet from that moment it has been a struggle to get where we have.

The present situation is incredible. Despite what I have described, I never thought that I should be asking in the House of Commons to have something back that had already been conceded. We are not asking for something new to be recognised. There has already been medical recognition, state recognition—by way of benefit payments—and recognition towards compensation. My worry is what will happen if we do not win this case and find a mechanism, as we have in the past.

In 1998, my right hon. Friend the Member for Leeds, West (John Battle) was the Minister for Energy, and he found a mechanism to upgrade the payments relationship for pneumoconiosis sufferers. We found a mechanism to deal with issues such as bronchitis and emphysema that has resulted in the biggest payouts on injury benefits that the world has ever seen, and the House found a legislative mechanism, as my hon. Friend the Member for Ashton-under-Lyne (David Heyes) mentioned, to deal with a recent perverse judgment by the Law Lords.

Perhaps we can find a mechanism to correct the decision that we are now discussing. If we do not, there will be debates here for the next 10 years arising from this judgment’s use in other areas, against other claimants with other injuries. Let us think of the progress that has been made on stress-related injuries in Britain since Unison, the National Union of Public Employees and others took on that cause. It has become accepted as fact that there are certain circumstances in which, if employers do not act in their employees’ interest, they will suffer damages because of stress. That is an accepted concept, but the Law Lords have gone out of their way to state in the judgement that, unless a physical injury is associated with the stress, no claim can be met. What does that mean for public sector workers who attend accidents every day and suffer trauma and stress? They have no physical illness, but there has been the capacity for more than a decade to compensate those workers for the stressful job that they do.

I am not a lawyer—I do not want to give the impression that I am—but lawyers and others have the unending capacity to take one decision and link it to other potential decisions. Therefore, what has been decided is important not only to the sufferers; it should make us recognise the importance of retaining what we have won. We must retain it: there are no grounds for not finding a mechanism.

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I know that the Minister will want to respond, and I have one final point. If the Law Lords’ judgment is read in a common-sense way, it suggests that the plaques do not occur naturally in the body, but are caused by an industrial process, which the law recognises in judgments as a failure by the employer to protect the interest of the employee. What is missing is a common-sense judgment. The Law Lords have taken common sense out of the way they have dealt with it. They have cited, as the ABI has, the figure of 1 per cent. The figure of 1 to 5 per cent. is not relevant: what is relevant in the cohort is that 100 per cent. have plaques. However, it cannot be judged who, within the cohort, will go on to contract a debilitating disease that will kill within 18 months of diagnosis. So all must suffer 100 per cent., to the point when the disease transforms from a plaque into a cancerous fibre, followed by death. That is why the Law Lords’ approach is not a common-sense one.

We must put common sense back into the law, but in putting it back, we must put back something else. The courts have already recognised that negligence led to the disease. The state gave recognition, in relation to payments, and there was recognition through previous court judgments that the insurance industry had a liability to meet, which it was meeting. On that basis, taking a common-sense view—difficult as it is for the state to meet every claim in every circumstance—we should go back and deal with the cases that have been left in limbo and accept that the diseases have been caused by workers doing the one simple thing that they have been asked to do: work hard and look after their home community.

Those communities are devastated. Not every community in Britain faces the same circumstances. Those affected are from shipyard and mining communities. They are textile workers and those who worked in industries making products for other industries or who travelled around in the construction industry, building up our capacity to power our houses, shops and commercial enterprises. That generation is now suffering. The debate is an opportunity for us: if the Minister cannot respond as we would like her to do now, I hope that she will leave the door open for further discussions towards a solution, because a solution must be found.

3.25 pm

David Howarth (Cambridge) (LD): I, too, congratulate the hon. Member for Paisley and Renfrewshire, North (Jim Sheridan) on obtaining the debate. The two most important points that have come out of it for me are, first, the fact that as a result of corporate manoeuvring people with a valid claim might be removed from circumstances in which they can make their claim good and, secondly, the point that several hon. Members have made about stress at work. The danger in the House of Lords judgment in the pleural plaques case arises largely at the point at which it becomes a discussion of psychiatric illness. That point came up in part in the debate, but it has not been discussed enough, so I want to spend some time on it.

I do not agree with those hon. Members who said that the judgment was perverse. I have studied this area of the law for 30 years. It was an entirely orthodox judgment of the House of Lords. The conclusions that were reached, except with respect to psychiatric injury,
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were entirely in line with what one would expect the Lords to say. It was orthodox, first, because it has not been possible to sue for anxiety since the 1860s. People can sue for psychiatric illness but not for anxiety. It would be a major departure in the law to allow people to sue for anxiety, although some people have argued for it. People cannot sue for future risks unless something has already happened to them—some symptoms have already started. That was a decision that the House of Lords took in 2005, after a lot of debate, in which there was, again, argument on either side, but, nevertheless in the light of what was decided in the Gregg case it is not unexpected that the House of Lords came down where it did.

On the point about there being no symptoms yet—there is internal scarring but no symptoms—the decision is, again, not unexpected. There is difficulty in measuring the loss until someone actually suffers from something. I should stress at this point that the House of Lords decision does not apply to people who have symptoms. The battle in the pleural plaques cases is not yet lost, for two reasons: first, the decision binds only on the law, not on the facts, and if new medical evidence emerges or new medical expert views are accepted, that will change the entire thing; and secondly, even on the law, the House of Lords left open the possibility of suing in contract rather than just in the law of tort. Lawyers are therefore not giving up on such cases at this stage.

The next point that I want to make is one made by the right hon. Member for Leeds, West (John Battle). Victims must wait until their symptoms start to develop. The problem with that is that by the time it happens many of the defendant companies will no longer exist, either because of the normal processes of commercial operation—they just go out of business—or, as the right hon. Gentleman pointed out, because they have figured out some corporate manoeuvre that lands all the liabilities on a corporate entity with no assets. We must take action to make sure that that does not happen. The idea of a fund into which defendant companies must pay, effectively insuring the victims against the insolvency of those companies, is one that the Government should take seriously.

I should like to make a point about psychiatric illness and the case of Mr. Grieves. Mr. Grieves was different from the other plaintiffs in the House of Lords case, because he had developed a recognised psychiatric illness—clinical depression—as a result of being told about his plaques. Psychiatric illness is different from general anxiety; it is a specific illness, and Mr. Grieves suffers from it, but, in addition, he was denied compensation. There have been unjust decisions on psychiatric illness for a long time—we could go back, for example, to the Hillsborough cases. That part of the law has become immensely complicated and, in my view, immensely wrong-headed. The Law Commission proposed reform as long ago as 1997. It said that judges should be given a chance to sort out parts of the law themselves, but they have not done so and the law has become more complicated and incomprehensible.

The two reasons given by the House of Lords as to why Mr. Grieves could not sue are wrong, and they are incompatible with modern views of mental illness. The first reason why the House of Lords decided that Mr. Grieves could not sue is that he was not a man of ordinary fortitude; in other words, he was more susceptible
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to mental illness than the average run of humanity. However, that is not an excuse in ordinary law. If the victim of an accident has brittle bone disease, the person who caused the accident would still have to pay out, and would be unable to say that the victim was not of ordinary strength. I do not think that the position should be different in mental illness cases.

In addition, the reason given by the House of Lords is based on a wholly wrong idea of the incidence of mental illness and the likelihood that a person will suffer from it. Between one in four and one in six people in this country suffer mental illness at some point in their lives—it is not unusual, so it is wrong to say that employers could not reasonably foresee mental illness. That idea is completely out of date, and it implies that Mr. Grieves was responsible for his own illness, which is not right.

That brings me to the second reason why Mr. Grieves was denied compensation. He was denied it on the basis of an argument that I believe is quite wrong, namely, that the real cause of his mental illness was being told by the doctor that he had plaques. That supposes that his mental illness resulted not from his exposure to asbestos by a negligent employer, but because the doctor told him the result of that exposure. That is not a good argument for not compensating him, as it is not wrong for doctors to tell people that they have pleural plaques.

John Battle: I am grateful to the hon. Gentleman for applying his legal expertise to the issue. I am trying to follow his argument carefully, but there is a crucial causal difference. Someone referred to freckles. A person could say that they have freckles because they were exposed to the sun. They might worry about their freckles turning into cancer and become anxious. The difference with plaques is that we know that the cause is asbestos, which is a banned substance, as we know that it is deadly. Without that root cause, there would be no reason to be worried, which is why the judgment is wrong.

David Howarth: Someone with plaques knows that they run a much higher risk of developing mesothelioma than the general run of the population—hon. Members were quite right to say that we are talking about a 5 per cent. risk rather than a 1 per cent. risk—so people who are told that they have plaques have a serious problem. They are told that their problem is a consequence of breathing in asbestos, to which they were exposed as a result of their employers’ negligence, so it is a different sort of case.

The argument that “the doctor did it” is not right but, according to some of the judges, that was why Mr. Grieves should be denied compensation. That argument was wrong. For 10 years, the Government have had on their desks a Law Commission document about the reform of the law on psychiatric illnesses. We need a reform of the law that takes into account what we now know about mental illnesses.

Mr. McGovern: I am intrigued by the legal case that the hon. Gentleman is putting forward. I would never pretend to be a lawyer—I am aware of the saying that if one puts two lawyers in a room, three legal opinions will come out—but I am here as a legislator. If the hon. Gentleman believes that the Law Lords applied the law in an orthodox and correct way, should we as legislators not simply change the law?

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David Howarth: I am saying that the orthodox parts of the decision have some long-standing reasoning behind them, but the decision on psychiatric illness is the latest in a long line of decisions that make no sense. Most people involved in the law know that that part of the law does not make any sense. The Government have had a Law Commission report for 10 years, and there is no doubt that legislative intervention on the law on psychiatric illness is not only required, but is being asked for by lawyers.

The law on psychiatric illness ought therefore to be reformed. Moreover, to take up the point made by the right hon. Member for Leeds, West, there must be a way of preventing employers from escaping their responsibilities by delay and corporate manoeuvre. It is a question of justice, but it is also a question of efficiency. The companies have imposed on the world costs that they have not paid for. Efficiency and justice demand that they pay.

3.35 pm

Mr. Henry Bellingham (North-West Norfolk) (Con): We have had a passionate debate. I congratulate the hon. Member for Paisley and Renfrewshire, North (Jim Sheridan) on the way in which he presented his case. He has an impressive and proud record of campaigning on this and many other issues. I remember well the help he gave me some years ago when we had a major gangmaster problem in East Anglia. He brought forward a Bill on gangmasters, which had a profound impact on the problem.

This issue affects people in many parts of the country. Obviously, it affects the former industrial heartlands above all, but it has an impact on every constituency in the land. Indeed, my constituents in north-west Norfolk, which is a long way from those heavy industrial heartlands, have sent me letters on the issue. People who have retired to my area have written to tell me that they are very concerned about the House of Lords’ decision.

3.36 pm

Sitting suspended for a Division in the House.

3.52 pm

On resuming—

Mr. Bellingham: I was just about to say, before the Division bell went off, that I have recently received a letter from Mr. Legg, who is president of the Swansea boilermakers society. There is obviously a major campaign developing. I believe that Mr.Legg is actually a constituent of yours, Mr. Caton, so you will be well aware of the pressures that are building up. In fact, all MPs now know of cases in their own constituencies.

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