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23 Jan 2008 : Column 476WH—continued

What we have seen in the last few years is a very successful campaign on behalf of those exposed to asbestos and dust. One has only to look at the measures that have been introduced, including the Pneumoconiosis (Workers’ Compensation) Act 1979, the action that has been taken to assist mesothelioma sufferers, the Compensation Act 2006, which stipulated that negligent companies had to be jointly and severally liable, and part 4 of the Child Maintenance and Other Payments Bill, which is going through Parliament now. We also have the Civil Procedure Rule Committee, which is examining a new practice direction to ensure a uniform
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fast-track system for all mesothelioma cases. So there has been impressive progress and indeed there is a great deal of public support for sufferers of any form of industrially caused lung-related illness.

Among the 1980 cases was Patterson v.MOD, in which the key finding was the theory of aggregation, which did not accept that plaques themselves could give rise to a claim, but when they were aggregated with risk and anxiety that could create an actual case. Indeed, the hon. Member for Rochdale (Paul Rowen) pointed out that many cases were settled, but not at high cost. We are talking about many cases settling at £4,000 or £5,000, up to about £10,000 or £15,000, so they did not cost the insurance industry a great deal of money.

On the other hand, we are talking about one of the most vulnerable groups of people in the country and those small amounts of compensation were actually bringing some relief to people at a time of great distress. It is very unfortunate indeed that we had a situation in place—we had a status quo, as the right hon. Member for Makerfield (Mr. McCartney) pointed out—that met with approval and satisfaction yet the insurance companies decided to take the test case to the House of Lords. However, the hon. Member for Cambridge (David Howarth)—my legal adviser from the Liberal Democrats—tells me that the law was, in fact, changed in another case and that the insurance companies had to take this test case.

So we had the two cases, Johnston v. NEI International Combustion and Rothwell v. Chemical and Insulating Company, and the conjoined cases. There certainly was a very substantial cost in bringing these cases and it is a great pity that they were brought. I was not surprised at the outcome when I saw all the evidence. Nevertheless, I was very disappointed indeed. I did not sit through the House of Lords case. I did not hear all the evidence, and I do not think that any of us did. However, when we had a system that was working perfectly well and we see that system turned upside down, it is indeed most unfortunate.

The only good thing that came out of all of these cases is that a great deal of medical expertise is now on the record. However, that medical expertise, it has to be said, is divided. In fact, a number of hon. Members—I think that among them were the hon. Member for Barnsley, West and Penistone (Mr. Clapham), the right hon. Member for Leeds, West (John Battle) and the hon. Member for Jarrow (Mr. Hepburn)—pointed out that there are medical experts who say that pleural plaques are not common. Those experts include Professor Mark Britton and Professor Tony Newman-Taylor, who are two of the most pre-eminent chest physicians in the land and world-renowned experts on lung diseases, and they both confirmed that pleural plaques were not prevalent in the general male population and were an indicator of asbestos exposure. In other words, one cannot develop pleural plaques through passive action, or as the result of smoking or other activities.

However, there are other experts, for example Dr. John Moore Gillan, who is president of the British Lung Foundation, and Dr. Robin Rudd, who is a leading consultant, who are adamant that pleural plaques do not themselves form any malignant problems and do not themselves cause asbestosis to develop.


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I would suggest to the Minister that we have a great deal of medical opinion out there, but it is divided opinion, and there is a need for a wider inquiry. May I suggest to her that she either sets up a royal commission on this subject or tasks the Industrial Injuries Advisory Council to examine the evidence urgently? She should also look at setting up a proper register of medical evidence. There is a great deal of evidence out there and indeed there is a large amount of factual evidence that can be pulled together, but it is not being pulled together in any worthwhile shape. It would be very helpful to have that information brought together.

I have to say that I was disappointed at the attitude of the Association of British Insurers. In its briefing to hon. Members, it said:

I do not accept that argument at all. We need more evidence and we need to have all of the facts properly recorded and when we achieve that, we will be well on the way to mounting a stronger case.

There is another point that I would like to make that flows from the opinions of the medical experts who have been commenting on this issue. They conclude that 1 per cent. of people suffering from pleural plaques suffer some form of inconvenience, pain or constant irritation; whether or not that suffering leads to anything more serious, those people experience that suffering anyway.

Of course, I dare say that sufferers would be able to mount a legal challenge anyway, but why should they, when the Child Maintenance and Other Payments Bill, which is going through Parliament, will help those people with mesothelioma? Would it not be possible to amend that Bill so that 1 per cent. of people suffering from pleural plaques could be immediately eligible for some form of compensation? That is an issue that the Minister should examine carefully, and it stems from a debate that took place on 3 December 2007.

One point that the Government will have to examine very carefully is what is happening in the Scottish Parliament. If the Scottish Parliament legislates successfully on this issue we could end up with some ridiculous anomalies. For example, we could have a company that has plants both sides of the border, with employees moving from plant to plant. Those resident in Scotland would be able to take action and mount a civil case, but those living south of the border would have no hope of doing so. Another example would be if someone was working for a Government Department, such as the MOD, with facilities both sides of the border. Again, people may be posted to different sites and different rules would apply for Scottish citizens than for people who are resident south of the border. I foresee significant problems. The Government need to tell us what contingency plans they have put in place and how they plan to address the problem. If legislation is enacted north of the border that puts residents of Scotland in an advantageous position, it will lead to even more anger in England, Wales and Northern Ireland.

We have had a passionate debate, and I congratulate hon. Members on proposing it and on the way in which they put forward their arguments. We are talking about a very tough decision. A retrograde step has been taken
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and the status quo, which was working perfectly well, has been turned upside down. We need more information; we need that register and an urgent independent inquiry or commission to look into it. Furthermore, the Government must act, in another place, on the Child Maintenance and Other Payments Bill, which is being considered. If they take those steps, the Opposition will certainly support them.

4.1 pm

The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): Like the hon. Member for North-West Norfolk (Mr. Bellingham), I congratulate my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan) on securing this debate. This has been one of the most passionate and committed debates that I have listened to anywhere in Parliament. No one could leave the Chamber today in any doubt about the strength and depth of the feeling on this matter. The representations made by my hon. Friends, particularly on behalf of their constituents, were passionate, heartfelt and sincere, for which I thank them. Their arguments were incredibly persuasive. Having said that, my hon. Friend will know that I set out the Government’s position on this matter, on 29 October last year, in response to his written parliamentary question. We considered in great detail the judgment on the Rothwell case, at which point we decided that it would not be appropriate to legislate.

I shall provide some background to that case, then respond to the specific matters that were raised. I hardly need to explain what pleural plaques are. They are small, localised areas of fibrosis caused by exposure to asbestos. They do not normally cause any significant symptoms, although they might indicate a slightly increased risk of developing an asbestos-related disease. I understand that that figure is closer to the 5 per cent. mentioned by some of my hon. Friends, rather than the far less significant 1 per cent. suggested by the ABI and others.

As has been said, over the past 20 years, it has been possible to sue for negligent exposure to asbestos leading to the presence of pleural plaques. Compensation was based on High Court decisions in the early 1980s. However, as the hon. Member for Cambridge (David Howarth) explained, a test case finally reached the House of Lords to establish the exact situation. Earlier High Court decisions were not challenged, so the question of whether it was legally right that those pleural plaques should be compensatable never reached the consideration of the Court of Appeal or the House of Lords.

The problems began when the Rothwell case was finally brought to the House of Lords, which considered the case very thoroughly. As the hon. Member for North-West Norfolk said, the Lords had access to detailed medical information that we do not have, and reached a unanimous decision that upheld the earlier decision of the Court of Appeal, which was that pleural plaque does not constitute actionable or compensatable damage. As has been explained, however, it also confirmed that if someone with pleural plaques develops a recognised future condition, such as mesothelioma, they would have a claim in relation to that disease.

The House of Lords decision was based on two fundamental principles of the law of negligence: first, that compensation in relation to negligence is payable only if there is actionable damage; and, secondly, that
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compensation is not payable simply for the risk or the worry that something might happen in the future. The hon. Member for Cambridge developed the point in relation to the Law Commission’s proposed reforms of the legislation on psychiatric illness, which, as he explained, have been on the table for some time. The Chamber might like to know that the Government have undertaken a consultation exercise on the Law Commission’s proposals and that those responses are being analysed. We hope to publish our response in due course. We have not forgotten about it; it is being dealt with.

Mr. David Anderson: Does the Minister agree with the insurance industry, which advised doctors that the best way to avoid pleural plaques becoming a stress-related matter is not to tell the patient that they are suffering from them?

Bridget Prentice: Any doctor told to behave in such a way would rightly stick to their professional and principled position on the treatment of their patients. It is grossly irresponsible to suggest that doctors should not tell patients what illness or disease they have, nor explain in detail the consequences. It is disappointing that the insurance industry even thought to suggest such a thing. I am worried that, as a result of the House of Lords decision, the insurance industry may now question people diagnosed with pleural plaques about their liability. I have even asked for information on that. I am very concerned that the insurance industry may increase people’s insurance payments, in the light of the position taken by the House of Lords, and I would like an investigation into that to ensure that it does not go down that road.

A number of hon. Members have mentioned the situation in Scotland. The hon. Member for North-West Norfolk is absolutely right; if the Scottish Executive act on their announcement after the House of Lords decision, it would make things very complicated. We have asked for information from the Scottish Executive about progress on the matter, and I am afraid to tell my hon. Friends that silence was the great reply. We have not heard much about what progress, if any, they have made.

In many respects, Scottish law is very different from the law in England. The hon. Gentleman asked about people living in England, but working in Scotland, and about Scots living in Scotland, but working in England, who have pleural plaques. Because the law in England says that there is no compensation, they will not achieve what they think they might achieve. The issue is very complicated, but we will watch it with interest, and if the Scottish Parliament finds a way of dealing with it, we will examine that very carefully. I agree that it would be unacceptable in such a situation for people in one part of the United Kingdom to receive compensation and others in another part not to do so. That would be inequitable.

Mr. Hepburn: Why are we waiting for the actions of the Scottish Parliament before we act? Why does Parliament not take the lead, do something about it, and let the Scottish Parliament follow us?

Bridget Prentice: Because we have accepted the House of Lords decision and we do not think it would be appropriate to legislate. In conversations with hon.
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Friends who have raised the issue and campaigned on it, including my hon. Friends the Members for Paisley and Renfrewshire, North and for Barnsley, West and Penistone (Mr. Clapham), we considered the idea of a register, which the hon. Member for North-West Norfolk mentioned. However, from discussions with the TUC, the Association of Personal Injury Lawyers and others, it does not appear that a register is appropriate. I understand the commitment and passion shown by hon. Members and the campaigning that they have undertaken, and it would be inappropriate for me to close the door on further discussions about what else might be achievable. I need to involve colleagues from other Departments that would be directly affected by any change in the law, if any were to be made. However, the Government’s current view is that a change in the legislation is not appropriate; it would change the law of negligence so fundamentally that it would not be an appropriate process.

I accept what my hon. Friends said about the issues, and if, as the hon. Member for North-West Norfolk said, for example, the Industrial Injury Advisory Council considered the issue in more detail and decided where pleural plaques should be placed in the definitions of industrial injury, we might be able to reconsider our position. I make a commitment to my hon. Friends that the door is not entirely closed. It does not seem appropriate currently to legislate, but I shall return to the Department and examine whether there is a way of reviewing the industrial injuries process to determine whether action would be appropriate. People were compensated with relatively small amounts of money, and the House of Lords decision, having overturned that decision, has made life more difficult for others.

Jim Sheridan: If the Minister is going back to speak to her officials and take some advice about the issue, will she also consider taking some independent advice, particularly from the trade unions and their legal representatives?

Bridget Prentice: My hon. Friend knows that I have met, and we will to continue to meet, the trade unions about that and other issues in this area to ensure that we get the situation right. The trade unions have been very open with us, as we have been with them, about the right way forward.

I understand the passion and commitment that my hon. Friends have brought to the debate, and I have deep sympathy with them and their constituents. However, it is not appropriate to overturn the House of Lords judgment, given that it was unanimous and given that the matter was dealt with in that manner. Nevertheless, I am more than happy to continue to hold discussions with my hon. Friends to determine whether there is a way in which we can help and support people such as their constituents, who have been suffering as a result of industrial injuries and pleural plaques.


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UK Bird Registration Scheme

4.14 pm

Martin Salter (Reading, West) (Lab): I was delighted to succeed first time in securing this Adjournment debate on the future of the UK bird registration scheme, which was introduced under the Wildlife and Countryside Act 1981. The scheme, which is held in high regard by conservationists in general, and by the Royal Society for the Protection of Birds in particular, has acted as an effective deterrent to nest robbers and people who wish to profit from the illegal taking of birds in the wild. However, its future has been put in doubt by moves within the Department for Environment, Food and Rural Affairs to deregulate section 7 of the Act as part of a Treasury initiative to move to full cost recovery on all registration schemes. I, the RSPB and hon. Members from all parties sincerely hope that the Minister will resist it.

It was somewhat remiss of me not to have congratulated my hon. Friend the Minister on her long overdue promotion to Government ranks. She is a close colleague of mine, and we worked together until recently on Labour’s parliamentary committee. She is a passionate conservationist, a politician of substance and not the sort of Minister who will be pushed around by mere accountants in the Treasury. I have no doubt about it. That should have sealed it, anyway.

On the substance of the debate, I shall set out the case for retaining schedule 4 to the 1981 Act, which provides for the bird registration scheme, and I shall challenge the arguments for deregulation. The Minister knows that any good public policy must be based on evidence, and I shall highlight some of the evidence that she has already received from the RSPB, the Joint Nature Conservation Committee and the majority of the countryside agencies.

DEFRA argues that taking schedule 4 birds from the wild poses no conservation threat to the species concerned, and that the national wildlife crime unit has not identified it as a priority, although I must say that that statement has been taken out of context. The argument misses the point about registration, which is, in combination with DNA testing, a tried and tested method of deterring criminal activity, and a major wildlife crime enforcement success story.

Mrs. Madeleine Moon (Bridgend) (Lab): Does my hon. Friend agree that if the wildlife crime unit is to mount a successful prosecution, it needs to know where birds should be and to whom they should be registered? It does not matter whether it has DNA, because all that proves is the lineage of the bird. It cannot prove where, and in whose care, the bird should be.

Martin Salter: My hon. Friend has considerable experience of the issue, and she is absolutely right. I shall tease out that point later—a point that the police have made in their response to the consultation.


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