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Mrs. Spelman: That is much clearer to me now. That aspect—the fine point about the competence of the person empowered to choose—needs to be debated in
24 Apr 2009 : Column 527
Committee. We need to discuss the point at which responsibility transfers to a named family member, a relative, the spouse or the next of kin.

A number of hon. Members have made points, which it is right for the House of Commons to debate, about where society has travelled to in coping with death, and about the impact on the extent of medical intervention at the end of life. There are qualitative judgments to be made. Obviously, such judgments should be informed by the medical profession, but we also need to weigh in the balance the quality of life that ensues following further and further interventions. We all understand that that issue needs to be addressed.

I particularly thank my hon. Friend the Member for Eddisbury (Mr. O’Brien), who raised the important point that my Bill would enable children to receive their palliative care at home. It is one thing for an adult to have enough understanding to appreciate what it might mean to be admitted to hospital for one’s last days, but such maturity is often lacking in a child, who may have had very little experience of a hospital setting and may fear a setting with which they are not familiar. The opportunity to provide more palliative care for a child in a familiar domestic setting is very precious indeed.

I listened carefully to the Minister, who was very kind in her remarks about the aims and objectives of my Bill. I appreciate that, but we shall have to differ on the question whether there is a need for my Bill. I heard all she had to say about the end-of-life care strategy, but it is just that—a strategy. It is not yet delivery. It is work in progress, and I am firmly of the view that the Bill would increase the likelihood that real progress is achieved. For that reason I hope the Bill will proceed to Committee.

Question put, That the Bill be now read a Second time.

The House divided: Ayes 13, Noes 26.
Division No. 99]
[1.21 pm


Bottomley, Peter
Brokenshire, James
Davies, Mr. Dai
Evans, Mr. Nigel
Harper, Mr. Mark
Jackson, Mr. Stewart
Laing, Mrs. Eleanor
Letwin, rh Mr. Oliver
O'Brien, Mr. Stephen
Pelling, Mr. Andrew
Pugh, Dr. John
Spelman, Mrs. Caroline
Wright, Jeremy
Tellers for the Ayes:

Mr. Andrew Robathan and
Michael Fabricant

Ainsworth, rh Mr. Bob
Barlow, Ms Celia
Beckett, rh Margaret
Brown, rh Mr. Nicholas
Byrne, rh Mr. Liam
Campbell, Mr. Alan
Clapham, Mr. Michael
Dismore, Mr. Andrew
Gilroy, Linda
Hanson, rh Mr. David
Hill, rh Keith
Hughes, rh Beverley
Irranca-Davies, Huw
Lammy, rh Mr. David
Lloyd, Tony
Mactaggart, Fiona
Michael, rh Alun
Munn, Meg
O'Brien, Mr. Mike
Pound, Stephen
Prescott, rh Mr. John
Primarolo, rh Dawn
Shaw, Jonathan
Spellar, rh Mr. John
Sutcliffe, Mr. Gerry
Wicks, rh Malcolm
Tellers for the Noes:

Chris Mole and
Barbara Keeley
Question accordingly negatived.
24 Apr 2009 : Column 528

Damages (Asbestos-Related Conditions) Bill

Second Reading

1.32 pm

Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be now read a Second time.

Most people in the House know that for 20 years before I entered Parliament, I was a personal injury lawyer; I suppose that I still am—once a lawyer always a lawyer. I still have my practice certificate and remain a consultant with my firm, although I do not take on any cases. It would be impossible to do that job as well as this one, but I have maintained a keen interest in the development of this area of law. During the course of my practice, I have represented many sufferers of various asbestos-related illnesses and diseases, but the Bill is narrowly drawn, as it is designed to deal with pleural plaques.

Pleural plaques are a thickening of the lining of the lung, which is usually visible on an X-ray or a CT scan, and they are caused by exposure to asbestos. They represent an increased risk—between 5 and 10 per cent.—of more serious asbestos-related diseases, and, because of that, pleural plaques cause real anxiety and stress for those who have them. It is hard to imagine someone’s fear if they are at risk of developing an evil, disabling illness such as mesothelioma, which is painful and always fatal. During the course of my practice and, indeed, my time in the House, I have met many pleural plaques sufferers who have expressed to me their strong feelings about the issue and the problems that have recently arisen because of a decision in the courts.

Until recently, pleural plaques were compensated at common law. Since 1984, there have been three cases against the Ministry of Defence, the leading one being Church v. Ministry of Defence. With a diagnosis of asbestos-related pleural plaques, or asymptomatic fibrosis on the pleural lining of the lungs as it is described in the cases, it was decided in Church v. Ministry of Defence that the condition constituted an injury, enabling damages to be claimed. The amount of compensation has varied over the years, but on a provisional basis the rate until recently was probably about £4,000, although at times it has been as high as £7,000.

In the 2006 case of Rothwell v. Chemical and Insulating Company Ltd, the Court of Appeal found that pleural plaques are not compensatable, mainly on public policy grounds. The Court refused to aggregate the condition of pleural plaques with the anxiety and distress that they cause, deciding that each individual condition is not compensatable and that courts cannot look at the aggregate of both pleural plaques and the psychological conditions that they cause. In autumn 2007, that decision was upheld by the House of Lords in a case called Johnston v. NEI International Combustion Ltd; in fact, it was the same as the Rothwell case, because a number of cases had been consolidated and the appeals were linked. The House of Lords upheld the Court of Appeal decision that pleural plaques are not compensatable, which has been a cause of concern in the wider community and the House ever since. There have been numerous parliamentary questions, early-day motions, amendments to Government Bills and pieces of private Members’ legislation, and I do not know how many Adjournment debates the issue has been raised in.

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At Prime Minister’s questions on 12 March last year, the Prime Minister announced that there would be a consultation on how to resolve the issue. That was followed on 9 July by a written statement with the consultation, which ended on 1 October 2008. We are still awaiting the outcome of the consultation, which included three different options: a no-fault payments scheme, presumably funded by the taxpayer, only for historic cases prior to the House of Lords ruling; a general no-fault scheme, which would relate both to the historic cases and to the future; and a return to the common law scheme. So far, the Government have made no announcements about their position.

There is no perfect option for dealing with this issue, but pleural plaques are a serious condition that affects many people, and doing nothing is simply not an option.

Mr. Michael Clapham (Barnsley, West and Penistone) (Lab): My hon. Friend will be aware that the medical evidence shows that pleural plaques occur only when there has been exposure to asbestos. After about 20 years, they can start to calcify, forming a hard part on the pleura. Furthermore, they are irreversible. Given what his Bill says in respect of impairment, does he agree that because the medical evidence is that the plaques are irreversible and there is a great deal of evidence that they lead to breathlessness, the condition should be compensatable, as the Bill says?

Mr. Dismore: I am grateful to my hon. Friend for his intervention, and I very much agree with what he has said. He has been a redoubtable campaigner on this issue for many years, ever since the court cases. I am pleased to see him and hope that he will support my Bill.

My Bill tries to build on what has happened in Scotland, where people are ahead of the game. The Scottish Parliament has passed its own legislation to restore the position in law to where it was before the cases in the Court of Appeal and House of Lords. That Bill is simply awaiting Royal Assent and has completed all the other stages.

My Bill is modest. All it seeks to do is turn back the law to what we all thought it was prior to the decisions in the courts. Any scheme case would, of course, cost the taxpayer. However, turning the law back to where it was would mean that the insurers, which were on risk at the time, would meet the liability rather than getting the windfall of having collected the premiums without having to pay out on the risk.

The Bill is tightly drawn—it is not the thin end of the wedge, and it will not open the floodgates to any form of parallel litigation for other illnesses or injuries; it relates purely and simply to pleural plaques. It maintains the basic principles of negligence or breach of statutory duty as the test for liability. The burden of proof that the claim exists and should be upheld is still on the claimant. The Bill provides for a suspension of the limitation period from the date of the House of Lords decision until the coming into force of the Bill. That is only fair, but it would not affect any cases that were already settled or decided in the courts. The Bill also leaves out Scotland, where, as I have said, a decision to legislate has already been made.

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Mrs. Eleanor Laing (Epping Forest) (Con): Will the hon. Gentleman clarify that point? It is not clear whether his Bill would be generally retrospective. I appreciate that he has tackled that point, but I want it to be clarified.

Mr. Dismore: My Bill, under clause 4(2), would not affect any claims that have already been decided through a settlement or by the courts. It would allow people who had pleural plaques and whose cases had not been disposed of to reactivate them, as it were, to claim compensation. It would not try to undo anything that has already been decided, but, in cases that were in abeyance because of the decision of the House of Lords, had not been decided or had been dismissed, the people involved could still be compensated. That is basically the nub of the issue. The aim is simply to turn the law back to where we thought it was.

In conclusion, I thank those who helped me to draft the Bill—the Association of Personal Injury Lawyers, Thompsons, the GMB union, my own law firm, Russell Jones and Walker, and all the others who have been involved in the campaign.

Linda Gilroy (Plymouth, Sutton) (Lab/Co-op): I join my hon. Friend in thanking the trade unions. Will the Bill fully restore the security that people who developed pleural plaques once had, whereby if they went on to develop the whole disease, they had the basic plank from which to make a further compensation claim without the hassle otherwise involved? Plymouth has been a hot spot for that.

Mr. Dismore: My hon. Friend has made an important point. If the decision on liability were to be made at an early stage on the basis of a pleural plaques case, with a provisional damages award, someone who developed, further down the track, mesothelioma, asbestosis or lung cancer as a result of asbestos exposure would not have to go all the way through establishing liability again. That would be of benefit not only to the claimant but to insurers, because it could avoid difficult and costly litigation many years later when the evidence would be harder to establish.

This is not only about compassion for people who are suffering from pleural plaques and the psychological consequences that are caused, which are equally bad. We are simply asking for justice for people who have, through no fault of their own, been exposed to asbestos during the course of their employment, who should be enabled to recover the compensation to which they are justly entitled.

1.42 pm

Mrs. Eleanor Laing (Epping Forest) (Con): I welcome the fact that the hon. Member for Hendon (Mr. Dismore) has introduced this Bill, because it concerns an important matter that deserves discussion in this House. Conservative Members certainly have the compassion to which he referred. We have great sympathy for people who have unwittingly had to work with asbestos for much of their working lives; and, indeed, for those who have not directly worked with asbestos but have come into contact with it because members of their family and others have worked with it. There is no doubt—we acknowledge it, of course, because it is a clear fact—that many thousands of people undertook, sometimes for a lifetime, work that they had no idea was dangerous.

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Some time ago, when, like the hon. Gentleman, I practised the law instead of just talking about it, I dealt with a case that had gone on for years and years, involving the insurance aspects of asbestos injuries and affecting hundreds of thousands of people. I well remember the evidence that I dealt with, and I am well aware of how horrible the effects of asbestos and asbestosis can be, and are, for very many people. Of course, we accept the principle, as is normal in personal injury law generally, that where someone has suffered, and is suffering, because of the work that they did, they should be entitled to compensation.

However, there are various areas in which I believe the hon. Gentleman’s Bill varies from the principle I have just stated. First, we must make a distinction between pleural plaques as a benign condition, pleural plaques where there is a physical impairment and other asbestos-related diseases. I hope he accepts that and I think he probably does, because his Bill is specifically about pleural plaques. If we do not make that distinction between those three different types of asbestos-related disease, we are in danger of widening the effects of the law enormously. It is the duty of Parliament to balance the needs and rights of the individual with the amount spent from the public purse on the taxpayer’s behalf.

Mr. Dismore: The hon. Lady identified three types of injury. She called the first benign, although I prefer to call it asymptomatic, because I do not think it is benign. The remaining two are already actionable in law. The only one that remains is asymptomatic pleural plaques, which is what my Bill is intended to address. The other two are already actionable, so the issue does not arise.

Mrs. Laing: I thank the hon. Gentleman for making that point, which I fully appreciate. That is why I am making the distinction quite clear. Of course the other two are actionable—I understand that that is exactly why the hon. Gentleman has brought the matter before the House today. However, I have been considering the medical evidence; I suggest it is important that we do that when considering new legislation such as this. Sometimes it is right that general principles of personal injury law should be upheld rather than specific instances isolated, as they would be by the Bill.

In saying all this, I am exploring the possibilities in the Bill rather than speaking vehemently against it. As I said, when we consider this issue we do so with great compassion for and sympathy with people who have worked with asbestos and who suffer from asbestos-related diseases.

Mr. Clapham: As the hon. Lady knows, there is a great disparity in some of the evidence. There are two chaps who come regularly to my surgery, both of whom have difficulty in breathing and have been exposed to asbestos for the bigger part of their working lives. Both have pleural plaques, and both take the view that pleural plaques are causing their breathlessness. Yet I know of another case, of a younger man who was diagnosed with pleural plaques. When the doctor made the diagnosis, that man could tell him precisely where the pleural plaques were, because when he walked vigorously he could feel the spot. When he pointed to the spot, the doctor agreed. There is a real need for us to see much more medical evidence in future, because the decision that the Law Lords made on 17 October 2007 belittled people to some degree.

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Mrs. Laing: I entirely see the hon. Gentleman’s point, including about the particular people to whom he refers. It seems to me that as a matter of the general principle of personal injury law, if there is an identifiable and provable link between suffering or injury in such cases and action taken by, or negligence on the part of, an employer—a legally provable causal link with the injury that someone is now suffering—the normal law of this country, without any amendment such as in the Bill, would give those people a locus for action. I am sure that the hon. Gentleman will have advised his constituents to take both medical and legal advice on the matter. Indeed, if he were to come forward with the medical and legal advice that showed that causal link, there would surely be a case to answer without the need for today’s Bill.

Mr. Dismore: The real problem is the general view that the House of Lords got it wrong. Part of the problem was its refusal to aggregate the psychological and the asymptomatic impact—that is, the physical changes—of pleural plaques. However, if pleural plaques were on the outside of the body rather than on the inside, there would be no argument about their being compensatable, yet because we cannot see them, they do not count. I was grateful for what the hon. Lady said earlier, but I am not sure whether she is opposing my Bill or not. If she is concerned about the detail of the wording, let me assure her that I am not wedded to it. Should the Bill proceed to Committee, I should be more than happy to discuss any suggestions for amendments that she may wish to make to improve it.

Mrs. Laing: I thank the hon. Gentleman for that. It might benefit the House in considering the matter to take into account the published medical opinion on it. For example, the president of the British Lung Foundation, Dr. John Moore-Gillon, has said:

Linda Gilroy: I would press the hon. Lady to clarify whether she intends to allow the Bill to receive its Second Reading and say whether she has picked up on the point made by the presenter of the Bill, my hon. Friend the Member for Hendon (Mr. Dismore), that we need to consider the psychological aspects. When somebody has a pleural plaque, they live in fear of it. Does she know that there are thousands of people who served in the Royal Navy who were required to pull flash hoods with asbestos in them over their faces—many are in their late 70s and 80s today—who live with that fear?

Mrs. Laing: Yes, I appreciate that. I think that I said quite clearly, although I will repeat for the sake of clarity, that we on the Conservative Benches certainly acknowledge that there are hundreds of thousands of people—not just in Britain, but throughout the world—who were forced to work with asbestos when the awful effects it can have were not known. I have previously seen evidence of the dreadful effects of asbestosis. I also accept what the hon. Lady says about the employer in question sometimes being Her Majesty’s Government, which means that the person legally responsible for compensation for the injuries suffered is the British taxpayer. I entirely agree that that is an incontrovertible fact.

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The hon. Lady asks whether I intend to oppose the Bill today. We are dealing with something that is in the balance—something that is not clear. It is not a matter for party political argument, nor of political principle. It is not a question of our thinking and saying one thing, and the Government thinking and saying another. Far from it: we recognise that people are suffering and have suffered. I believe that the matter ought to be more carefully explored. As a matter of principle, I would always encourage us to allow such a Bill to go to Committee, so that it can be properly considered.

The hon. Member for Hendon said that he would welcome amendments to the Bill in Committee. As a mark of respect to our legislative process, I would not oppose a Bill such as this at this stage in the proceedings. I am not yet certain whether I will support it, but I will not seek to prevent it from having a Second Reading. It is right that all these matters should be explored.

I should like to continue with my exploration of the published medical opinion. I have already quoted Dr. John Moore-Gillon, and I should like to quote a leading consultant, Dr. Robin Rudd, who has said:

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