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"does not reflect the different legislation on limitation periods for Northern Ireland. We shall have to look at that at a later stage." --[ Official Report, Damages (Asbestos-Related Conditions) Public Bill Committee, 1 July 2009; c. 13.]
I am amazed that in the previous debate, notwithstanding the concern expressed in all parts of the House on this issue, the Minister did not have the courtesy to explain the Government's position on the Bill. In private, during the Division, I asked her why she had not spoken and her reply was that it was because she was neutral on the Bill. If the Government are neutral on it, how come so many Ministers voted against the previous amendment? There seems to be some inconsistency.
Mr. Chope: I fully accept that, Mr. Deputy Speaker, but I am hoping that as a result of what I am saying the Minister will earn her keep-her substantial salary-by making the effort to stand at the Dispatch Box after I have spoken to explain her views on amendment 14 and the associated amendments and explain what she meant by those comments in Committee. I know the frustration of so many Members-mainly, but not exclusively, Labour Members-who have been campaigning on this issue at the fact that the Government have not responded to the consultation and not yet said what they are going to do. I am surprised and disappointed that there was not greater participation in the previous debate-I hope that there will be more in this one.
The importance of these amendments is that they deal with retrospection and the consequences of changing the law. The promoter of the Bill, the hon. Member for Hendon (Mr. Dismore), said that if anyone wanted to take advantage of the law, they would still be able to do so on a retrospective basis. In my view, if anyone wishes to take advantage of the new law, they should have to commence proceedings for the remedies under it after the Bill comes into force-that would be the normal procedure. I do not believe that the Bill is an exact replication of what happened before the House of Lords judgment, so it would create a new legal framework. If people wish to take advantage of that framework, they would have to start proceedings under that framework. The Bill, as drafted, would mean that those who had begun their actions but had not brought them to a conclusion would be in a better position than those who had brought actions and had them determined for lesser sums or on a compromise basis under the old law, so some people would be at a severe disadvantage.
I am also concerned about the issue of retrospection, which is a hot topic. As my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said yesterday, it goes to the root of what we mean by the rule of law. If we do not comply with the rule of law and if we start implementing retrospective legislation, we create -[Interruption.] So many sedentary comments are being made at the same time that I cannot hear them. If hon. Members wish to intervene one by one-seriatim, to put it in legal terms; I know that the hon. Member for Wolverhampton, South-West (Rob Marris) will understand that term, even if some of his colleagues do not-I shall do my best to respond to them.
Mr. Simon Burns (West Chelmsford) (Con): I can understand in principle my hon. Friend's antipathy to the whole concept of retrospection. With regard to asbestos, however, a problem emerges. A constituent of mine is suffering from lung cancer as a result of asbestos in schools; it has been established that her working environment caused her medical complaint. If the Bill were to be enacted, she would presumably not be able to claim any compensation. That is a bit unfair, given that after this Bill is enacted-if that is what happens-other people would be able to claim. Unfairness might be created purely because of the use of an arbitrary date.
Mr. Chope: My hon. Friend makes a good point. As soon as we start discussing retrospection, we are talking about arbitrariness. That is why most people deplore the principle of retrospection. Most written constitutions outlaw retrospective legislation, which means that if a Parliament seeks to introduce such legislation, it can be challenged successfully through the jurisdiction of the courts of the country in question, on the basis that it is contrary to the constitution. This country does not have a written constitution and we rely, in a sense, on this House to police the standards that we have traditionally held dear and the principles that we have traditionally held dear, which include being against retrospection. Yet this Bill would have the effect of changing the rules back to what its promoter thinks they were before. However, they would not return to what they were before, because what he is really saying is that the law would be changed back to what is contained in this Bill. That means using some indeterminate point in the past, the length of which backwards would be limited only by the operation of the limitation legislation. That would create all sorts of unintended consequences and manifest injustices, along the lines that my hon. Friend has outlined.
I do not know whether the Government are neutral about this matter, whether they are silent or whether they are just in contempt of Parliament. If we do not get an answer on this, it would be very sad indeed, because surely those outside this place should be able to know the Government's response on this issue, which has been included in the Bill. I do not know whether there is a conspiracy of silence involving the Government and Labour Members, and I do not know the Government's motive on this matter. I feel sad that a Bill that has progressed this far, through the ingenuity of the hon. Member for Hendon, is being looked at by the Government as if it were of no relevance whatever. The Minister will not account for herself. I shall give way to her if she wishes to indicate whether or not she will respond to this debate. Is she just going to sit there and not respond? She is smiling-perhaps she will say whether she will respond to this.
Philip Davies (Shipley) (Con): I absolutely agree with my hon. Friend's point about the principle of retrospection, which is clearly arbitrary and unfair. Does he agree that it might well not be a good argument to use with this Government to try to persuade them of our case, since they have already introduced legislation retrospectively? In fact, they went even further than that and introduced taxes retrospectively in this Parliament.
My hon. Friend is right. We have had lots of complaints about those retrospective tax changes, but in fairness to the Government-although I am reluctant to be fair to them-there has always been an element of retrospection in relation to tax legislation. That is why at the beginning of the Budget debate certain of the measures in the orders on taxation are always deemed to have had retrospective effect even
though they have not been passed by the House at that stage. There have always been arguments in very special circumstances for the use of retrospective legislation in relation to tax, but my hon. Friend is absolutely right to say that this Government have extended those conventions far in excess of what they used to be.
We now have this Bill, which might or might not have been connived at by the Government-we will find out shortly-and which sets a dangerous precedent. It makes it much more difficult for those who compromise their principles about retrospection to argue against the retrospective elements of Sir Thomas Legg's rulings, because it makes them look as though they are prepared to argue against retrospection only when it affects them personally rather than a matter of principle. My hon. Friend the Member for Shipley (Philip Davies) and I can openly say that we are against retrospection in all circumstances rather than just in circumstances where it might affect us. There is some commendable consistency on this issue coming from Conservative Members, and I hope that my hon. Friend the Member for North-West Norfolk (Mr. Bellingham), who sits on the Front Bench, will likewise be able to endorse that and say that he, as a shadow Justice Minister, supports the principle that we should not have retrospection. As a barrister by profession and training, he will understand and share my concerns about that.
I shall sit down now and listen to what the Minister has to say, so that I can respond to her points. Perhaps the promoter of the Bill might give the House the courtesy of a response on the issue, too, because it is too important a subject to be left uncommented on.
In principle, I have considerable sympathy with what my hon. Friend seeks to do. If his amendments were to be successful, they would remove the retrospective nature of the Bill. Like him, I have concerns about retrospective legislation because it can be arbitrary and-in many unforeseen and foreseen circumstances-unfair. However, when one is considering retrospection, one has to judge it case by case. There are some circumstances in which retrospection is not so unfair, or in which it should be considered as an evil, as it might appear at first sight. There are cases-such as in any legislation that involves medical conditions-where it might actually be more unfair not to have a retrospective element. Medical conditions do not occur uniformly and some people might be affected by a new piece of legislation whereas others would not, which would cause unfairness.
As I said in my intervention, I have a constituent who spent all her working life as a dedicated teacher. Unfortunately-this is beyond dispute-she contracted lung cancer as a result of working in an environment where asbestos was present, which has had a life-changing and dramatic effect on her health. If this Bill were to become law and these amendments were accepted, she would not be eligible to seek compensation under the Bill. In theory, someone else who might have been working at the same time and on the same premises might at a later stage develop the same medical condition. Presumably, if the amended Bill became law, that second
teacher could seek to claim compensation as it would not be a retrospective claim, but my constituent could not. That, to me, seems arbitrary, unfair and illogical.
That is why I have a misgiving about the intention of the amendments although I have considerable sympathy with the principle of what my hon. Friend is trying to do. When the Minister speaks, perhaps she can address this point and give us the benefit of her role as a Justice Minister and of the legal advice that she can receive by suggesting how we could get round this problem so that we do not have to take the all-or-nothing approach that my hon. Friend's amendments would introduce.
Mr. Andrew Dismore (Hendon) (Lab): I do not want to detain the House, but I would question whether this is a fully retrospective measure. As the hon. Member for Christchurch (Mr. Chope) conceded, the cases that have already been disposed of will not be reopened as a consequence of these changes. Earlier, the hon. Gentleman talked about the thousands of cases that were in limbo. The Bill will make provision for those thousands of cases and will ensure that those people can bring their cases forward rather than having them simply stay as they are. There is nothing, of course, that would stop new claims being brought.
The hon. Gentleman is overstating his case a little when he talks about the retrospectivity of the provisions. They are there to plug the gap in the law that was created by the House of Lords. Effectively they suspend the limitation period for the period since the decision in the House of Lords to the date when the Bill becomes an Act, and then the limitation period starts to run again. The arbitrary nature of retrospectivity was talked about, but this provision is not arbitrary-it is extremely circumscribed and will apply only to cases of pleural plaques.
The hon. Member for West Chelmsford (Mr. Burns) referred to his constituent's case. As he will probably know, I was a personal injury lawyer before I came to the House. Once a lawyer, always a lawyer, and although I am not practising cases I still have a practising certificate and am a consultant with my firm. If he wants to have a word with me afterwards, I will discuss his constituent's case with him and see whether I can come up with any ideas. It is not clear from what he said whether his constituent's case failed because of the limitation defence under section 14 of the Limitation Act 1980, which concerns the date of knowledge, or because an application was made to extend under section 33 of the Act, or whether it failed for other reasons to do with liability.
Mr. Burns: I was not saying that my constituent's case had failed. The point I was making was that if the amendments were accepted and the Bill become an Act and if my constituent now wanted to pursue a claim, she would presumably not be able to because her existing medical condition is known and she has known about it for some time, whereas if someone discovered after the Bill was enacted that they had the same medical condition, they would be able to make a claim. That would be an unfair difference between the two individuals.
Mr. Dismore: The hon. Gentleman is comparing apples and oranges. As I said, I am happy to discuss his constituent's case with him after the debate if he wants to do so, but that case would be dealt with under existing law.
The problem is that the House of Lords decision said that pleural plaques were not compensatable. Lung cancer attributable to asbestos is compensatable, although if the claim was left too long the three-year limitation period may have expired, and when the case was brought there may be arguments about the date when the claimant knew the cancer was attributable and about whether the judge should give discretion to disapply the limitation period under section 33. There may even be a defence on causation or failure to satisfy the burden of proof. There could be a series of reasons.
The Bill does nothing to affect existing law as it applies in the case of the hon. Gentleman's constituent and she may indeed have other arguments to advance. On that basis, I hope he will withdraw his concerns about the Bill. It is a narrow, circumscribed provision to deal with a specific problem created by the House of Lords case.
Mr. Dismore: The amendments would make no difference to the case of the hon. Gentleman's constituent. There would be no benefit to her whether or not they were accepted, because the measure applies only to pleural plaques.
"Sections 1 and 2 are to be treated for all purposes as having always had effect."
Mr. Dismore: We could end up in a rather semantic jurisprudential argument about what was or was not the law before the House of Lords judgment. Theoretically, the House of Lords simply stated what the law always was, so to that extent I agree with the hon. Gentleman, but in practice the Bill turns back the law to what everybody thought it was before the House of Lords judgment. That may be a semantic point, but it is the thrust of the Bill-although only in so far as it relates to pleural plaques.
Philip Davies: But with respect, the Bill does not change the law back to what people thought it was; it changes the law back to what the hon. Gentleman thought it should have been at that time. Surely that cannot be a basis for introducing legislation.
Mr. Dismore: On many occasions, when there has been some weird and wonderful House of Lords decision, the House has passed legislation to put the law back to what people thought it always was. I remember that the decision on causation in the Fairchild case was corrected in the House-putting the law back to what people thought it was before the House of Lords messed around with it.
There is nothing particularly novel about the measure; it is very modest and circumscribed. To the minimal extent that it is retrospective, it is justified and I hope that the House will reject the amendment.
As I understand clauses 1 and 2, they put back the old common law, but one of my concerns is the possibility for parallel litigation. Indeed, the Association of British Insurers has talked of a flood of exposure-related cases relating to different types of toxic products. However, having studied the Bill carefully, I think the association is being overly alarmist, because it is tightly drawn.
I should certainly like to hear what the Minister has to say, because we are really going to the hub of the Bill in this debate. I agree with my hon. Friend about retrospection: in principle, it is not a good thing. It is extremely unsatisfactory when applied to tax law-indeed, to any law-to Executive actions or involvement in Members' affairs. On the other hand, if we are to overturn a judgment of the highest court of the land, there must, by definition, be provisions for individuals who might mount an action in the period between a House of Lords judgment and new legislation coming into effect. That is why the hon. Member for Hendon (Mr. Dismore) has a strong case when he points out that the suspension of the limitation period relates only to pleural plaques.
Although my hon. Friend the Member for Christchurch is right about the principle, I should like to hear what the expert-who is of course the Minister-has to say. There is bound to be an element of retrospection but I agree with the hon. Member for Hendon that the Bill is absolutely focused and specific; it refers only to pleural plaques and cannot be extended as the ABI fears. I am comfortable with the clauses as they stand, although I share the concerns expressed by my hon. Friend. However, at this stage, it is important that we hear the view of the sponsoring Department.
Philip Davies: I am listening to my hon. Friend with interest, but does he agree that it is important to defend the retrospection principle? Retrospection may apply only in narrow cases in relation to this Bill, but once the principle of retrospection is conceded on a regular basis it makes it easier to introduce in many other things.
Mr. Bellingham: My hon. Friend is absolutely right. He and I share opinions on many issues, including this one. The only point I put to him is that if one is to use legislation-albeit a private Member's Bill in this case-to overrule a decision of the highest court in the land, there has to be an element of retrospection. Without it, I do not see how we could cope with people who would otherwise have mounted a claim in the intervening period. In my judgment, it is a fair and reasonable thing to do on an extremely defined basis, but I hope that the Minister will put our minds at rest and, above all, give us the opinion of the sponsoring Department, whose job it will be to ensure that if the legislation goes through it is carried out correctly.
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