|Previous Section||Index||Home Page|
I had not intended to speak in the debate on this amendment, but I shall raise a couple of points as a courtesy to the hon. Member for Christchurch
(Mr. Chope), as I think he may have misunderstood me earlier. When I said that I would be speaking later, I meant later in the debate as a whole.
It is flattering of the hon. Member for North-West Norfolk (Mr. Bellingham) to describe me as the expert when I am surrounded by lawyers. It would be with some trepidation that I described myself as an expert in this subject.
I agree that retrospection is not always a good thing and that it should be avoided as much as possible, but the hon. Member for West Chelmsford (Mr. Burns) made the very good point that it can be appropriate in certain cases, such as the one he described. If the amendments proposed by the hon. Member for Christchurch were accepted, they would take the heart out of the Bill and although the decision is for my hon. Friend the Member for Hendon (Mr. Dismore), whose Bill it is, I caution against support for the amendments.
Mr. Chope: Can the Minister explain what she meant by her comments on clause 3 in Committee and the different arrangements for limitation periods in Northern Ireland? She said she would have to revisit them at a later stage, but surely we should be considering them at this point rather than on Third Reading.
Bridget Prentice: Since I made that statement, the Northern Ireland Assembly has taken a view as to what it wants to do about the measure, which makes the matter slightly more complicated and is one of the reasons why, unfortunately, we are still looking at some of the detail. There are problems with different limitation periods and it is something we have to look at carefully, but we shall have to do that in co-ordination with the Assembly. On that basis-
Bridget Prentice: No, I am not saying that I am unhappy with clause 3; I am saying that we need to reflect further on it. If we are to go down this road at all, we want to ensure that we do so properly. I am perfectly happy for my hon. Friend the Member for Hendon to continue to press the issues, and I hope that we can then move on with the debate.
Mr. Chope: At least we have what I think is the beginning of a debate. The Minister has promised that if we reach Third Reading, we will have a lengthier debate-when she will perhaps elucidate on the opaque comments that she just made. She says that retrospection must be avoided as much as possible, but we should go much further, because, when the Select Committee on the Constitution in the other place reported on retrospective aspects of the Banking Act 2009, it drew the House's attention to the need for a
"compelling reason in the public interest for a departure from the general principle that retrospective legislation is undesirable. There is therefore a heavy onus on the Government to justify to the House why a retrospective provision"-
"of such breadth...is required in the particular context of this bill".
The Minister did not discharge that heavy burden upon the Government to justify retrospective legislation, and I am very disappointed about that, because the retrospective element in the Bill before us tarnishes the whole thing.
My hon. Friend the Member for North-West Norfolk (Mr. Bellingham), speaking from the Opposition Front Bench, said that clauses 1 and 2 re-established the old common law, but, with the greatest respect to my hon. Friend, I must say that once the highest court in the land has pronounced upon the common law and Parliament has overturned that pronouncement, Parliament replaces with statutory law that part of the common law by repealing it through an Act of Parliament. The courts can interpret that, but I do not think it possible jurisprudentially to go back to the old common law by passing a statute saying that the old common law shall apply. However, if my hon. Friend has a different view about that, because in that area of jurisprudence he may be a greater expert than other Members, I shall gladly give way to him and defer to his better judgment. My understanding, however, has always been that there is common law, and that once statute law has been introduced to replace the common law, there is nothing that one can do about it.
I do not think that my hon. Friend really shares my concerns, but what concerns me is that the Bill makes a retrospective change in the law of negligence, which is applied only to one aspect of damage or personal injury, by defining that personal injury in much wider terms than it could be defined elsewhere in the common law of tort. No justification has been put forward for doing so, other than the justification of expediency. In a sense, that was the point that my hon. Friend the Member for West Chelmsford (Mr. Burns) made-that there are circumstances in which it is expedient to make such a change. However, as soon as we start talking about what is expedient and abandon the rule of law, we get into what is now colloquially called the court of public opinion. From the press cuttings that I have read, I have no doubt that the court of public opinion thinks that people from the mining and shipbuilding industries who suffer from pleural plaques need not only sympathy but compensation. However, this court, which is not subject to the rule of law, can be volatile and there is a thin dividing line between the court of public opinion and mob rule.
The court of public opinion would probably have liked IRA bombers to be left to a lynch mob, but the rule of law prevented it, and I would defend the rule of law to the end. Once we abandon the principle of the rule of law, we are in grave jeopardy, because, as the Leader of the House said so cogently yesterday, its abandonment inevitably leads to arbitrariness. That means unpredictability; it means regimes such as Mugabe's-that type of operative-can ultimately come into play; and that people live in fear about whether they will be dealt with, or punished, by the state without having any remedy or knowing in advance about whether they have offended the rules of the land.
As for the response given by the hon. Member for Hendon (Mr. Dismore) to my hon. Friend the Member for Shipley (Philip Davies) in respect of clause 4(2), I
should say that, far from turning the law back to what everyone thought it was, the Bill will turn it back to what the hon. Gentleman thought it was and wanted it to be. However, he was wrong: as a lawyer, he must accept that, in the light of the House of Lords ruling, if he felt that the law was as his Bill sets out, he was wrong. He has been proved wrong and told that he is wrong by the highest court in the land, so now he is trying to get his own back on that court and its members by telling them that they were wrong. At all material times, however, we cannot say that they were wrong, because at all material times, as the hon. Gentleman has made clear, the House of Lords ruling is that the common law was and is as enunciated in that judgment.
All that can happen now is a change of law by statute-enacted by this House to implement the hon. Gentleman's Bill. However, if this House-this Parliament-changes the law, the law should be changed prospectively rather than retrospectively; and, if that law introduces new rights, based on an interpretation of the hon. Gentleman's legislation, people who currently suffer from pleural plaques or may do so in the future will be able to exercise those rights under the rule of law. They will have their right of action under the hon. Gentleman's legislation.
I fear that the law of expediency and populism is being introduced to try to replace the rule of law. On the point that my hon. Friend the Member for West Chelmsford made about his own case, having recently been in correspondence with the Government, I must note that when the criminal injuries compensation legislation was brought in, it gave compensation rights to those who were the victims of abuse-even at the hands of a relative-provided that they were under 18 years old.
I have a case of two siblings-one was under 18 and when the law was introduced and the other was over 18, but both had been subject to abuse. The younger of the two has been awarded compensation under the law, but the older has not because the law did not apply retrospectively. That is a hard case-there is no doubt about it, and I am sure that my hon. Friend the Member for West Chelmsford agrees. Do we then say that that provision under the Criminal Injuries Compensation Act 1995 should have been retrospective? Various bodies, such as the Law Society or the Law Centres Federation or some such body, have suggested that, but the Government have resisted it because they say that the law was prospective, not retrospective. When it was passed, it was said that one had to be under 18 at the time to qualify for remedies under it.
Inevitably, any law passed in the House, unless it has general retrospective application, will create dividing lines, and there will be hard cases. However, should those hard cases cause us to usurp the principle of the rule of law? My argument is that that is wrong. Some people believe that it is right. However, as soon as we start saying, as my hon. Friend the Member for West Chelmsford did, that we should look at things on a case-by-case basis, we effectively abandon the principle of the rule of law and lay ourselves open to arbitrariness. For example, someone might say, "This has got lots of headlines in the local paper; we must concede the point", when we would not concede on another case. I think that that is a fundamental issue, and it is why I continue to be concerned about the Bill's retrospective nature.
Philip Davies: I hope that my hon. Friend will not miss out the amendments he tabled to clause 3 in his speech, and that he will also comment on the Minister's rather extraordinary point. When he pressed her, she said that the Government were still considering the detail. Is not it slightly alarming that we are considering whether to amend a specific clause, yet the Government have not even considered the detail?
Mr. Chope: My hon. Friend makes a cogent comment, as he so often does in the House. We were told that we would get a full response from the Government to the consultation paper, which extends to 50 or so pages, before Christmas last year. We never got it. We were told that we would get it before the House rose for the summer recess-we never got it. We were told that we would get it at the end of the recess, and we do not have it even today. We have no indication from the Minister of when-if ever-we will get it. The Government are treating the House with contempt. More important-they regularly treat the House with contempt-they are treating all the victims who are affected by pleural plaques with contempt. That is unforgivable.
The Government say that they are still considering the detail. How long will that last? What are the likely conclusions? How can that be consistent with the Government's approach-as so far revealed-of being benevolently disposed towards the Bill? Perhaps they are not-perhaps they are playing a double game, and if there is a Division on the Bill, they will withdraw their troops and leave the hon. Member for Hendon isolated so that they do not have to account for what happens on Third Reading. I hope that I am wrong because I would like a Third Reading debate. However, my hon. Friend the Member for Shipley is right that something odd is going on.
It is significant that the Minister did not respond to all my amendments. She did not respond to the amendment that would ensure that the Bill did not apply to the Crown. I tabled it to try to draw out some information about the extent to which the Government believed that the Crown would be affected by the change in the law that the Bill proposes. Her response on limitation of actions was simply to say that the change in law or what has been said in Northern Ireland made the matter even more complicated. Where does that leave us? It is the first time she has said that, but perhaps she can get some briefing about what she means by it. Does it mean that she thinks that the period that has elapsed since the end of the consultation-more than a year-justifies another year's delay in reaching a consultation because of what has happened in Northern Ireland? Perhaps she is hoping for that.
The Government's response has been wholly unsatisfactory. For the reasons that I have given, amendment 16 to remove clause 4 is the most important amendment. Without clause 4, the Bill would not have retrospective effect. We would respect that, at all material times, the common law is as enunciated by their lordships in the judgment that I mentioned, but that, from the time the measure got Royal Assent, the law in the narrow field of damages for pleural plaques would be different, as outlined in the Bill.
I am very pleased that the Bill has been able to get this far. Perhaps it is more than a coincidence that today is the 175th anniversary of the great fire of Westminster. If there had been asbestos in the building, we might all be suffering from pleural plaques, but it might not have burned down.
The normal thing to do on Third Reading is thank those who have helped with the Bill. I thank Ian McFall and Tom Jones of Thompsons solicitors, who have done a lot of research and drafting for me; the Association of Personal Injury Lawyers; and all hon. Members who have turned up today and on previous occasions to support the Bill and who have maintained the Trappist vow of silence as I asked. Many would have liked to have got their names on the ticket by speaking in the debate, and I am grateful that they have not done so to give time to ensure that we had a chance to get the Bill through.
I also thank the Chief Whip-he cannot speak in the House, but he has been extremely helpful with the Bill-and the Government. Whether they have been neutral or supportive, they have not sought to obstruct the Bill, to its great benefit.
The people who will benefit are the thousands who suffer from pleural plaques. Pleural plaques in themselves are not disabling, but they are a cause of great worry and they cause physiological changes. About 10 per cent. of people who have pleural plaques go on to develop something more serious.
The fact remains that cases brought in such circumstances are not only about compensation for pleural plaques but about establishing liability for possible future injury. Through the provisional damages system, liability can be established for pleural plaques, and if somebody went on to develop asbestosis or mesothelioma, they would already have the question of liability out of the way. That will shorten claims in future for those conditions, bearing in mind how rapidly they develop and how disabling they can be.
The Bill is modest. It seeks only to turn back the law to what we thought it was prior to the decisions in the courts. Any alternative scheme would cost taxpayers, but turning back the law to what we thought it was will mean that the insurers will have to pay out on the risk that they accepted through the premiums that they took, and that they will not get an unfair windfall.
The Bill is tightly drawn. It is not the thin end of the wedge and 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 tests for liability. The burden of proof that the claim exists and should be upheld will still be on the claimant.
As we have debated, the Bill provides for a suspension of the limitation period, not its disapplication, from the date of the House of Lords decision until the Bill comes into force. That is only fair, but it would not affect any cases that have already been settled or decided in the courts.
I commend the Bill to the House. I realise that there is little time left in this Session, but I hope that the House of Lords will look upon it favourably when it gets there and ensure that it can have a swift passage, so that it can become law and provide compensation for the many thousands of people who have been left in limbo as a consequence of the House of Lords judgment. It is a modest measure, but an extremely important one that will bring comfort and relief to many people up and down the country.
Mr. Chope: I congratulate the hon. Member for Hendon (Mr. Dismore) on having got his Bill this far and having exercised self-restraint in expressing the feelings of frustration that I know he has about the behaviour of the Government on this issue over the last 18 months. I also congratulate him on having found a sponsor for his Bill in the form of Thompsons solicitors, and I am sure that the hon. Member for Bolsover (Mr. Skinner) will also be pleased, as that firm would stand to benefit significantly-
|Next Section||Index||Home Page|