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Baroness Hollis of Heigham: My Lords, I am disappointed by the Minister's reply. I accept that most of the cases that will be considered for recoupment of benefit are likely to be disease cases and that, therefore, the overlap is a small proportion. However, it is a quite significant and substantial proportion of the injury cases. The Minister has not addressed the issue as to what happens when one is dealing with some of the examples that I gave--I referred to HIV cases, and so on--where, because it is difficult to label them as either disease or injury, the appropriate method of recoupment involved is unclear. Does the Minister wish to help us? What guidance will his department give to, say, medical appeal tribunal doctors?
Lord Mackay of Ardbrecknish: My Lords, this is Report stage. With the leave of your Lordships I shall respond briefly to the noble Baroness. As I think I have indicated on a number of occasions, it is difficult on the Floor of the House in theoretical cases to try to put oneself in the position of the people who will have to decide these issues--the compensator, the plaintiff and perhaps ultimately the courts. It is quite hard, and wrong, for Ministers at the Dispatch Box to make judgment on these issues. They are matters for the parties involved and ultimately the courts.
Baroness Hollis of Heigham: My Lords, if that is not a fudge, I do not know what is. The Minister says that he does not know and he will get rid of the issues by calling them theoretical. They are not. I cited to the Minister well testified test cases many of which are familiar to noble Lords from their own experiences. Those cases do not fall tidily into the category of injury or disease on which the Minister's case rests.
The Minister has set up a parallel path system. What happens to those clusters of examples--I gave a quite substantial number of injury cases--which do not fall tidily into either category and therefore confound his parallel path? What will happen to people in those cases? I imagine that lawyers will try
to argue that it is either a disease or an injury according to whichever produces the most advantageous situation as regards benefit compensation recovery. That seems to me an undesirable position in which to leave the law. I believe that the Minister wishes again to intervene.
Lord Mackay of Ardbrecknish: My Lords, I believe that the noble Baroness pursues a total red herring which her amendments do not address. The question as to whether it is an injury or a disease is unanswered by her amendment also, if she states that it is unanswered by the Bill. There is no definition. She attempts to put, as she believes, some equity between the two. I have suggested to your Lordships, I believe successfully, that the noble Baroness would be putting inequity between the two. If she really wants equity between the two, she will run both from the date at which benefit starts. That would put equity between the two and would make the situation perfectly clear.
I believe that we have a reasonably equitable position. The questions posed by the noble Baroness are not addressed in her amendments.
Baroness Hollis of Heigham: My Lords, my amendments do not seek to make a distinction between disease and injury. If the amendments are accepted, there is no need to make that distinction between an injury and a disease because they will be treated in the same way. That is what I seek. If the Minister persists in seeking to make a distinction between injury and disease he has to answer my question: how does he label those categories? If he accepts my amendment, he does not have to go down that perilous path because injury and disease will be treated in the same way.
The Minister responds by asking why we do not date them both from the same date. The Minister wishes to intervene again.
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness tempts me into a Committee stage, as she does frequently. If she does not want that, I shall resist doing so for the remainder of the day. Perhaps I may say this to her again at the risk of repeating the arguments. She is making a more significant difference. I believe that what I am doing is equitable. The key point is when the benefit starts. In injury cases the benefits will by and large start when the injury occurs or shortly thereafter. Disease can be diagnosed years before or indeed after benefit starts. In both cases the noble Baroness's amendment would be inequitable because either no compensation would be recovered or there would be a double compensation payment. Neither would be fair and equitable. If the noble Baroness wishes to pursue her argument, the only fair and equitable provision is for both to start on benefit being paid.
Baroness Hollis of Heigham: My Lords, I am unpersuaded by the Minister's reply. I wish to test the opinion of the House.
4.15 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 147.
Acton, L.
Addington, L.
Allen of Abbeydale, L.
Archer of Sandwell, L.
Ashley of Stoke, L.
Beaumont of Whitley, L.
Borrie, L.
Brooks of Tremorfa, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L.
Cocks of Hartcliffe, L.
Craig of Radley, L.
Currie of Marylebone, L.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Glenamara, L.
Graham of Edmonton, L. [Teller.]
Harris of Greenwich, L.
Haskel, L.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howie of Troon, L.
Hughes, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kilbracken, L.
Kirkhill, L.
Lovell-Davis, L.
McCarthy, L.
McIntosh of Haringey, L.
Mackie of Benshie, L.
McNair, L.
McNally, L.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Meston, L.
Milner of Leeds, L.
Monkswell, L.
Morris of Castle Morris, L.
Murray of Epping Forest, L.
Nicol, B.
Peston, L.
Plant of Highfield, L.
Ramsay of Cartvale, B.
Redesdale, L.
Richard, L.
Rochester, L.
Russell, E. [Teller.]
Sainsbury, L.
Serota, B.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Stallard, L.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thurso, V.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Warnock, B.
Whitty, L.
Wigoder, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Arran, E.
Ashbourne, L.
Astor of Hever, L.
Belhaven and Stenton, L.
Berners, B.
Blatch, B.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Brookeborough, V.
Bruntisfield, L.
Butterworth, L.
Byford, B.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Chalker of Wallasey, B.
Charteris of Amisfield, L.
Chesham, L. [Teller.]
Chorley, L.
Clanwilliam, E.
Clark of Kempston, L.
Cochrane of Cults, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.] Crickhowell, L.
Cuckney, L.
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Denbigh, E.
Denham, L.
Denman, L.
Dixon-Smith, L.
Donegall, M.
Downshire, M.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erne, E.
Exmouth, V.
Ferrers, E.
Flather, B.
Fraser of Carmyllie, L.
Gainford, L.
Geddes, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Greenway, L.
Harding of Petherton, L.
Harlech, L.
Harmar-Nicholls, L.
Harris of Peckham, L.
Hayhoe, L.
Henley, L.
Holderness, L.
Home, E.
Hothfield, L.
Howe, E.
Ilchester, E.
Inchyra, L.
Inglewood, L.
Ironside, L.
Johnston of Rockport, L.
Kimball, L.
Kintore, E.
Knollys, V.
Lane of Horsell, L.
Lauderdale, E.
Leigh, L.
Lindsay, E.
Liverpool, E.
Long, V.
Lucas, L.
Luke, L.
Lyell, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Malmesbury, E.
Marlesford, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monk Bretton, L.
Montgomery of Alamein, V.
Munster, E.
Murton of Lindisfarne, L.
Nelson, E.
Noel-Buxton, L.
Northesk, E.
Orkney, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Pearson of Rannoch, L.
Pender, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Pym, L.
Quinton, L.
Rawlinson of Ewell, L.
Reay, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Romney, E.
Rotherwick, L.
St. Davids, V.
St. John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandford, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Shrewsbury, E.
Simon of Glaisdale, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Spens, L.
Stanley of Alderley, L.
Stodart of Leaston, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swansea, L.
Swinfen, L.
Taylor of Warwick, L.
Teviot, L.
Thomas of Gwydir, L.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Wade of Chorlton, L.
Wilcox, B.
Wilson of Tillyorn, L.
Wise, L.
Resolved in the negative, and amendment disagreed to accordingly.
4.25 p.m.
Clause 4 [Applications for certificates of recoverable benefits]:
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