Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents

Memorandum by James Lee, Lecturer in Law, Birmingham Law School

  I write in response to the Committee's inquiry into Emergency Legislation. I am a Lecturer in Law at the University of Birmingham. My research focuses on judicial reasoning in the House of Lords and the law of obligations, especially in the area of causation. By coincidence, I have been reflecting upon the interaction between Parliament and particular judicial decisions and I am grateful for the opportunity to contribute to the Committee's Inquiry.

  I attach two appendices to my submission: the relevant provisions of the Compensation Act 2006, and a passage from the Government's Consultation on Pleural Plaques.




  Emergency legislation is an important subject for study, because it throws into relief the relationship between legislation and the common law. The relationship was recognised by the great jurist William Blackstone, who wrote in the first volume of his Commentaries in 1765:

    The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties.[51]

  This submission will examine the legislative response to the decision of the House of Lords in Barker v Corus [2006] UKHL 20, decided on 3 May 2006. S. 3 of the Compensation Act 2006 was inserted into the Compensation Bill at a late stage to reverse this effect of this decision on claims by victims of asbestos-related mesothelioma, and the Act received the Royal Assent on 25 July 2006. While not wishing to be as strident in my criticism as Blackstone, I shall endeavour to suggest that there are significant difficulties with the manner of the legislative enactment.


  Before examining the Parliamentary intervention, it is necessary to set out the common law context. To succeed in a claim for negligence, a claimant must prove that the defendant breached a duty of care which they owed to the claimant and that that breach caused the claimant actionable harm. The claimant is able to establish factual casuation if they can prove that, "but for" the defendant's breach, they would still not have suffered the damage. In Fairchild v Glenhaven Funeral Services,[52] the House of Lords unanimously (but with individual reasoning) recognised an exception to the need for a claimant to prove "but for" causation where they were unable to do so because of an "evidential gap", building on the authority of McGhee v National Coal Board.[53] The question facing the House was expressed by Lord Bingham, then Senior Law Lord, thus:

    "A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable."[54]

  Both Fairchild and Barker v Corus[55] concerned this general situation in the context of asbestos-related mesothelioma. The claimant or deceased had been exposed to asbestos while working for more than one employer, who were in a breach of duty to their employees, but only one of the employers was still available to be sued. Mesothelioma is an indivisible rather than cumulative injury, and so it was not the case that each defendant had directly contributed to the injury itself, as would be the case with asbestosis.[56] Due to the limitations of scientific knowledge about mesothelioma, it was not possible to determine the source of the causative asbestos fibre. Therefore the claimant could not prove that, but for any given employer's negligence, the injury would not have occurred. As a result, they could not satisfy the ordinary principles of factual casuation to succeed in their claim. In Fairchild, the House held that, in such cases, the claimant should be allowed to "jump the evidentiary gap" and the defendant could be held liable on the basis of material contribution to risk of harm.

  In Fairchild, the House did not determine the extent of liability under the exception, but it was assumed that liability was in solidum, ie, that the defendant was liable for the full extent of the harm. However, in Barker, a majority of four Law Lords held that damages should be proportionate in accordance to the risk created by the individual defendant, Lord Rodger strongly dissenting. Of the House who sat in Barker, two, Lord Hoffmann and Lord Rodger, had sat in Fairchild, and they vehemently disagreed about the scope of the exception. As to reasoning, a 3:2 majority, the House conceived the "damage" as being the creation of the risk, rather than the mesothelioma (Baroness Hale concurred in the result, but adopted Lord Rodger's analysis on this point).

  There is open debate amongst tort lawyers as to the merits of the decision in Barker. The line of cases has been labelled "mesothelioma jurisprudence".[57] Some academics endorse the approach of the majority,[58] arguing that "although there may well exist strong arguments in favour of maintaining the rule against apportionment where causation can be established on an orthodox basis, it is perfectly reasonable to argue for a modification of that rule where the causal criteria have themselves been altered".[59] This author's view is that the relationship between Fairchild and Barker is troublesome:[60] but it should be noted that the "risk as damage" approach taken by the majority in Barker may be seen to be problematic, as contribution to risk is not usually recoverable as damage. "Lord Rodger[61] suggests that the decision in Barker undermines the justice of the Fairchild decision in allowing the claimants to recover even though not all the potential defendants were before the courts. On the Barker interpretation, one is left to wonder what the point of Fairchild was. The rough justice of liability under Fairchild is not so much smoothed as undercut."[62]


  A consideration of the Hansard debates in response to Barker is instructive when reflecting upon emergency legislation, as it reveals that the desire to reverse what was felt to be an injustice caused Parliament to act without full regard to the consequences for the coherence of the law.[63]

  The Government was not pleased with the decision in Barker. The Minister for Employment and Welfare Reform (Mr. Jim Murphy) observed: "The Government and I are as disappointed with the Barker judgment as hon. Members are, not only because it adds further uncertainty and difficulty, and puts a further burden on those who have been diagnosed, but because it will lead to unfairness in how compensation is provided and offered… The Government find that utterly unacceptable."[64]

  The response of many MPs to the decision in Barker was condemnatory and emotive: the decision was described as "appalling",[65] "outrageous and wholly unacceptable".[66] We may take a selection of observations from the Hansard reports of the Commons debates and a Westminster Hall debate as an illustration of the strength of feeling:

    "The Barker judgment has no legitimacy, and a change in that respect is needed very urgently".[67]

    "The Barker ruling is a disgrace to the House. Trade unions and their legal services teams should be able to work through us in this House to overturn that disgraceful decision taken in the other place. It is about real people … if we do not overturn the Barker decision, the reality will be that of a man facing a firing squad armed with five guns. A bullet pierces his heart. Nobody knows which gun fired the bullet, so nobody is found guilty, but the truth is that they should all be found guilty.";[68] "on 3 May the House of Lords gave a judgment that would slash the amount of compensation that is paid to workers dying of asbestos-induced mesothelioma."[69]

    "My hon. Friend listed professional bodies, voluntary organisations, relatives, families and so on. Does he know any other three people, apart from the three Law Lords, who agree with the decision?"[70]

    "If we do nothing else as legislators, we should protect those vulnerable people who are suffering as a result of the Law Lords' decision—I sometimes wonder what planet they are on when they make such decisions, which are seriously offensive to people who are suffering from that terrible disease."[71]

  Though MPs are entitled to say what they like in Parliament, these are very strong words about a decision of the Appellate Committee of the House of Lords. To describe one of the House's decisions as having "no legitimacy" is a bold and potentially damaging claim. That said, it must be conceded that some MPs offered more balanced assessments: "The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent."[72] Similarly, Mr. Tim Boswell urged that it was necessary to "look at the underlying legal concepts and, at the same time, confront the facts concerning the individuals and their families with this terrible disease."[73]


  Following the debates and severe backbench pressure, a new clause was inserted into the Compensation Bill then before Parliament. This provision sought to reverse Barker. But the Government and Parliament were unduly focused on the particular problems faced by mesothelioma victims, without regard to the wider scope of the exception to causation principles seen in the cases of Fairchild and Barker. The short-title of the Act names one of its purposes as "to make provision about damages for mesothelioma". Subsections 3(1) and (2) make clear that the provision is further limited to asbestos-related mesothelioma. Incongruously, Part 1 of the Act, in which s. 3 is located is entitled "Standard of Care", when the section deals with causation (this is, of course, a result of the section being introduced at a late stage).

  S. 3 provides (so far as material):

  (1)  This section applies where—

    (a) a person ("the responsible person") has negligently or in breach of statutory duty caused or permitted another person ("the victim") to be exposed to asbestos,

    (b) the victim has contracted mesothelioma as a result of exposure to asbestos,

    (c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and

    (d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

  (2)  The responsible person shall be liable—

    (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos—

    (i)other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or

    (ii)by the responsible person in circumstances in which he has no liability in tort), and

    (b) jointly and severally with any other responsible person.

  S. 16(3) provides that "Section 3 shall be treated as having always had effect", but s. 16(4) provides that the section does not apply to claims settled or determined prior to 3 May 2006 (the date of the decision in Barker). This limitation is due to the fact that section aims to restore the pre-Barker assumption that liability under Fairchild was for the full extent of the damages, and so does not need to apply to cases prior to Barker. Thus the section applies retrospectively to all cases decided or settled between the decision in Barker and the enactment of the legislation.

  Judicial interpretations of the section have been limited to the context of mesothelioma claims, and so to speak of "reversing"[74] Barker may be accurate. However, there is a problem, which is alluded to by Sedley LJ:

    "In Barker v Corus UK Ltd [2006] UKHL 20 the House held liability for such wrongdoing to be several and not joint, with the result that recovery had to be proportioned to each defendant's contribution to the totality of the employee's exposure. This doctrine was reversed by s.3 of the Compensation Act 2006, which provides, in substance, that in mesothelioma cases each contributory wrongdoer is liable for the whole of the damage, but without prejudice to its right to recover contribution from other tortfeasors."[75]

  The difficulty is that the Act only applies to applications of the Fairchild principle in asbestos-related mesotheliona, whereas, although that was the factual matrix of the claims in Fairchild and Barker, the exception is expressly not limited to to such cases. Indeed, one of the key points in Lord Hoffmann's speech in Barker is the recantation of his view in Fairchild that the exception could only apply where there was a single causative agent:

    "…In my opinion it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way."[76]

  This means that Barker must still apply to similar non-asbestos cases, producing an unsatisfactory inconsistency in approach. The focus throughout the Commons and Lords debates was on asbestos-related mesothelioma. But mesothelioma may be caused by other things, but the Act would not apply to claims in such contexts, let alone claims arising under the Fairchild exception in very different situations. How, then, are we to interpret the common law in the future? It might be argued that, since Parliament is presumed to legislate in accordance with the common law, if Parliament only wished to prevent the effect of Barker in a particular situation in which it would apply, then so be it.

  But this position is far from satisfactory. At no point in the debates was the more general application of Barker even adverted to, let alone seriously considered. If the opposition was to the introduction of liability proportionate to contribution to risk where a defendant is liable under Fairchild, it is not easy to see why that should be limited to asbestos-related mesothelioma claims.[77] The Fairchild exception is based on justice and policy considerations, as those considerations should apply regardless of the circumstances. As I have written elsewhere: "The irony here is that the law has now been rendered even more incoherent than it was in Barker, as the general approach to liability, of risk as damage, is untouched by the Act. We have a statutory exception to a common law exception."[78]

  There is a clear tension between Parliament and the judiciary in this area, as illustrated by the attempts by some MPs to introduce legislation concerning pleural plaques, which the Court of Appeal had held did not constitute actionable damage.[79] The Government declined to support an amendment, because the House of Lords was to hear the appeal:

    Bridget Prentice: "I do not believe that it is right for the Government to pre-empt the Law Lords' consideration of those cases by legislating in that way at this time."

    Chris Bryant: "But if the judges get it wrong, which they seem to do quite often, what legislative remedy would be available in the fairly near future?"

    Bridget Prentice: "I hope that, with the debates going on here and in the other place and with the careful consideration of the judges, they do not get it wrong."[80]

  This is intemperate talk. It is implicit that if the judges do "get it wrong", a legislative reversal will be swift. It should be recognised that Parliament did have the benefit of helpful insights by David Howarth MP (a Liberal Democrat and a legal academic from the University of Cambridge) and Lord Goodhart (an eminent barrister and the son of a legal academic), but their focus was, understandably, on other issues which were in danger of being overlooked. David Howarth pointed out that any "reversal" of Barker had to consider the second question decided in the case, as to whether Fairchild could apply where the claimant himself was responsible for some of the exposure to asbestos.[81] Lord Goodhart was concerned with the retrospectivity in the Bill, but was satisfied that it was justified in the exceptional circumstances.[82] Lord Goodhart also made a crucial point, making clear that the House of Lords was entitled to reach the decision which it did in Barker:

    "It would be incorrect to say that the decision in Barker v Corus was wrong. In a sense, no decision of the Appellate Committee of your Lordships' House can be wrong; its members declare the law, and the law, as declared by them, is the law."[83]

  Yet even with these important interventions from learned lawyers, there was no mention of the broader causation issues. Instead, we had a former Lord Chancellor hoping that "legal jargon would in no way deprive those who worked in [the shipbuilding industry] of their undoubted rights."[84]

  It is fitting to close this section by quoting from Lord Hunt of Wirral, who spoke for the Opposition in the House of Lords debate on the amended Compensation Bill:

    "I have to say—in sorrow, not anger—that these past few days have not seen the parliamentary process in its best light. A judicial decision of the House's Appellate Committee was made in May; an amendment to overturn it first appeared on the Order Paper last Friday; it was then debated and adopted in another place on Monday; just two days later, here we are debating it in the expectation that it will receive Royal Assent in a matter of days. I fully accept the urgency of this matter—this disease will not indulge us in our deliberations and every day more people are struck down—but it might have been better for the Government to have spent the summer preparing a comprehensive Bill to overhaul the system in a holistic, coherent fashion rather than unbalancing the Bill in this way… We are legislating in haste. Let us hope that we do not repent at leisure."[85]


  It was mentioned above that, during the Parliamentary debates over Barker, some MPs sought to legislate concerning pleural plaques in response to a decision of the Court of Appeal in Rothwell.[86] The Government declined to pre-empt the decision of the House of Lords. In Johnston v NEI International Combustion Ltd,[87] the House confirmed the Court of Appeal's decision. Following that decision, many of the same MPs who were active in the Compensation Act debates sought its reversal through statute, relying on the precedent set by the Compensation Act.

  Two brief reflections are appropriate here on some apparent constitutional dangers. Firstly, it is important that emergency legislation to reverse specific decisions of the House of Lords (or the new Supreme Court) does not become the norm. Any such interventions are, and must be exceptional. Secondly, it is unwise and constitutionally dangerous for the threat of a legislative reversal to be in the minds of the judiciary when they are deciding cases.

  The Government has, however, been rather more circumspect in its response to Johnston. A consultation paper was produced by the Ministry of Justice (the relevant passages of which are included in an appendix below), expressing the provisional view that a legislative reaction to Johnston would not be appropriate. One of the reasons was the unanimity of the House in Johnston. If that is a threshold criterion, then there is a danger that it may have an insidious effect on judicial practice: whether a judge dissents or not should not be influenced by the prospect of inviting a legislative reversal of a majority decision of the highest court in the land. In Barker, Lord Rodger was the lone dissentient in the outcome. Another argument offered against reversing Johnston is the intricacy of the question of actionability of damage for the law of negligence. The issues involved in pleural plaques claims are indeed complex, but so, it has been argued, are the issues relating to causation and the actionability of "risk as damage" raised by Barker, which have wider implications than were appreciated during the passage of the Compensation Act.


  In Fairchild itself, Lord Nicholls cautioned that "[to] be acceptable the law must be coherent. It must be principled."[88] In an entirely different context, Lord Jauncey of Tullichettle observed:

    "If the law is to retain the respect of the public it should where possible walk hand in hand with common sense. There are, of course, occasions where legislation both domestic and European appear to make this impossible but where there is no such legislative inhibition the law should be interpreted and applied so far as possible to produce a result which accords with common sense."[89]

  It has been argued here that the legislative response to the decision in Barker v Corus, while commanding all-party support and motivated by understandable concerns for victims of an horrific disease, has introduced incoherence to the law. This incoherence resulted from an apparent lack of consideration of the nature of the exception recognised in Fairchild. While the Government's more measured response to Johnston is less alarming, it is hard to reconcile the new approach with the attitude adopted to Barker. It would appear that the Government is developing principles which it intends to determine when it is appropriate for Parliament to intervene to reverse a particular decision. During a debate on pleural plaques, the Minister justified the Government's disinclination to legislate, citing "the complexities of the problems involved [which] explains why we have taken far longer to come up with a plan for pleural plaques than for mesothelioma, which was a much more straightforward case."[90] I have sought to demonstrate here that the problems involved in Barker were far from straightforward. The legislative reversal of Barker was an unhappy intervention, based on an apparent misunderstanding of the complexities of the legal issues involved. To return to Blackstone, we have seen that, in s.3 of the Compensation Act 2006, we have a michieveous and inconsiderate alteration of the law.

13 March 2009

50   Lecturer in Law, University of Birmingham. Back

51   Blackstone, 1 Commentaries. For an eloquent argument about the duties incumbent upon legislatures, see J. Waldron, "Legislating with Integrity" (2003-04) 72 Fordham L. Rev. 373. Back

52   [2002] UKHL 22. Back

53   1973 SC (HL) 37, Ct Sess; [1973] 1 WLR 1; [1972] 3 All ER 1008, HL(Sc). Back

54   [2002] UKHL 22, at [9]. Back

55   [2006] UKHL 20. Back

56   See, for example, Holtby v Brigham & Cowan (Hull) Ltd [2000] EWCA Civ 111. Back

57   Employers' Liability Policy "Trigger" Litigation [2008] EWHC 2692 (QB) at [47]-[58], per Burton J. Back

58   See the work of my colleague Sarah Green: "Winner Takes All" (2004) 120 LQR 566 (on the Court of Appeal decision); "The Risk Pricing Principle: A Pragmatic Approach to Causation and Apportionment of Damages" Law, Probability and Risk 2005 4:159. See also Adam Kramer, "Smoothing the rough justice of the Fairchild principle" (2006) 122 LQR 547. Back

59   "Winner Takes All" (2004) 120 LQR 566 at 568. Back

60   J. Lee "Fidelity in interpretation: Lord Hoffmann and the Adventure of the Empty House" (2008) 28 Legal Studies 1. Back

61   [2006] UKHL 20 at [71]. Back

62   "Fidelity in interpretation: Lord Hoffmann and the Adventure of the Empty House" (2008) 28 Legal Studies 1 at 12. Back

63   An archive of the legislative history of the Act can be found at the Department for Constitutional Affairs website at

64   13 Jun 2006 : Column 213WH. Back

65   Judy Mallaber (Amber Valley) (Lab): 7 Jun 2006 : Column 245 (question to the Prime Minister). Back

66   Ian Stewart (Eccles) (Lab): 13 Jun 2006 : Column 200WH. Back

67   Tony Lloyd (Manchester Central) (Lab): 8 Jun 2006 : Column 454. Back

68   Mr. David Anderson (Blaydon) (Lab): 8 Jun 2006 : Column 498. Back

69   Jim Sheridan (Paisley and Renfrewshire, North) (Lab): 13 Jun 2006 : Column 192WH. Back

70   Mr. Jim Devine (Livingston) (Lab): 13 Jun 2006 : Column 194WH. Back

71   Jim Sheridan: 13 Jun 2006 : Column 195WH. Back

72   Mr. Michael Wills (North Swindon) (Lab): 13 Jun 2006 : Column 203WH (and generally Columns 202-4WH). Back

73   13 Jun 2006 : Columns 208WH (and generally Columns 208WH-211WH). Back

74   Silber J in Rice v Secretary of State for Business Enterprise & Regulatory Reform & Anor [2008] EWHC 3216 (QB) at [162]: "Mr. Kent accepts the argument that because Mr Rice's condition of mesothelioma was indivisible, the decision in Fairchild v Glenhaven Funeral Homes [2003] 1 AC 32 provides a special rule whereby each tortfeasor, who is responsible for materially increasing the risk, is treated as having caused the disease. In addition, section 3 of the Compensation Act 2006 (which reverses Barker v Corus [2006] 2 AC 572), provides that each tortfeasor is liable in full subject to any right of contribution from any other." Back

75   Sedley LJ in Brett v University of Reading [2007] EWCA Civ 88 at [2]. Back

76   Barker at [24]. Back

77   This problem has not yet been raised outside of examination questions and academic articles. Back

78   J. Lee "Fidelity in interpretation: Lord Hoffmann and the Adventure of the Empty House" (2008) 28 Legal Studies 1 at 12-13. Back

79   Rothwell v Chemical & Insulating Co. Ltd. & Anor [2006] EWCA Civ 27 (26 January 2006). Back

80   Bridget Prentice and Chris Bryant: 17 July 2006 : Column 49. Back

81   17 July 2006 : Column 43. Back

82   19 July 2006 : Columns 1319-1320. Back

83   19 July 2006 : Columns 1319. Back

84   Lord Mackay of Clashfern: 19 July 2006 : Column 1322. Back

85   Lord Hunt of Wirral: 19 July 2006 : Columns 1318-1319. Back

86   [2006] EWCA Civ 27. Back

87   [2007] UKHL 39 (17 October 2007). Back

88   [2002] UKHL 22 at 36. Back

89   Reeves v MPC [1999] 3 WLR 363 at 377. Back

90   Bridget Prentice: 4 Jun 2008 : Column 269WH. Back

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