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

Annex 2


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  35.  The House of Lords judgment raises very complex issues. It was a unanimous decision based on fundamental principles of the law of negligence. Given the complexity of the issues and the strength of the findings of the Law Lords the Government considers that there would need to be very strong reasons to interfere with the Law Lords' decision. Two main arguments have been advanced against such a proposal.

  36.  First, to ensure that all those affected by the decision could receive compensation, the legislation would need to apply to the cases included in the decision itself and all cases where there had been no judgment or settlement prior to the House of Lords decision. This would include all those whose cases had been stayed pending the House of Lords decision or the Court of Appeal decision, or had been withdrawn/discontinued, or who had not commenced proceedings because of the Court of Appeal or House of Lords decision. Retrospective provisions of this nature could potentially raise issues in relation to the European Convention of Human Rights on the basis that they interfered with settled arrangements in a way which could be argued to breach the Convention. There is an argument that exceptionally a judgment can be overturned by primary legislative intervention. It would be necessary to assess the proportionality of any such interference and the likely effect any change would have, against the justification for the interference, especially given the very clear nature of the Law Lords' reasoning. Retrospective provisions were included in the Compensation Act 2006 to reverse the effect of the House of Lords judgment in Barker v Corus (and conjoined cases) in relation to who would be liable in mesothelioma claims. However, in that instance the Government made clear that these were highly exceptional circumstances affecting seriously ill claimants, and the degree of retrospectivity affected a very small number of cases over a very short period. The provisions simply removed a procedural hurdle to people getting compensation for mesothelioma quickly, and did not relate to making the condition compensatable in the first place.

  37.  Secondly, the determination as to whether a particular disease or condition constitutes an injury for which compensation is available has traditionally been a matter for the courts under the common law.

  38.  Interference with the fundamental principles on which the Law Lords' decision was based could have wider consequences and could be used as a precedent to argue for compensation in other situations. For example, it might lead to calls for compensation in other circumstances where no actionable damage has yet occurred, such as simply for the exposure to asbestos, and the worry from such exposure, regardless of whether this has resulted in any symptoms or injury.

  39.  It might also raise the possibility of compensation claims being made much more widely for the risk of an illness occurring or for worry that something might happen (for example in relation to the effects of passive smoking in the workplace or exposure to the sun in the building industry or other jobs involving outdoor work). If developments in the law of this nature occurred, this could considerably increase the level of litigation and the possibility of weak or spurious claims and could have damaging effects on business and the economy.

  40.  In addition, there is a risk that the desirability of raising awareness of the nature of pleural plaques and allaying unnecessary concerns could be undermined by the provision of compensation, as this could send mixed messages about the nature of the condition and increase concerns.


  42.  It is clear that the question of changing the law of negligence so that pleural plaques constitute actionable damage raises many complicated issues. While we invite views on overturning the judgment, we are not currently minded to favour this approach, not least because of the implications for the fundamental integrity of the law of negligence.

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