Compensation Bill [Lords]

I do not agree that my new clause would have that effect. The hon. Gentleman will be aware that MMR cases have been litigated ad extenso for some considerable time without great success. I dealt with his other points in my earlier intervention. The provision is important because many cases result in fatality, as has been said, so if we can resolve the pleural plaques issue early, those fatal cases could be resolved quickly, too. As a consequence of the cases I mentioned, there has been a huge windfall for the insurance industry but a great loss for those who suffered from the negligence of their employers. The proper basis for an award in respect of pleural plaques is straightforward. We should have to show initial exposure to asbestos, coupled with ingestion, followed by permanent penetration of the chest by asbestos fibres—as happens with pleural plaques—that remained as a catalyst for future harm causing physiological damage, creating the risk of a future disease that can be assessed and engendering suffering in the form of anxiety. Putting all those things together gives us something that is rather more than an insignificant injury, and it should be compensatable. All the policy issues point in the same direction, too. The existence of pleural plaques requires that a person is exposed to asbestos in the first place. The large number of potential victims indicates that a significant section of society was unprotected, notwithstanding the legislation that was supposed to help at the time. This is not a case of employers being retrospectively made responsible for something for which they could not plan. The economic needs of employers have to be placed in the context of their obligations to society as a whole. There are no floodgates to be opened, because, until January this year, such claims had existed for more than 20 years without the courts being overwhelmed by litigation. The insurance industry has known of the problem—as has industry itself—for a long while and has had plenty of time to make provision for the potential cost of claims. To accept that organic change—which is what pleural plaques amounts to—is actionable is not to lower the burden of proof, because it will still be for the claimant to show that exposure was the fault of the employer. To accept the defendants’ arguments sends out the wrong signals: to employers about the need to take care; to the insurers about their tactical use of the justice system, as in the Grieves and Barker cases; and, more important, to the general public about the ability of the courts to deal with problems that they have been handling for 20 years without ever having been doubted. If we are concerned about certainty in the law, could there be a more important example than this one? We have to find the right balance between claimants and defendants and, as a consequence of that Court of Appeal judgment, the present balance in relation to pleural plaques is woefully wrong. My second new clause deals with the Crown Proceedings Act 1947. When my hon. Friend the Minister opened the debate, she gave the arguments that I was expecting. She referred to the debates in 1987 about retrospectivity. I remember them well, because I was lobbying for retrospectivity at the time, although not so much in the context of today’s debate. In 1987, the explosion of asbestos litigation had not really occurred; cases were just starting to come through, but not in the great volume that we see at present, and certainly not in relation to the problems of service personnel. The argument about limitation was primarily to do with ordinary accident claims where the limitation period would have been three years. If my new clause were accepted and implemented, it would not affect those cases, because they would be caught by the limitation period, which has long expired, post-1987. Furthermore, the provision does not deal with accidents; it is limited to disease, with particular reference to asbestos. My hon. Friend referred to the 2001 review. I remember lobbying the Ministry of Defence about that and listening to its rather spurious arguments that the benefits available through the war pensions scheme were equivalent to common law benefits if calculated over time. I am sorry to say that the MOD was not prepared to put those calculations to an actuarial assessment to find out who was right—it or me. I am pretty sure that I was right. My hon. Friend was correct in saying that the problem arises from section 10 of the Crown Proceedings Act 1947 and its replacement by the provisions of the Crown Proceedings (Armed Forces) Act 1987, which repealed it in large part. The best illustration of the problem is the 1988 case of Quinn v. the Ministry of Defence, where the claimant, during his service in the Royal Navy, had stripped asbestos insulation from boilers and pipes that caused both pleural thickening and mesothelioma. The Court of Appeal held that the Crown had immunity from litigation due to the 1947 Act, because the exposure to asbestos took place before 1987, even though the symptoms did not manifest themselves until long after. That is the basic problem with which we are grappling in relation to asbestos. We are trying to put right problems created by the law as it stood in the past and by exposure to diseases and hazards long ago. The difficulty is that that serviceman, like many others, was exposed during his service—for some of them it was during their national service—especially in the Royal Navy but in other branches of the forces, too, long before the 1987 Act was amended. Years later, they find that they have a medical condition, yet they have no legal redress whatever. That is a manifest injustice, which is made even more unjust by the sort of cases that I used to deal with on behalf of civilians who had worked in MOD dockyards side by side with servicemen stripping, repairing or refurbishing ships. The civilian was entitled to bring a claim for damages and obtain £150,000, or whatever the amount happened to be, as compensation for mesothelioma, yet the person at his side, who had done exactly the same job but happened to be wearing the Queen’s uniform, could not receive compensation. That is not fair or right, which is why I passionately believe that we must accept the proposals that I have promoted today. I hope that my hon. Friend will ask the MOD to reconsider its position. It is grossly unfair that people exposed to exactly the same hazard are treated so differently due to a mistake made in 1987 when people did not realise the problems that would occur 20 years later.