Damages (Asbestos-related Conditions) Bill [HL]

My Lords, in moving Amendment 1, I wish to speak also to Amendments 2, 3 and 4, and to Clause 1 stand part. Before I address the amendments, I wish to say a word or two about why I have put down a relatively large number of amendments to this relatively brief Private Member’s Bill. I asked five very specific questions at Second Reading, to which I had hoped to receive answers. The noble Lord, Lord Tunnicliffe, who responded on that occasion, said: ""The noble Lord, Lord Henley, asked five questions, to which I do not have answers, other than that the Scottish judgment is, as he said, currently being appealed and it would be inappropriate for me to comment on it. The essential point about the speed at which the asbestos-related claims I have alluded to are considered, and his other questions, will be answered when we complete the process of consultation and publish the results. We hope that will happen shortly".—[Official Report, 5/02/10; col. 461.]" I have not yet received a letter from the noble Lord answering my questions. It is now something of the order of a month since Second Reading. However, we have since had a partial response from the Government in the form of the announcement made by the Secretary of State and Lord Chancellor a week ago about their response to the Bill and to the consultation. However, that seems to me only a partial response. I imagine that we will get a fuller response in due course. We might get some of that response this afternoon because one of the reasons I have tabled these amendments is to find out exactly what the Government’s intentions are. I would still appreciate a letter responding to my five questions, but no doubt the noble Lord, Lord Tunnicliffe, is working on that as we speak. Amendment 1 states, ""only where the person first discovered the presence of the pleural plaques before 17th October 2007"." I believe that that was the date of the House of Lords judgment that this Bill has inspired. The amendment is simply intended to raise queries about which cases should be in scope for either a scheme or for legislation of the sort that is before us. Amendment 2 would insert, ""only where the presence of the pleural plaques was discovered in an examination by a registered medical practitioner"." It is intended to highlight the problem that most people find out they have plaques only via claims farmers scouring the traditional heavy industry areas and/or advertising to push people to have X-rays, or, more often, CT scans, to detect the plaques. The Minister will remember—at least, I hope he does—that in December 2007 the twelfth report of the Committee on Medical Aspects of Radiation in the Environment was issued. That report was designed to look at the impact of personally initiated, X-ray computed tomography scanning for the health assessment of asymptomatic individuals. It made clear that CT scans for non-therapeutic reasons are not advisable. The report stated, at paragraph 1.10: ""The level of radiation received by the individual is an additional concern, particularly with whole body CT scanning. For an asymptomatic individual the potential risk may outweigh the benefits. The dose received by an individual can vary substantially depending on the type of scan employed and the machine and protocol used"." Claims should be permitted only if they have come through medical referral rather than through marketing by lawyers or intermediaries. Amendment 3 is a probing amendment. It states, ""only where the person suffers physical symptoms directly attributable to the presence of the pleural plaques"." This probing amendment is targeted at the medical reasons why the Government are still saying that some people with no symptoms should get compensation. As we have noted, the instance of pleural plaque cases with symptoms is very low, and such cases will still be entitled to compensation. Amendment 4 would insert, ""only where the person has sustained a recognised psychiatric condition directly attributable to the discovery of the presence of pleural plaques"." The noble Lord will remember that the Grieves case was also dismissed by the Lords as part of the test cases. In this case there was genuine psychiatric illness, whereas most of those with pleural plaques are simply anxious about having any recognised medical condition. Should this be the basis for compensation? Those are the specific issues which the Minister may wish to address in the general debate that I am also proposing on Clause 1 stand part. Taking out this clause would remove from the Bill the provision which would overturn the judgment of the House of Lords in those test cases in October 2007. The Government announced very quickly after that decision—as early as 31 October 2007—that they did not consider that the judgment should be overturned. However, that was a long time ago on any view, and well before the run-up to a general election. The Government’s long-awaited announcement last week that they still see no basis for overturning the judgment is welcome. The Secretary of State’s Written Statement helpfully summarised the position on the medical evidence, which is the key to understanding the House of Lords judgment and why it should not be overturned. Although the presence of pleural plaques is an indicator that a person has been exposed to asbestos, most people who were exposed more than minimally are well aware of that exposure anyway. More importantly, the Government confirmed that, ""in the great majority of cases pleural plaques do not in themselves produce any significant physiological change or loss of lung function, and only very rarely give rise to physical symptoms. In such rare cases it is still possible for individuals to bring a civil claim for damages"." The Government also confirmed that there was, ""no available medical evidence to show that pleural plaques become malignant or lead to mesothelioma or other asbestos-related diseases. Current evidence indicates that it is a person's exposure to asbestos that produces any increased risk of developing a serious asbestos-related disease rather than the pleural plaques themselves"." That must come as a great relief to many people. Thus far, I agree with the Government’s position. However, the proposal that there should be an extra-statutory scheme to compensate those individuals, ""who had already begun, but not resolved, a legal claim for compensation for pleural plaques at the time of the Law Lords' ruling in October 2007"," is more difficult to understand. I confess to having reservations about this. The Written Statement attempts to justify this move on the basis that: ""Such people would have had an understandable expectation that their claim would result in compensation and many had made plans accordingly".—[Official Report, 25/2/10; col. WS 141-44.]" Is the Minister saying that these people must have already, as it were, spent their compensation and in some way were out of pocket? This whole "understandable expectation" line smacks of a compensation culture and threatens to set a curious and potentially dangerous precedent. The Court of Appeal and the House of Lords were rightly concerned about the wider effects on society of permitting claims for a condition that results in no symptoms and no risk of future illness. I should be interested to hear from the Minister how he believes the Government’s latest stance on pleural plaques will not in some way open the floodgates for them to compensate for other conditions that are symptomless. If the medical evidence supports the House of Lords decision on the law, why are the Government so keen for payments to be made? The proposal for a limited no-fault compensation scheme is not entirely new. This was outlined in the Government’s consultation paper in July 2008. As there has never been a properly published government response, other than the Statement of last week, we do not know exactly what the anticipated impact of this proposal would be. Again, I would welcome the Minister’s comments on various specific points made in the consultation paper. At paragraph 45 of the consultation paper, the Ministry said: ""There is no definitive information on either the total number of people with confirmed diagnoses of pleural plaques. … Estimates regarding the potential numbers of people who would be eligible for financial support are therefore highly uncertain, as they depend on a number of assumptions that cannot be verified … This uncertainty … translates into a wide range for the potential costs of each of the options of financial support set out in the accompanying Initial Impact Assessment, as on the basis of current information it is not possible to provide narrower ranges"." I very much hope the Minister will reassure the Committee that much better information is now available as to the potential impact. At paragraph 54 of the consultation paper, the department summarised the potential cost of the limited scheme option as between £52 million and £196 million, excluding set-up costs. The paper states: ""Estimates of the number of people who have been diagnosed with pleural plaques before the House of Lords decision are subject to a high degree of uncertainty"." The range is obviously very wide, and the Ministry of Justice actually committed to do better. Paragraph 54 also states: ""During the course of this consultation the Government will undertake further analysis in relation to the number of people diagnosed before the Law Lords’ decision, better to inform the evidence base"." I hope that the Minister can enlighten us on how far they got. I also repeat the question that I asked at Second Reading about the range of costs, not just to the Government but to the entire industry, estimates of which are between £4 billion and £28 billion. I think that those figures came from the consultation paper. Can the Government confirm that? What are their estimates now compared with the previous wide range of estimates? At paragraph 48 of the initial impact assessment, the Ministry gave some indication of the number of claims that formed the basis of the estimate of between £52 million and £196 million. It stated that there would be between 11,000 and 41,200 potential applicants under a limited scheme. Neither of those figures seems to be particularly scientific; again, the range is very wide and it is obvious from the impact assessment that a number of assumptions were made which could be significantly out. Can the Minister update us on the estimated claim numbers? A range of between £52 million and £196 million represents quite a lot of taxpayers’ money for the Government to commit themselves to, even on those limited assumptions. The Minister has a duty to inform the House about which department’s budget will be used to meet both the direct costs of the scheme and the set-up and administration costs. If the money is to come from his department, which front-line services will have to be cut in order to make ends meet? This would not be the first time that this Government have committed themselves to an extra-statutory scheme for compensating people who are not necessarily suffering. In 1999, the then Department of Trade and Industry put together what are collectively known as the coal health compensation schemes. There has been much talk in this House and another place about the fallout from those schemes, both in terms of the massive underestimating of the potential claim numbers and overall costs, and the massive amounts of money received by certain claimant lawyers under the scheme. The Minister may remember that. Because of the fallout from those schemes, the National Audit Office published a report in July 2007 into the workings of the schemes, and it made a number of observations on lessons for the future. It highlighted a long list of issues to be taken into account whenever a department was asked to take forward a similar compensation scheme in the future. Having regard to that list, will the Minister outline what action his department has taken on those eight key points? They were: first, to monitor and manage the risks; secondly, to establish a project board; thirdly, to conduct a full options appraisal; fourthly, to put resources in place sufficiently early; fifthly, to put a strategy in place for managing the expectations of claimants and stakeholders; sixthly, to obtain actuarial advice; seventhly, to review the quality of evidence likely to be available to support individual claims; and, eighthly, to create an implementation strategy. Those are just some of the recommendations. We all remember how badly burnt the Department of Trade and Industry was on the coal schemes. The Ministry of Justice must make sure that it, or whichever department has to pay for this scheme, is not burnt too. That is a reasonable number of questions to put to the Minister on this first clause. I hope that he will in due course address them and shed some light on the Government’s announcement last week. I beg to move.