Damages (Asbestos-related Conditions) Bill [HL]

My Lords, it is always a huge pleasure to listen to the noble Lord, Lord Henley, but I had to remind myself that this is a Private Member’s Bill brought to this House by my noble friend Lady Quin. It is not a government Bill. In fact, I should not be the one who replies to these amendments. That is not my role. I am here to comment on the Government’s position with regard to these amendments, which I will do shortly. On the first group of amendments, I will say something about what has happened since Second Reading and today, as the noble Lord, Lord Addington, asked me to do. But this is not a government Bill and I want to make that absolutely clear from the start. Amendments to Clause 1 of my noble friend’s Bill would all limit the circumstances in which pleural plaques could be held to constitute actionable damage. The main focus of Clause 1 and the Bill as a whole is the subject of pleural plaques. As noble Lords will be aware, the Government have announced their decision on whether the House of Lords 2007 judgment on pleural plaques should be overturned so that the condition becomes compensatable again under the civil law of tort. That was done by way of a Written Ministerial Statement on 25 February. The announcement indicated that, on the basis of the medical evidence received, the Government are unable to conclude that the House of Lords decision on pleural plaques should be overturned at this time or that an open-ended, no-fault compensation scheme should be set up. While the current medical evidence is clear that pleural plaques are a marker of exposure to asbestos and that exposure to asbestos significantly increases the risk of asbestos-related disease, any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person’s exposure to asbestos rather than because of the plaques themselves. What I will say next is of great importance. If new medical or other significant evidence were to emerge, the Government would obviously reassess the situation. We recognise the importance of supporting people suffering from asbestos-related diseases and have announced a range of initiatives. One of those is the setting up of an extra-statutory scheme of fixed payments of £5,000 for individuals who had begun but not resolved a legal claim for compensation for pleural plaques at the time of the House of Lords ruling in October 2007. In our view, such people would have had an understandable expectation that their claim would result in compensation; indeed, many had made plans accordingly. The Government regard this as a unique situation and as not setting any precedent for any other circumstances where litigants may be disappointed. The scheme will apply to England and Wales and detailed arrangements relating to the operation of the scheme will be announced shortly. I was disappointed to hear that the Official Opposition do not support the scheme. That is only one measure in the range. Other initiatives are being taken forward by the Government to provide help and support to people suffering from asbestos-related diseases. A significant consequence of the House of Lords decision has been that people diagnosed with plaques can no longer bring proceedings to establish liability for negligent exposure to asbestos, which was useful for some individuals later diagnosed with mesothelioma, as prior establishment of liability expedited their new compensation claim. That is of particular importance with conditions such as mesothelioma, as patients frequently die very soon after diagnosis, leaving very little time to trace records and obtain compensation. It is imperative that steps are taken to improve the speed of payment for compensation claims for mesothelioma and other serious asbestos-related diseases. Therefore, we are establishing a working group composed of claimants’ solicitors, trade unions, insurers, the judiciary and civil servants to examine litigation practices and procedures for compensation claims relating to mesothelioma and to identify options for streamlining them in order to reduce the time taken to conclude cases. We will also be considering the need for changes to the substantive law. Further to those initiatives, we are taking action to deal with the problem of people who develop serious asbestos-related disease but are unable to obtain full compensation because they cannot trace the employer’s insurer. That problem has been recognised for some time and, since 1999, the Association of British Insurers and the Lloyd’s Market Association have committed to a voluntary code of practice for tracing EL insurance policies. However, while the tracing service has led to some improvements, many individuals were still left without help—3,210 in 2008. The situation is not satisfactory and the Government are therefore consulting on two proposals to improve matters. The essential first step is the creation of a UK-wide employers’ liability tracing office, or ELTO, to manage an electronic database of EL policies and to operate the existing tracing services. We are grateful that the Association of British Insurers has agreed to drive forward that work to help claimants and their representatives, informed by the outcome of the consultation. The new office will initially be launched on a voluntary basis but we would ultimately like it to be a requirement on all insurers to publish relevant policy details with the ELTO. We have every expectation that that will deliver significant results, creating a database of records that will help many thousands of people to trace policies and receive compensation in the future. However, even with an ELTO, there will be some people, especially those who suffer from long-tail diseases such as mesothelioma, who are unable to trace their insurance records and thus will be denied full compensation. That brings me to our second decision. We therefore propose to establish an employers’ liability insurers bureau, or ELIB, providing a compensation fund of last resort for individuals throughout the UK who are unable to trace EL insurance records. The consultation published on 10 February examines whether the employers’ liability insurance bureau should cover the impact of an ELIB on insurers and employers, how much should be paid by way of compensation, limitations on claiming from the ELIB and what more can be done to ensure that employers who are legally obliged to obtain ELCI do so. The Government will consider fully the responses to the consultation before determining the next steps towards the introduction of an employers’ liability insurance bureau. A mandatory ELTO and ELIB should, in time, provide a comprehensive framework for supporting people who develop serious asbestos-related disease. However, in recognition of the need for action now, the Government are taking a series of steps to increase the upfront payments currently made to mesothelioma sufferers and their dependants. The Government will increase payments made under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 by 1.5 per cent even though, as the Committee knows, the retail prices index showed negative growth. In addition, we will increase payments due to mesothelioma under the Child Maintenance and Other Payments Act 2008 so that they equal payments made under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. Further, the Secretary of State for Works and Pensions is amending regulations to increase payments to all dependants under the 1979 Act and the 2008 Act by up to £5,000 so that their awards are closer to those paid to sufferers. All those increases will come into effect on 1 April 2010. The fact that the UK has one of the highest rates of death from mesothelioma in the world is a legacy of our industrial past and the part that asbestos played in it. Just as we were a global leader in the asbestos industry, so we must now become a global leader in research into asbestos-related disease. We have received strong representations from clinicians and others for the creation of a national centre for asbestos-related disease—a collaborative network of funded researchers whose core purpose would be to advance medical research into the prevention, cure and alleviation of asbestos-related disease, primarily mesothelioma. There is now widespread recognition, including within the medical research community, that, while there has been considerable investment in cancer research generally, not enough has been focused on the study of cancers of the lung, including mesothelioma, yet mesothelioma is now the 12th most common cancer killer in men and the cancer of most rapidly increasing incidence in women. We are determined to expand research in this area. My right honourable friend the Secretary of State for Health has therefore asked his officials in the Department of Health to consider and advise on how best to create a world-leading network of medical research practitioners for asbestos-related disease. Based on their recommendations, and on advice from the National Cancer Research Institute about research priorities, we will set out how the Government will support an increase in research investment in this area. In addition, the insurance industry will contribute £3 million towards research into asbestos-related disease. We believe that these measures will provide real and significant benefits for people suffering from mesothelioma and other asbestos-related disease. I have taken some time to describe the Government’s position. I will not take nearly as much time in responding on behalf of the Government on other groups of amendments. The noble Lord, Lord Henley, asked a number of significant questions, including some relating to Second Reading. I shall deal with some of them quickly and I will look at Hansard carefully and respond to him in writing on the others. At Second Reading, his first question was: ""Will the noble Lord confirm that those are the figures provided by the department? Does it still stick with them".—[Official Report, 5/2/10; col. 459.]" Today he asked whether there is an update on the cost estimates of pleural plaques. Further work has been undertaken on the cost estimates in the consultation paper and I will write to him with more detail. I want to make it absolutely clear that the Government’s decision, which I have effectively repeated today, was taken on the basis of the medical evidence on pleural plaques and not on the costs involved, although they clearly had to be taken into consideration. The noble Lord’s second question was about how the retrospective nature of the Bill affects the estimates of what the costs might be. The costs in the impact assessment included the retrospective costs. His next question, which he said might be more for my noble friend Lady Quin, was about giving the Committee an idea of how quantum would have to be decided in each case if the Bill were to be passed. It is clearly a question for my noble friend. His fourth question was about the position in Scotland. A decision of the High Court has been appealed in Scotland and is to be considered in due course. His fifth question was whether we have any intention of, or suggestions to make about, speeding up the process. I hope that I answered that in outlining what the Written Ministerial Statement said last week. The noble Lord’s other questions included whether the extra-statutory scheme will open the floodgates for other symptomless conditions. It will not, because there are no other symptomless conditions that have in law been regarded as compensatable damage for a long and settled period. There is no analogy with the symptomless condition for which compensation has never been recoverable in law. The Government’s position on the noble Lord’s amendments is that, because of the decision that we have made, we cannot support the Bill or any amendments that are made to it. However, we do not oppose the Bill, either. We remain neutral, which is the normal position of the Government when Private Members’ Bills are brought to this Chamber. However, I have to say that the Government have huge affection and respect for my noble friend in her work on this matter.