My Lords, I, too, support the amendments in this group and endorse everything that my noble friend on the Front Bench said in support of them. In doing so, I express my appreciation for the achievement of the Minister in nudging the percentage up to 75%. It is a significant advance and I appreciate all the effort that must have gone into achieving it. However, I am afraid that it is still not enough.
I will say a few additional words in support of Amendment 13, to which I added my name. It sets out a mechanism to try to ensure that the Bill can be a final settlement of the issue. It does so by setting out to ensure a continuing equitable balance between the various interests at play. We have heard at all stages of the Bill that there is strong support in your Lordships’ House for the percentage paid to be not less than 100% of the average damages recovered by claimants in mesothelioma cases, and for the start of the scheme to be 10 February 2010. However, at the same time, I think that your Lordships’ House recognises the strenuous efforts made by the Minister to achieve a settlement with insurers that could be delivered rapidly.
With respect to my noble friend Lord Browne, the issue is not so much the processes of Parliament as how obstructive the insurers are going to be. I appreciate that there is a risk of unpicking what the Minister has achieved and encouraging insurers to dig their heels in and be obstructive. We have seen too much evidence of the obstructive approach that they adopted in the past for that not to be a risk. Nevertheless, we can improve the Bill further, and this amendment seeks to do that.
As I understand it, the basis of the settlement, which can be achieved rapidly, is that costs should not exceed 3% of the levy. That is the point at which insurers estimate that they would have to pass on costs to employers. It is the actuarial assumptions made by insurers on this basis that have reduced the figure to less than 100% for payments under the scheme, and set the start date at 25 July 2012. Those actuarial assumptions are just assumptions. They could be questioned, and, as we have already heard, the Government’s assumptions are different. However, it may turn out that they are accurate. All assumptions at this stage can be only a best guess.
If it does turn out that these actuarial assumptions by the insurers have overestimated the cost of the scheme, the amendment will address that eventuality. If, over time, once the smoothing period is over, the cost of the scheme amounts to less than the 3% of the levy that insurers are currently willing to contribute, the end result will be that insurers will up paying less than they are currently prepared to pay—in effect, they will save money—while victims of mesothelioma will continue to receive less than many, and perhaps most, in your Lordships’ House and outside it believe that they should receive. Such an outcome would be manifestly unjust, and would lead to considerable pressure in Parliament for new legislation to put right such injustice.
The amendment seeks to avoid that situation, and all the further delays and uncertainty for victims of this disease that would result, by ensuring that such an injustice will not occur. It places no new burdens on insurers at all; it merely seeks to ensure that, whatever the outcome of the actuarial assumptions that underpin
the current provisions of the Bill, insurers will pay what they are currently prepared to pay. It offers the victims of this dreadful disease the comfort that, if there is more money available as a result of those assumptions turning out to be inaccurate, it is those victims that will get it and not the insurers. This avoids the prospect of future wrangling and disputes, which I would have thought the insurers would certainly welcome. It would be in nobody’s interest to reopen the matter in this way, and this amendment offers a continuing equitable outcome. I hope that it will find favour with the Government.
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