My Lords, I speak in support of these amendments to the extent that they improve the Bill. I am pleased to have been of some assistance to the noble Lord, Lord Freud, in improving the Bill. I venture to suggest that at one stage he
thought that I was perhaps more of an irritation than an assistance on Clause 2. However, important issues still need to be addressed and, if your Lordships’ House will bear with me for a couple of minutes, I shall explain.
My noble friend Lord McKenzie of Luton first raised concerns about Clause 2 when he moved Amendment 12 in Committee on 5 June. My noble friend’s contribution spurred my interest, and I recollect making some points of observation in debate. In his response the noble Lord, Lord Freud, initially dismissed these points, but as the debate became more engaged he promised to write. That was because he found himself—I think I quote him properly—“in deep legal territory”, or he was concerned that he might find himself in deep legal territory. He promised to write, and on 7 June he did so. He dismissed my concerns again, but I persisted. Thanks to the engagement of the Bill team, in particular the Bill manager, I was able to find a route of communication with parliamentary counsel about my concerns in relation to Clause 2.
I will not take up the House’s time by going into these in detail, but I remain unconvinced that even an amended paragraph (c) of Clause 2(1) is necessary, except in the most remote, hypothetical circumstances. I commend the ingenuity of those supporting the Minister in trying to find sets of circumstances which justify the words in the first draft of the Bill. In my view, the justifications which I was given were either wrong or showed a repeated misunderstanding of the interaction of other parts of Clause 2 with that very paragraph or, as we got deeper into the weeds in this, a misunderstanding of the relationship between Clause 10 and Clause 2, and then a misunderstanding of the relationship between Clause 2 and its provisions, and the draft set of rules which we were then given. I presume they will now form the template for the regulations which will set out the scheme.
At every point at which a justification was made for the wording there was an inconsistency, which I pointed out. However, having said that, the clarification which the Minister gave in his letter of 7 June that the phrase “the relevant employer” in Clause 2(1)(c) was a reference to the same “a relevant employer” in paragraph (a) of the same subsection, perhaps deals with the issue, at least to some extent. If the Minister finds some way of putting that explanation on the record, it may be sufficient to see off my concerns in the short term. In any event, at this stage I do not intend to persist, now that the paragraph has been divided and recast.
Amendment 1, which would put new paragraph (ca) in Clause 2(1), and Amendment 3, which would put new paragraph (ba) in Clause 3(1), are improvements. I support them without any qualification because they deal directly with my concerns about cases where an employee had multiple employers. It is a simple necessity that at the time of application the employee-applicant, or an eligible dependant, must be unable to bring an action against any of the employers or relevant insurers.
I move now to the consequences of Amendment 5. Amendment 5 is extremely interesting. It would amend Clause 18(3) so that it reads as follows:
“The scheme may specify circumstances in which a person is, or is not, to be treated as able to bring an action for the purposes of section 2(1)(ca) or 3(1)(ba)”.
This is potentially a very significant provision. Remarkably, despite all of the scrutiny it has remained totally unscrutinised. It has now been brought to my attention because of this amendment. I presume that these circumstances will now require to be set out in the regulations which will apply to the scheme—in other words, what were the draft rules that we were given copies of. I went through the draft rules in detail after I received this amendment and could find no references at all to any such circumstances. It seems therefore that a very important part of the structure of this scheme has not been subject to any form of parliamentary scrutiny. I hope that this will be corrected when the Bill goes to the other place. If this provision is necessary, the circumstances that are to be in the scheme ought to be shown to Parliament before parliamentary scrutiny of the Bill is concluded, which it has not been.
Finally, the most important point that has arisen from my engagement beyond Parliament with the Bill team is that during my conversations and in correspondence with those advising the Minister it was explained to me that it was the Government’s intention that, when a person was diagnosed with diffuse mesothelioma on or after 25 July 2012 but before the Bill comes into force as an Act, application to the scheme would have to be made and received by the scheme administrator not later than three years after the date on which it comes into force, not three years from 25 July 2012. That would be a very welcome relaxation of the limitation rules, given the nature of this dreadful disease and how quickly it can become fatal.
Unfortunately, the draft rules make no mention of that relaxation and there is no such relaxation anywhere in the Bill. However, there is a very specific relaxation in draft rule 7, where a person has died on or after 25 July 2012 and the claim is made by an eligible dependant. That very significant concession is known to me and is now known to all Members of your Lordships’ House. It requires some parliamentary acknowledgement or commitment, at the very least. More than that, it requires some commitment that the regulations will deal with this in an explicit way.
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