Mesothelioma Bill [HL]

Baroness Sherlock Excerpts

Monday 20th May 2013 Lords Chamber

[Baroness Sherlock]

My Lords, this has been a very rich debate, suffused with not only the expertise but the passion and compassion for which the House is widely celebrated. It has been a privilege to hear personal stories about people who have been affected by mesothelioma: to hear of lives cut short and ending avoidably in terrible suffering. I am grateful to all noble Lords who were willing to share those experiences, as well as for the knowledge that they brought.

I acknowledge once again what an extraordinary range of people we have in this House. I pay tribute to all those who in many different ways have been part of bringing the story to this stage of its development: to those who campaigned in Parliament, such as the noble Lord, Lord Alton, who has done so much to raise the issue, and the noble Lord, Lord Avebury; and to those who have been Ministers, such as my noble friend Lord McKenzie in recent times and, in times gone by, my noble friend Lord Jones, whom I thank for such a passionate speech and for bringing us back to the point of remembering what this means for those who are going through such pain and suffering at the moment.

I pay tribute also to my noble friend Lady Donaghy and other trade unionists for reminding us of everything the trade unions have done, and to my noble friends Lord Whitty, Lord Monks and others who have been part of the story of trade unions getting behind efforts to try to change this country’s attitude that nothing could be done and prove that perhaps it could. I pay tribute also to the Minister for his personal commitment and—I suspect that my noble friend Lord Whitty was right about this—for conducting some pretty tough negotiations. We hope to give power to his elbow so that he can go back and make them more successful still.

There has been an extraordinary unanimity round the Chamber on almost every Bench on what the top issues will be on which the Minister will have to convince us as the Bill goes through its remaining stages. In true Eurovision style, the top three are already predictable. The first is the scope of the Bill. I understand the pressures that may have led the Government to settle where they have landed. The Minister argued that the Bill’s focus on mesothelioma was based on the fact that it is a terrible disease that is almost always fatal, and that is exclusively caused by exposure to asbestos. That much is uncontested. However, the fact that mesothelioma sufferers will have a case for compensation does not mean that others do not also have such a case, and does not take away from the fact that there are still too many victims of other long-latency asbestos-related conditions who should be entitled to compensation but cannot find either an employer or an insurer to pursue. Of course, their claims would need to be tested, but I see that the Government are not minded to go down that road.

I understand the attractions of clarity and moving forward with the support of stakeholders, but I hope that the Minister has heard the breadth and strength of feeling from all around the House that the Bill needs not only to address this pressing problem but, as my noble friend Lord Browne put it, needs to be fair. It will not be perceived to be fair if it cannot at least set out the way in which the Government will move forward. If the Minister feels that the Bill is not the route forward for that, I hope that he will be able to tell us what the way forward will be, so that by the time we conclude these proceedings we will be able to give some comfort to those who may otherwise feel that they have been unfairly ignored in the process.

I also hope that in Committee we will have a chance to discuss what can be done to try to make the process of moving on in other areas more systematic. I was very struck by the point made by my noble friend Lady Taylor about the piecemeal way in which steps were taken in the past. It would be very helpful if we could set out a way forward that did not involve constantly being dragged step by step into solving problems that will one day have to be solved anyway. Perhaps this time we could be the House that breaks through that way of doing things and tries to find a more systematic way of planning for the future.

The second question on which there is almost total unanimity is why the cut-off point is fixed at 25 July 2012. This point was raised by many noble Lords. Suggestions were made that it could be set at February 2010, when the consultation opened, or May 2010 when it closed. The Asbestos Victims Support Groups Forum suggested that a three-year rule in law should be applied. Whatever the Minister comes forward with, it would be helpful if he would take the House carefully through his reasoning for July 2012, and against having an earlier commencement date. From the reaction of noble Lords around the House, it would seem that simply feeling that one could not leave it open-ended was not enough of an answer to the question: why this, why now and why only then?

The third big question is the crucial question of the proposed nature and level of compensation. My noble friend Lord Browne of Ladyton raised some important questions about the way in which damages are constructed. I hope the Minister can set out some more information for us on the record about that, about how he came to this space—in particular, the question of why compensation is likely to end up being set at 70% of the average damages being awarded by the civil courts. I confess I have not yet heard a persuasive argument for that. I understand that the Minister seemed to be saying—and it is certainly what the briefing said—that the rationale is that an incentive of some sort is needed to ensure that this is genuinely a scheme of last resort. However, my noble friend Lord McKenzie raised the telling question: since claimants can by definition access the scheme only if their former employer’s insurers cannot be traced, and since the body will actually have an obligation to help people trace an employer, why is any incentive needed? The door is only open to people who meet this condition, so they surely do not need to be bribed to step through it as well—or in this case, rather than being bribed, they are facing a hefty financial penalty if they are unable to identify a provider of employers’ liability insurance through no fault of their own, a point made very tellingly by many noble Lords.

There is then the question of who runs the scheme. A number of noble Lords have made the point that concerns are being heard abroad that it might be the insurance industry itself that will run the scheme. The Bill, of course, carefully sets out two options: one of having the scheme run in-house, the other run externally by a scheme operator. However, it is clear in the briefing that the plan is that the insurance industry should run it. It is, we are told, already in the process of setting up a scheme in anticipation of the Bill becoming law, which could then be up and running right away on day one, on the assumption that the scheme meets the criteria set out by DWP. However, as my noble friends Lord McKenzie and Lady Donaghy and others have pointed out, there is a potential conflict of interest here if the same industry that has to fund successful claims not merely underwrites but administers the compensation scheme. Aside from the actual conflict, is the Minister not concerned that the perception of a conflict may be a cause of concern to victims and their families? Have the Government done any research to find out how claimants would view such a provision, having the scheme run by the very industry with which they have to join battle?

In particular, could the Minister tell the House whether he considered any alternatives? Would it not have been better, perhaps, to have had an arrangement like that for the FiSMA bodies, such as the Financial Ombudsman Service—and I declare my interest as a non-executive director of that body—or the Financial Services Compensation Scheme, mentioned by the noble Lord, Lord Avebury? Both of those bodies are set up in statute and funded by levies on the financial services industry, but they are administered by independent scheme operators overseen by boards. The job of the board is to guarantee the independence of the scheme, both from consumers and from the firms that underwrite the scheme. Therefore, I would be grateful if the Minister could tell me whether he looked at that as an alternative, and, if so, why he rejected it.

Moreover, I would be very interested to hear the Minister’s response to the matters raised by my noble friends Lord Howarth of Newport and Lord Browne about the question of benefits. Why do the Government see this position as analogous to that of a compensation payment, an interesting point made by my noble friend Lord Browne, who did indeed manage to introduce additional material very late in the day? Also, my noble friend Lord Howarth asked whether there would be any caps on the amount that can be clawed back, what particular benefits are in that situation—will it be all benefits, including carers’ benefits?—and what happens to the way in which the money is treated? Finally, there was the very important question of research, raised by the noble Lords, Lord Alton and Lord Monks, the noble Baroness, Lady Masham, my noble friend Lord McKenzie and others. I very much hope that we can return to that in some detail in Committee.

I do not want to detain the House any further at this time. This is a Bill whose purpose we support fully, as one would expect, since the previous Labour Government in the person of my noble friend Lord McKenzie started the consultation process which brought us at last to this point. Action has long been demanded by victims, their families and the organisations that have supported them over many years. We owe it to them to act swiftly, but we also owe it to them to get it right. We owe it to the people who depend upon this fund to scrutinise this legislation as well as we can to ensure that it is robust and that the redress it provides will meet the needs placed upon it. Furthermore, I think we should take a moment to reflect on the terrible consequences of a failure to take seriously the health and safety of workers and, indeed, citizens, a point made by my noble friend Lord Giddens, to whom thanks are due for a very interesting exposition of how we came to this point. I was very taken by his suggestion about the idea of a pro-active scanning forward. I would be interested to hear the Minister’s response to that. How do we learn not just from what has happened but learn lessons for the future?

There is a great temptation in modern life to complain about health and safety as though somehow it is there solely as a means for bureaucrats to stop any of us having any fun. The next time any of us is tempted to complain about there being too much health and safety, we might remember the legacy of the days when there was precious little of either health or safety in too many workplaces.