Mesothelioma Bill [HL]

Lord Browne of Ladyton Excerpts

Monday 20th May 2013 Lords Chamber

[Lord Browne of Ladyton]

My Lords, it is a pleasure to follow the noble Lord, Lord Wigley. Characteristically, despite how late his contribution has come in the debate, he has identified fresh points that have not been raised by other speakers. That has added significantly to our consideration of the Bill and challenges me to do the same. I shall try to approach the next few minutes in a way that is not repetitive, but I start by joining the Minister in his generous words of praise for my noble friend Lord McKenzie of Luton and his consistent contribution to advancing the cause of mesothelioma and other asbestos sufferers—indeed, to health and safety law in general.

I couple the Minister in that praise, because I know from my own experience what challenges he faced in trying to deal with the insurance industry over this very issue. For a short time in 2003, I was the Minister for Employment and had responsibility for health and safety. I came into the job at the beginning of a summer when there genuinely was a market failure in relation to compulsory employer’s liability insurance, and I know exactly the nature of the challenge that he faced with the insurance industry over this insurance. I pay tribute to him for getting the Bill before us in this fashion.

Having said that, though—taking on board all his entreaties that there are challenges of pragmatism and speed, the fact that we must bear in mind the nature of this filthy disease and its effect on people, the fact that there are people out there who are waiting for justice and have been for some time, and that any delay will mean that people will die before they get it—we still have an obligation to be fair. Fairness and justice are important considerations in what we are doing with this legislation. Having listened to the debate thus far, I think that there is a very strong thread running through it: the judgment as to whether a payment scheme such as this, as opposed to a compensation scheme, serves justice has to be seen in a much broader context than those challenges, with respect to the Minister and the papers that are before us. It has to be seen in the broader context of what can be done to improve the ability of people to get full compensation through our courts.

That leads me to a point that I cannot resist the temptation to make, just because of the Minister’s initial words in introducing the Bill. He said in an early sentence—indeed, it may have been the second sentence that he uttered—that where a person is injured by negligence or a breach of statutory duty, that person should be compensated by their employer. I agree with them. I regret that that statement of principle did not inform the provisions of the Enterprise and Regulatory Reform Act, which we passed this year and which broke the link between breach of statutory duty and compensation by an employer. I invite the Minister to reflect on those words in a broader context, rather than just in relation to the matters before your Lordships’ House this evening.

The question of whether we are being just has to be seen in the context of why we need to address this issue in this way, at this stage. I do not intend to repeat the words of other noble Lords, including the noble Lords, Lord Alton of Liverpool and Lord Avebury, and my noble friend Lord Giddens, who pointed out in short that, for decades, employers, and indeed Governments, knew exactly what the risks of using this substance were and did nothing about them but spent a lot of effort resisting justice for those who were being afflicted by the substances they were deploying and using extensively throughout the country.

In relation to the long latency of this and other asbestos-related diseases, I do not think that we can describe what the insurance industry did in recklessly—and I am being kind in using that word—destroying its records as inconsistent record-keeping. These were deliberate acts. I cannot go so far as to say they were designed to have the consequence that they have but they were calculated to do so. If we had not had this combination of deliberate acts over an extensive period, we would not be facing the problems that we face now.

I share the concerns of many noble Lords about the arbitrary nature of the anticipated payment of 70% of average compensation and the cut-off date that will be very brutal to certain people who have suffered greatly. I want to make two points in particular, which I think will be additional arguments at least, if not completely new points in the debate. The first relates to the recovery of benefits. I accept the constraints that have been in place in these negotiations and because of that I am willing to accept that a payment scheme, as opposed to a compensation scheme, is the way forward, at least in the short term. However, that is entirely inconsistent with the approach that the Government plan for the recovery of benefits. My noble friend Lord Howarth of Newport asked a series of very detailed questions about benefits, to which I am sure the Minister will be able to reply. I can tell my noble friend that the answers will be extremely disappointing. It is very clear that the Government intend to recover benefits paid to those who have suffered. That may not affect continuing benefits because of the way the compensation recovery system works, but it will certainly be a significant injustice to people who have received benefits and find them clawed back from their payment.

I draw the attention of noble Lords to the Government’s impact assessment. I accept that this is an excellent document but it is also a quarry of very interesting information, as impact assessments always are. I refer particularly to paragraphs 13 and 14 of the impact assessment signed by the Minister on 2 May 2013. They set out in short how the compensation recovery scheme works. Paragraph 14 states:

“In a civil case, where an individual receives compensation from an employer or insurer, the government … recovers the social security benefits and lump sum payments it has made from the compensation paid”.

That is how it works, I agree with it and there is a justification for it, as the Minister explained: you cannot be compensated twice. However, as he is at great pains to explain, those who will get payments out of the scheme are not being compensated. This is a payment scheme, not a compensation scheme. It is not designed to compensate people for their loss and if it were these benefits would be restricted to the part of the loss that relates to income, not the part that relates to pain and suffering, because that is how the compensation scheme works otherwise. Therefore, there is an inherent unfairness in this. With respect to the Minister, the Government cannot have it both ways. This cannot be a compensation scheme for the recovery of benefits paid to those who have been paid out of it, but only a payment scheme for the nature of the compensation. Someone recently said to me in an argument that if you cannot ride two horses you should not be in the circus, but that is not a good enough answer to this issue.

Briefly, I believe that this scheme will end up in the same place as the Motor Insurers’ Bureau scheme, which on its website says that it is,

“a central fund to provide a means of compensating the victims of road accidents by negligent uninsured and untraced drivers”.

It goes on to say:

“The ultimate cost falls to law abiding motorists via their insurance premiums”.

Inevitably, that will happen to this scheme. That is what the impact assessment says. I draw noble Lords’ attention to paragraph 97; effectively, the research shows that that is the industry’s intention, while the impact assessment stands itself on its head and concludes the opposite in the last part of the paragraph. I draw these two issues to the Minister’s attention. I hope that he will either address them now or at some stage in the debate.

Finally, I repeat the words of my noble friend Lord Jones, who said that no words are adequate to describe the nature of the suffering and the anguish that this awful disease has generated. Our obligation is to respond to those pleas of anguish. We have only words to do it, but surely we can translate those words into some form of fair legislation.