Mesothelioma Bill [HL]
Lord Selsdon Excerpts(10 years, 9 months ago)
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Lord Selsdon
My Lords, last time I declared an interest as someone who had worked in the asbestos industry and I made a suggestion to the noble Lord, Lord Alton, which I have researched further. That is that the amount of clean-up that will have to take place over many years is the perfect target for a levy that might be placed upon it for research purposes.
Lord German
My Lords, before I seek the same dispensation that the noble Lord, Lord Howarth, sought at the beginning of his speech, I will say a few words about the amendments which are before us in order to give my noble friend time to locate the answers to them.
I appreciate all the work that the noble Lord, Lord Browne, has done to get to this point. He referred to remote and hypothetical places where things might occur. I hope that what I will say is not hypothetical, although I suspect that it will be remote. I am worried about the omission of the words,
“at the time of the person’s exposure to asbestos”,
from the new provisions now proposed as Clause 2(1)(ca) and Clause 3(1)(ba). The hypothetical, or rather remote situation, is the following. A company at the time of a person’s exposure did not have employer’s liability insurance—it was behaving negligently—and subsequently, when that person had left that company’s employment, it secured employer’s liability insurance in order to become compliant. As this is written, that would mean that there could be a possible—or not possible—claim against that employer’s liability insurance, which was subsequent to that person’s period of employment. That very remote case leads me to wonder about the omission of those words from the second part of each of those clauses and whether they need to be inserted, or rather made clear. Of course, maybe this could occur in the regulations that may follow from the rules of the scheme that pursues this.
I will quickly say a few words about the Bill. As regards the achievements that noble Lords have made in this House and the work they have done towards the changes that have been made to the Bill, in each of those three or four key issues there has been a change and a degree of success which we ought to recognise. I will first address independence and oversight, which was raised by noble Lords from all sides of this Chamber. They are both very important: the first ensures that the people who manage the process do not rule the way it operates, and the second ensures that there is a degree of observation of how it is run by all those who are, if you like, the actors on the stage who are affected by this dreadful disease.
The second issue is that of research. The noble Lord, Lord Alton, has already referred to the work which is being done by the two Ministers present today, my noble friends Lord Howe and Lord Freud. Clearly, there are differences of view as to how that might happen—statutory versus non-statutory. That is probably the way this House deals with issues: they have been raised, and although the solutions may not be the same ones that noble Lords wanted, they are, none the less, an approach to doing research into this disease.
One way in which we can keep track of what is happening in this area is by scrutiny of Ministers. It is not a matter of whether the Minister who follows is a good Minister—to rephrase the words of the noble Lord, Lord Alton—but of being able to hold Ministers to account. That is what Parliament can and should do. These things should not be kept from the public eye. I am sure that, in years to come, noble Lords will pursue this issue strongly with Ministers of whatever persuasion, from whichever part of the House they come, in order to ensure that we better understand this dreadful disease and how it can be treated and ameliorated. It is important also to take an international approach and work with those who suffer from this dreadful disease in other parts of the world.
The third area that has been of importance to your Lordships’ House during the course of the Bill is the level of compensation. Clearly, a major issue at the beginning was the percentage of civil damages that was to be given, according to a ratio or tariff. Noble Lords sought to raise the bar. There was some success, and, given the public interest in these matters, clearly on one side you wish to ensure as much compensation as you can, quite rightly, for sufferers who cannot trace their employer or their employer’s insurance company. However, you do not want to put another burden on companies that are not responsible for what happened, which would in turn pass on the costs to customers, who would have to pay them. We may not have reached the right balance but I pay tribute to the Minister for moving the bar upwards against all the pressure he was put under during the passage of the Bill.
There are ways in which the Bill can become a model for dealing with other forms of industrial illness relating to asbestos, and with other industrial diseases. The situations may not be exactly the same because, appropriately, this measure is directed at a unique and terminal illness that is dreadful in every aspect. However, it may be that we can derive other models from some of the work that has been done in the Bill.
Finally, I congratulate the Minister on his personal commitment. Many noble Lords will know that he has personally taken this as a challenge that he will see to its conclusion. The job was started by the previous Government, and the noble Lord has obviously taken it a step forward from where it was left by that Government. I pay tribute to the starting point. However, to see it to its completion, having undertaken what must have been horrendous negotiations with people who were not responsible but who had to pay for the people who were responsible and had disappeared off the scene, cannot have been easy. When eventually the fly on the wall in those meeting rooms publishes its memoirs, I am sure that we will be able to see the level of pressure brought by the Minister. From these Benches, I congratulate him and say that it was a job well done. We have taken a step that will lead us in future to deal with problems associated with this disease in an appropriate way. I hope that we will see an early start to implementation, so that people will no longer have to wait for compensation in cases where their former employer, or its insurance company, has gone out of business.
Mesothelioma Bill [HL]
Lord Selsdon Excerpts(10 years, 9 months ago)
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Lord Selsdon
My Lords, I thought that the death sentence was cancelled many years ago, but I almost seem to have heard my own death sentence now. I worked with asbestos for many years. I picked up Cape blue. Every now and then, when you get a cough in your throat, you think, “Oh, have I caught this disease”—I cannot even pronounce it—“Is there something wrong with me?”. That was during a period in industry. I came out of the Navy, where of course we had masses of asbestos protecting ships, in repairs and elsewhere. I worked with it. It was to some extent a mystical product because it was the only fire protection kit available.
I then went into industry because of the new developments. These were the new plastics, which were suddenly to replace the whole of the construction industry. I learnt about polyurethane, formaldehyde, polytetrafluoroethylene, poly this, poly that. I would work on the shop floor without a mask, because when you are young you do not have a mask, and when sent out to do roofing materials, lay asbestos cement, cutting and so on, of course we did not wear heavy boots with protective caps; one wanted to be flexible. We did not have safety ladders; we slid down the outside. When I was working on the Blyth Colliery project as a young rep up in the north, I learnt about mining diseases—silicosis and all those things that I could not pronounce.
However, that was another period of time. Now, quite suddenly—and, I think, correctly; I have been impressed by what I have heard today—out of this something has been identified. I have tremendous regard for what the noble Lord, Lord Alton, does, but it is the right thing in the wrong place. This Bill is the right one to go through, and it could have gone through years ago. As I tried to look at the figures, I suddenly realised that I am even more grateful to your Lordships’ House because 50 years ago, when I first came here, I would not have left the asbestos and the plastics world without having to be in your Lordships’ House. I changed my job and went into building and industrial research and I have learnt, over many years, an enormous amount from noble Lords and have great respect for them.
I think that my noble friend Lord Freud and his colleagues have got it right. The question that I ask is: why was this not done a long, long time ago? What is being done about all those other historic diseases that may have come from chemicals of one sort or another? As we have new research developments, those who develop a particular product never think of the future. They do not understand what smells and other things can do. I never wore a mask and now I feel that I am starting to cough a bit, but I have learnt a trick. In your Lordships’ House, when you stand up to speak, many people need a glass of water or need to clear their throat. That may lead them to believe that they have one of these industrial diseases. However, it is strange but there is a little trick that you can do: wiggle your toes. That gets the circulation going and stops you having a dry throat and having to look to the Doorkeepers to ask for water.
I say to the noble Lord, Lord Alton, that I will help in any way that I can to raise money for a research fund and others. I think that the way to approach it is to look at those who may have had great success in property development or things of this sort. Located in their buildings—probably in almost every building in London—are likely to be unacceptable levels of asbestos. However, the levels are not unacceptable until you find it. It may be behind every board. We used to make a product called asbestolux, which was a fire-proofed, simple board used in all homes instead of plywood, which was too expensive at that particular time.
Throughout the land, from our colonies, asbestos, such as the Cape blue asbestos, is virtually everywhere. The danger is, once you try to move it and destroy it, you create dust and some of the research has not yet managed to identify how you screen it. Perhaps your Lordships have been in a block where someone is redeveloping a flat and before you know it, in comes an enormous team of people with large fans that suck and circulate. You wonder whether that is taking out some of the micro ingredients that come with asbestos.
Obviously, you will find that in the building trade, people do not necessarily follow what are called “building regs”. Therefore, many accidents have happened with saws and so on that could have been solved. Therefore, to the noble Lord, Lord Alton, and to others, I say: let us just get on with this Bill and get it through. It can do a lot of good as it stands. Do not hold it up and I will see what we might be able to do to encourage some support anywhere else. I am grateful to your Lordships for listening to me and I feel that perhaps I will not fade away quite as early as I thought.
Lord Pannick
My Lords, I have not wiggled my toes but I have added my name to the amendment of the noble Lord, Lord Alton. In his compelling speech, the noble Lord referred to the letter that the Minister sent on Monday. In it the Minister expressed his support for increased research, but he added that,
“unfortunately, the mechanism proposed is just not viable”.
The letter does not provide what we lawyers call further and better particulars as to why the Minister believes that the proposal is not viable; nor did the Minister throw any light whatever on this matter in Grand Committee. Indeed, in his opening remarks this afternoon the Minister very helpfully referred to a number of other matters, but he did not give any explanation in relation to this issue.
In Grand Committee, the Minister focused on a concern that research funding was the responsibility of the Department of Health, while this was a DWP-sponsored Bill. I hope that we will not hear that argument again today. As a matter of law, of course the Government are indivisible, and, as a matter of efficiency, government departments talk to each other. I am encouraged to see the noble Earl, Lord Howe, in his place today.
What other reasons, therefore, could there possibly be for the Minister to suggest that the proposal of the noble Lord, Lord Alton, is not viable? The Government must be satisfied that Clause 13 of their own Bill is viable in providing a levy. These amendments simply provide for a research supplement on this levy, which would be clear as to those who are obliged to pay, the amount and the purpose. Nor can it be that the Minister thinks that these amendments do not reach their target. As the noble Lord, Lord Alton, mentioned, the amendments have been drafted by Daniel Greenberg, a former parliamentary counsel of distinction, who is editor of the authoritative work Craies on Legislation.
Nor could it sensibly be suggested by the Minister that the amendments are not legally viable because they might be the subject of some legal challenge under the Human Rights Act or the European Convention on Human Rights. The Bill contains a levy and there are many other examples of statutory levies introduced by Parliament to advance good causes. The noble Lord, Lord Alton, has given a number of examples; I mentioned in Grand Committee the levy on bookmakers under the Betting, Gaming and Lotteries Act 1963 for the purpose of improving horse racing in this country. If, as Ministers must believe, the levy in Clause 13 is legally viable and those other levies are legally viable, I cannot understand why the amended levy of the noble Lord, Lord Alton, is not equally viable. Any legal action to challenge an amended clause—amended in the terms of the noble Lord, Lord Alton—would be a legal action, to coin a phrase, that is not legally viable.
There is a vital need for research and research funding to combat this awful disease. To include these amendments in the legislation would encourage research. I do not accept for a moment the concern expressed by the noble Lord, Lord Selsdon, that for us to do our job and improve the Bill would somehow hold it up. There is ample time for debate on such matters if—I hope it will not be the case—the other place disagrees with us. When it comes to a choice between liability on the insurers and the Minister’s concerns about viability, I am with the noble Lord, Lord Alton.