Mesothelioma Bill [HL]

Lord Alton of Liverpool Excerpts

Monday 20th May 2013 Lords Chamber

[Lord Alton of Liverpool]

My Lords, in his opening speech, the Minister benchmarked our knowledge of mesothelioma to 1965. In that year, the Sunday Times reported on how an epidemiological investigation by Newhouse and Thompson for the London School of Hygiene and Tropical Medicine had shed light on the origins and nature of mesothelioma, finally laying to rest the scepticism of some pathologists who had until that time disputed its existence or its long period of hibernation, although more than three decades earlier, in 1930, the Merewether report had warned of a latency for asbestosis of some 25 years. Therefore, no one can reasonably claim that the industry, the Government or employers did not understand the risks that workers faced, although, scandalously, insurers routinely destroyed records during that period. That was not market failure—the phrase used by the noble Lord, Lord Avebury.

The 1965 report to which the Minister referred found that the interval between exposure and development of the fatal tumour ranged between 16 and 55 years. One case highlighted the fate of a woman who had died after brushing the white asbestos dust off her husband’s dungarees and work clothes when he returned from work every night. In 1965, it was discovered that even very brief exposure to the dust could prove lethal.

That was 50 years ago and despite assurances that research would be undertaken, there is still no cure. As we have heard in today’s debate, most people die within two years of diagnosis. As the noble Lord, Lord Jones, reminded us, by 1970 Britain led the world in asbestos regulation, yet the British mesothelioma death rate is now the highest in the world and has yet to peak. As we have all said, it is a horrible disease, and all those who have seen it will confirm that it leads to great suffering.

Just over a year ago in March and again in April I divided your Lordships’ House on the Legal Aid, Sentencing and Punishment of Offenders Bill on whether those suffering from mesothelioma should lose up to a quarter of their compensation to pay lawyers’ fees, arguing that victims could not be regarded as part of the compensation culture. Eighteen of your Lordships also joined me in a letter to the Times, in which we insisted that the Government’s claims that the proposed legislation would,

“deter frivolous and fraudulent claims is, frankly, risible as far as dying asbestos victims are concerned”.

We contrasted the Government’s proposals with the failure to deal with increasing road traffic accident claims and alleged whiplash claims, with whiplash alone costing a staggering £2 billion annually.

Your Lordships will recall that the late Lord Newton of Braintree, in his last major contribution in the House, gave his support to my amendment. In response to a Question I put to him at that time, the Minister told the House:

“I am spending considerable time on mesothelioma currently and I hope to sort out the real problem, which is the large number of people suffering from the illness who are getting no compensation at all because they cannot trace who was insuring them”.—[Official Report, 23/4/12; col. 1549.]

This Mesothelioma Bill is a down payment on that promise. Like others, I pay tribute to the Minister, the noble Lord, Lord McKenzie, and the officials who have worked with them, who have invested considerable time and effort in trying to deal with mesothelioma victims who have been unable to trace their insurers. As we have heard, it is a down payment rather than a comprehensive solution; for instance, it does not include the many victims of other asbestos-related diseases. At the briefing meeting, the Minister confirmed to me that the title of the Bill prevents any other categories being included at later stages.

Like the noble Lord, Lord McKenzie, my reservations about the Bill are that average compensation payments will be reduced by approximately 30%—a point also made by the noble Lord, Lord Howarth—and that only mesothelioma sufferers diagnosed after 25 July 2012 will be eligible to apply for a payment. The Bill excludes all those diagnosed prior to 25 July 2012. At the very least, the three-year limitation period in law should apply. I hope that we will consider this in Committee.

This Bill addresses the needs of victims who cannot trace their insurers. As we have heard, that is about 300 a year, but what about all the other victims who know who their insurers are? Given that the consultation by the Ministry of Justice, which does not predicate this Bill but is certainly influenced by and connected to it, commences in July, I would be grateful if the Minister can tell us the timescale on which he envisages further changes being made, whether he can assure us that nothing will be done that will place additional burdens on the victims of this fatal disease and whether the Government see this Bill as a template that is likely to be extended.

The Mesothelioma Bill has been inextricably linked to the Ministry of Justice proposals, principally a mesothelioma pre-action protocol, which I understand that the Association of British Insurers wrote for the MoJ and which the ABI says will reduce the time of settling a claim to three months. Considerable scepticism has been expressed about the ABI claims, and I wonder whether the Government have tested those claims.

What really cut through the foot dragging, as the noble Lord, Lord McKenzie, said, was Senior Master Whitaker’s ground-breaking practice direction, and court procedure which gets liability resolved in most cases very quickly. Surely it would have been better to fund those specialist courts and have a more effective approach using those courts than allowing for delays inherent in the proposed protocol.

I was also surprised and disappointed that although the industry has been fully involved at a formal level with the Minister in drawing up these proposals, the victim support groups were not. Many will share their view that 100% compensation—that is the full age-based, average compensation—should be paid, although I know that the Minister will insist that 70%, which it has to be said is worth more than £300 million during the next decade, is better than no payment. I have some sympathy with that, but remember that for decades it was asbestos victims who bore the burden of untraced insurance and insurers have saved hundreds of millions of pounds avoiding liability for insurances that they wrote. For decades, the taxpayer has funded the government lump-sum payments for those who could not trace their insurer, and they have recovered those payments only when an insurer was found since 2008. Prior to that, insurers recovered all government lump-sum payments which offset the compensation they paid, worth hundreds of millions of pounds.

Let me turn to my final point. As well as adequate compensation, should we not be spending more of our time and money, as was alluded to by the noble Lord, Lord Monks, in finding a cure to prevent the ravages of this fatal disease? In 2011, the British Lung Foundation invested £1 million in research, the rest of the voluntary sector invested £400,000 and the Government invested nothing at all. These are scandalously small sums to spend on a disease which kills so many people. Let us contrast the £0.4 million from the not-for-profit sector spent on mesothelioma research with the £22 million for bowel cancer, the £41 million for breast cancer, the £11.5 million for lung cancer and the £32 million for leukaemia. Indeed, there are 17 other forms of cancer for which far more research resources are reserved than for mesothelioma. Mesothelioma is literally at the bottom of the list. In 2011, the voluntary sector invested £5 million in myeloma research and £5.6 million on malignant melanoma—the cancers immediately above and below mesothelioma in the table of mortality figures. Yet, even with such limited funds there have been some exciting developments, including the creation of the world’s first mesothelioma tissue bank for researchers, a transatlantic collaborative study of the genetic make-up of mesothelioma and work on overcoming resistance to drugs used to treat the disease. It shows what can be done with the right investment. This Bill offers an opportunity to create a sustainable fund for mesothelioma research to help ensure that future generations do not have to suffer in the same way that so many have in the past.

I have today given the Minister a letter, which will be circulated in your Lordships’ House tomorrow, which has been signed by 20 Members. They include the noble Lords, Lord Avebury, Lord Bach, Lord Crisp, Lord German, Lord Harris of Peckham, Lord Howarth, Lord McColl, Lord Monks, Lord Pannick, Lord Patel, Lord Tugendhat, Lord Turnberg, Lord Walton of Detchant and Lord Wigley, the right reverend Prelate the Bishop of Hereford, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baronesses, Lady Greenfield, Lady Masham, and Lady Thomas of Winchester. Since the letter was written the noble Lord, Lord Kakkar, and the noble Baroness, Lady Morris of Bolton, have also indicated their support. The letter underlines the breadth of support throughout the House for an amendment which will be tabled for Committee stage on 5 June and which enjoys the support of the British Lung Foundation. It involves a small administrative or membership fee for those companies in the scheme and would raise £1.5 million annually. It would have no cost implications for the public purse, although I hope that the Government would consider providing match funding. It is, after all, receiving millions of pounds from the new scheme.

This Bill is a down payment in honouring the Government’s promise to respond to victims of mesothelioma. I welcome that, but I urge the Minister to see what more can be done within the scope of the Bill to bring justice and hope to those who are blighted by a disease that was none of their making. The truth is that we cannot eradicate all asbestos from our homes, schools, hospitals, factories and offices, but we can act justly towards those who have been afflicted by mesothelioma. The one certain way to prevent deaths from mesothelioma is to find a cure.

--- Later in debate ---

[Lord Freud]

Virtually all noble Lords mentioned the start date. The trouble is that, in principle, this is a sheep and goats situation. Any date, wherever it is set, as the noble Lord, Lord Monks, mentioned, is always arbitrary at one level. To pick up on the point made by the noble Lord, Lord Howarth, this concerns dependants as well, so if there was no start date and the date went back indefinitely, we really would be talking about a huge amount of money. We will spend a lot of time talking about this, but let us flesh out the areas of discussion.

I think that we might look in Committee at the point made by my noble friend Lord German and reinforced by the noble Baroness, Lady Taylor, about a cap or a different structure. Noble Lords can see my constraints, but we can look at shaping the structure in different ways. The noble Baroness, Lady Donaghy, asked when we would have the report on payments. It will be ready in the summer. In response to my noble friend Lord Courtown, I will say that we will have the scheme rules ready to be looked at by the time we reach Committee.

Extending this to other asbestos-related diseases was the other big issue of concern to virtually all noble Lords. The point about mesothelioma is that if you have it, you will essentially have contracted it doing a job in which there was negligence, and that it is fatal. You can fix a figure with a tariff level and you can go very fast. The objective is to reach a point within five months as compared with a typical period now of two years. Noble Lords will be conscious of the meaning behind those periods, given the prognosis of survival for up to 15 months. Getting something this quickly is really important. There may be schemes for other types of asbestos-related illness, but they could not be set up within this structure. We would have to look at something else; it could not be a simple extension.

My noble friend Lord Avebury and the noble Lord, Lord Alton, asked how many meetings have been held. Out of amusement, I counted them. There were 15 meetings with representatives of the insurance industry, of which seven were held in quite a tight period. You can imagine that they were being held during a time of heated negotiation. A total of 11 meetings were held with representatives of victims’ groups, lawyers and members of the all-party parliamentary group. It is not a complete balance but I took on board as much as I could as we built this.

I will not spend a lot of time tonight on the MoJ process. We will have time to do a bit more. The fundamental point is that the MoJ will launch a consultation shortly. It will go through all these issues and then come up with a scheme on the balance, taking on board all the responses. This is a major process and we will just wait for it to happen.

The noble Baroness, Lady Donaghy, raised the question of the scheme administrator. We are in control of this scheme and the DWP will drive the scheme rules. The scheme administrator will therefore be answerable to the Secretary of State, who will monitor whether it is doing the job that needs to be done. It is not a done deal with the ABI at this stage, though it is setting up a shadow company. If it does this successfully and if it is the administrator, it means that we can go very fast, but it is open at this stage.

My noble friend Lord German raised a key point about the assumption of negligence. What distinguishes mesothelioma from some of the other diseases is that there is no reason for it other than being exposed to asbestos in employment. There has been a general acceptance that if you were exposed to asbestos in the workplace it would be through negligence. The decision has typically been made on a balance of probabilities. We will spend more time in Committee on the important legal context of why one can do such a straightforward and rapid scheme.

I have had good warning from the noble Lord, Lord Alton, that I will get an amendment proposing that some of this levy should effectively go into research. I cannot tell the noble Lord how hard I have tried to produce that result for him. I have failed to do it and we will spend time on this in Committee. There are some really complicated technical reasons why that cannot happen, mainly because, formally, a levy is a tax and it cannot go to anyone but the victims. I have tried every single route round this. If noble Lords are cleverer than me and can work their way through it differently, I will be delighted.

[Lord Alton of Liverpool]

I am grateful to the Minister, who is obviously coming to a conclusion, for giving us a lot of his time in replying. Has he noticed that the British Lung Foundation proposal is not asking for money from the levy? It is suggesting a membership scheme for every insurance company, who would then contribute £10,000 as part of that scheme. This would raise £1.5 million each year. He will also recall that I made a point about the amount of money coming into the Treasury as a consequence of the proposals before your Lordships tonight.