Mesothelioma Bill [HL]

Lord Alton of Liverpool Excerpts

Wednesday 5th June 2013 Grand Committee

[Lord Freud]

Ah, I might say a few words. I hope that in my earlier intervention in the interests of saving a little time I effectively dealt with our approach on Amendments 1, 2, 4 and 5. I will turn to Amendments 3 and 6 in the name of the noble Lord, Lord Howarth.

Amendment 3 requires that before the scheme is established,

“the Secretary of State shall publish his proposals and make a statement to Parliament about them”.

This falls into the area of the recommendations from the Delegated Powers and Regulatory Reform Committee to make the scheme rules subject to negative resolution. The result of those considerations may serve to enhance in practice the level of parliamentary scrutiny, which would make this amendment unnecessary.

One or two questions were raised. I apologise for the late arrival of the scheme rules—everything seems to be just in time today—but I was keen to get them to Committee Members before we started. Of course, we will have another day of Committee, and further stages. They are a draft at this stage and a work in progress and we will be continuing to refine them during the passage of the Bill and indeed afterwards.

I ought to deal with the question from my noble friend Lord Avebury on the meeting with the insurance industry. Bluntly, this was a negotiation with the insurance industry and you have to meet people to negotiate with them. To get a working scheme going, that was an essential job. I would have liked to have done it with rather fewer meetings, but that is what it took.

Amendment 6 requires that:

“The Secretary of State must report annually to Parliament on the performance and progress of the scheme”.

I argue that it is not necessary to include this in the Bill. Scrutiny and reviews are already planned for the scheme without the need to include those in legislation. Indeed, we cannot know at this stage whether it is necessary or appropriate to report annually. We are aiming to determine the details of the reviews at a later stage. I am happy to commit to making a Statement to the House on the scheme’s performance. We will keep this under review as, over time, we expect the volume of scheme cases to reduce and for further information on the schemes to be readily available. The kind of information that the noble Lord, Lord Howarth, was talking about may become transparent effectively on a daily basis. I urge the noble Lord, Lord Avebury, to withdraw his amendment.

[Lord Alton of Liverpool]

Before the Minister sits down, perhaps he could put on the record a bit more about the imbalance of the meetings that he held with the industry and the victim support groups. He may recall that I raised this issue at Second Reading. I heard from the victim support groups afterwards and they said, quite categorically:

“We met the Minister three times, however at no time were we involved in any discussions about the scheme which was unveiled on 25 July 2012. The detail and architecture of the scheme was devised by the insurers and DWP”.

That has been a source of some discontent among those who represent the victims of this awful disease.

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[Lord Walton of Detchant]

My Lords, I rise to support Amendment 8. I spent the greater part of my professional life practising medicine in the north-east of England. Even though I practised largely as a neurologist, I saw many patients with mesothelioma, many of whom had worked in the shipyards on the Tyne and the Wear, and who had been exposed to asbestos. However, I also saw, not under my direct care but under the care of colleagues, some women who developed mesothelioma because they had been involved in washing the clothes of their husbands, who had been exposed to asbestos—clothes which were deeply impregnated with asbestos fibre. For that reason, I would say that this issue does not rest just on the balance of probabilities; in my view, it is beyond all reasonable doubt that they developed mesothelioma because of that activity.

[Lord Alton of Liverpool]

My Lords, like my noble friend Lord Walton of Detchant, in my time as a Liverpool Member of Parliament I also came across shipyard workers from the River Mersey who, sadly, had contracted mesothelioma. I also saw tunnellers, masons and others who had come to surgeries to talk about what compensation schemes might be available.

I vividly recall meeting a man and his wife, and she came back to see me just weeks later when she was a widow, he having died. The rapidity with which people can die after prognosis is alarming, and of course it is a fatal disease. It is suspected that another 56,000 people will die of mesothelioma before this terrible curse is ended.

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[Lord Alton of Liverpool]

On that point, has the Minister seen the ABI briefing, where it says:

“There will only be a very small category of people who have been solely self-employed and therefore not eligible for a payment from the untraced scheme”?

Clearly the ABI has the data. Before we come back to this issue on Report, perhaps the Minister will discuss with the ABI what it based that statement on and what the numbers are.

[Lord Freud]

Well, my Lords, if I am cleared to speak to the insurance industry again by this Committee, I will ask it for those data, and supply them to your Lordships.

The noble Lord, Lord Moonie, made the point about those who had washed the clothes. Again, that is not covered by employer’s liability. It could be a case of public liability, so there may be something to pursue. I will look into that before the next Committee day to see if I can get a little bit more information. I do not have very much information on the legal differentiation and what actually happens there. The same question was asked by the noble Lord, Lord Browne.

On the Northern Ireland question asked by my noble friend Lord Empey, the Northern Ireland legislation mirrors the legislation in the rest of the UK, with the 1979-2008 legislation prevailing, and the plan is to run this there as well.

I think that I have dealt with all the questions, but possibly not to everyone’s satisfaction.

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[Lord Alton of Liverpool]

My Lords, with his characteristic courtesy, earlier this week the Minister gave Members of the Committee the opportunity to meet him to raise concerns about issues that arise out of the Bill. I went to see him and raised two questions, one of which was the issue of eligibility. Therefore, I am very happy to support the remarks that the noble Lord, Lord Howarth of Newport, has made and to support this group of amendments.

The additional cost of back-dating eligibility to February 2010 pales, as the noble Lord said, into insignificance compared with the hundreds of millions that the insurers received from the taxpayer prior to the Government recovering lump-sum payments under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979.

Because it was an issue that he raised during our discussion on Monday, the Minister may also say that the insurers may be concerned about their right to property—that is, to compensation—under the Human Rights Act. However, asbestos victims lost not only their compensation, or right to property, but their right to life, and two years’ back-dating seems a very small concession to make in that context. The noble Lord, Lord Howarth of Newport, is right: surely there would be a case for some of those affected by the Bill to challenge the Government in the courts. I should be grateful if the Minister would tell us what legal advice he has received on that issue.

The Committee should perhaps especially consider that the commencement of the consultation in February 2010 is a seminal date. For those affected, it represented a promise waiting to be fulfilled. At the very least, the eligibility date for a payment should be the commencement of the consultation—a point that I shall return to in a moment.

I also want to refer to a point that the noble Lord, Lord Howarth, mentioned concerning reserves. The Minister says that he cannot set an earlier date because only at the date of the announcement could insurers have begun to reserve against making payments. However, for two years the ABI discussed the detail of a payment scheme with the Minister, and it can hardly have woken up on 25 July 2012, shocked that it would have to reserve against making scheme payments. Just as importantly, surely it should have been reserving against asbestos claims 50 or more years ago, as the noble Lord, Lord Freud, himself implied when prefacing his speech at Second Reading. He did so with a reference to the Newhouse Thompson report, to which I have already alluded and which was published in 1965.

First, I think that the Government should be held to account for this date of February 2010 rather than July of last year, because that is when they issued their consultation paper, Accessing Compensation: Supporting People who Need to Trace Employers’ Liability Insurance. I have a quotation from that report which underlines why it is not unreasonable for mesothelioma victims to reference that date as a day when they think this scheme should commence. The Government said that they,

“are also persuaded that an Employers’ Liability Insurance Bureau (ELIB) should form part of the package of measures to improve the lives of those who are unable to trace an old employer or their insurer. An ELIB would be a compensation fund of last resort and would ensure that some individuals who are unable to trace EL insurance records would receive compensation”.

Commenting in the consultation paper on the low success rate of the employer’s liability code of practice in tracing insurers, the Government said:

“The Government are keen to support everyone who needs to trace EL Insurance and cannot accept that 40% of the people who need to use the ELCOP should be left without compensation. The Government are determined to do more. To achieve this, the Government propose the actions considered in the next chapter”.

Those two clear statements of intent left no one in any doubt of the Government’s intention to act to provide protection for those who could not trace an insurer. Mesothelioma sufferers diagnosed on 10 February or later would have had every expectation that the Government’s commitment to set up a fund of last resort would be honoured at least from the date of the publication of the consultation. The date of the publication of the consultation set alight that expectation and it has flamed ever since that time. It took more than two years for Ministers to respond to the consultation on 25 July 2012, on the last day before the Recess last year. Surely it is unacceptable now to throw a bucket of cold water in the face of mesothelioma sufferers and their families and to douse the hopes that they have rightly had at least since February 2010.

In law, a mesothelioma sufferer has three years from diagnosis to claim compensation. It would therefore be reasonable and consistent with current legal practice to take into account that limitation period. Applying the date 10 February is consistent with legal rules on the time allowed to make a claim and provides a more credible reason than the arbitrary date of 25 July 2012.

The Asbestos Victims Support Groups Forum responded to the questions concerning the date of eligibility. Question 15 asks:

“How should an ELIB start to meet claims to ensure fairness to claimants and funding at the start of the scheme?”.

The forum said:

“Claimants should present their claims and they should be dealt with in accordance with the civil law, including issues such as limitation. Sufficient funding should be made available to meet any successful claims”.

It is therefore imperative that the few cases where judgment has already been obtained and compensation awarded, but not satisfied because the insurer could not be traced, are paid under a newly established ELIB.

Whatever eligibility date is applied, many mesothelioma sufferers and their families will be bitterly disappointed and feel that the door has been closed in their face. Applying the date of 10 February 2010 will inevitably disappoint many, but it will at least apply a date that has credibility and which also allows for the long period between commencement of the consultation and the Government’s response. It would be just to capture all those who in the past were unable to trace their insurer and who could prove negligent exposure to asbestos. That is, regrettably, not possible. The very least we can do is to go back to the date of the consultation. I do not think that that is asking too much.

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Moved by

[Lord Alton of Liverpool]

10: Clause 2, page 1, line 17, leave out “25 July 2012” and insert “1 February 2010”

[Lord Alton of Liverpool]

My Lords, Amendment 10 has already been dealt with in the debate we have just had, so my remarks will concentrate entirely on Amendment 31, which is grouped with it.

Earlier in our proceedings, I recalled that in 1965 the Sunday Times reported on how an epidemiological investigation by Newhouse and Thompson, undertaken for the London School of Hygiene and Tropical Medicine, had shed light on the origins and nature of this terrible disease, finally laying to rest the scepticism of some pathologists who had until that time disputed its existence and its long period of hibernation.

More than three decades earlier in 1930, the Merewether report had warned of a latency for asbestosis of some 25 years. No one can reasonably claim, therefore, that the industry, Government or employers did not understand the risks that workers faced. Yet, staggeringly, this vicious disease has had Cinderella status when it comes to research spending. It is not hyperbole or overstatement to assert that it is nothing short of a national scandal that a disease predicted to kill a further 56,000 British citizens between 2014 and 2044 receives not a penny of state funding for medical and scientific research into understanding its nature and identifying cures. What other disease that kills 2,400 British people every year has to rely entirely on what money can be scraped together from voluntary organisations such as the admirable British Lung Foundation?

In 2011, the British Lung Foundation invested £1 million in research. Here I must pay tribute to those four insurance companies that voluntarily supported that scheme and provided that money. The rest of the voluntary sector invested £400,000. By contrast, the Government invested nothing at all. This is scandalous when we are dealing with a disease that kills so many people and when we compare it with the fabulous sums of money that the noble Lord, Lord James, referred to in the previous group of amendments—billions of pounds being invested compared with £1.4 million given voluntarily, without a penny piece of state funding, for research into this shocking disease.

Back in 1965, the Sunday Times also reported, on the back of stories emerging from London, Belfast, Newcastle, Leeds and Liverpool, some of which have been referred to in our earlier debates, that research would be conducted to examine causes and find cures. That was 50 years ago and we are still waiting for a research base that matches the scale of the problem. Fifty years later there is still no cure, and most people die within two years of diagnosis. The UK mesothelioma mortality rate is the highest in the world. The number of deaths is roughly double the number due to cervical cancer, for example.

My amendment seeks simply to open a debate about the lack of funding for mesothelioma research. Paradoxically, if we could find a cure, it would not only eliminate horrendous human suffering, it would also eliminate the need for the millions of pounds of compensation that we are debating during these Committee proceedings. So there are humane and altruistic reasons for supporting funding of mesothelioma research, but for the Government and the insurance industry there are straightforward financial considerations too. As well as adequate compensation, we should be prioritising much more of our time and money to finding a cure to prevent the ravages of this fatal disease. Of course it would be impossible to eradicate all asbestos from our homes, schools, hospitals, factories and offices, and it is welcome that there is a general desire to act justly to those who have been afflicted with mesothelioma. But the one certain way to prevent deaths from mesothelioma will be to find a cure. That will not happen without adequate resources and that, in turn, requires political will.

I said that mesothelioma has a Cinderella status. Let me illustrate what I mean. Contrast £1.4 million spent on mesothelioma research with the £22 million for bowel cancer, the £41 million for breast cancer, the £11.5 million for lung cancer, 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 quite literally at the bottom of that 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. I think that some of my noble friends will refer to these. They include 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. We have an opportunity in the course of the proceedings of this Committee 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.

At Second Reading, I gave the Minister a letter, which was then circulated in your Lordships’ House, and has been signed by 20 noble Lords and Baronesses from right across your Lordships’ House. Subsequently a letter supporting the same points was published in the Times. This letter underlines the breadth of support throughout the House for the principles that underpin this amendment. Not necessarily the detail—I fully accept that this could be rewritten between now and Report stage, that it can be modified and changed. It is the principle that I am primarily interested in at this Committee stage and that is the point that I will be most pressing the Minister on.

This proposal enjoys the support of many Members of your Lordships’ House, the British Lung Foundation and the victim support groups. The proposal involves a small administrative or membership fee to those companies in the scheme and would raise £1.5 million a year. It would have no implications for the public purse, although I hope that the Government will consider providing at least match funding—it is, after all, receiving millions of pounds from the new scheme. I hope that the Minister, when he comes to reply, will tell us what money his Government will pledge for research and what progress he is making with the Department of Health, the Medical Research Council and the Treasury in putting together a scheme that will address this issue. Such an initiative will bring justice and hope to those who are blighted by a disease that was none of their making.

The Minister met with me on Monday, as I said earlier, and again I am grateful to him for the patience and courtesy that he always shows in dealing with this and the proceedings of the Committee. We discussed the detail of this amendment. One aspect that I know that the Minister does not like is the £10,000 levy that would be paid by all insurance companies. The Minister feels that if there were such a scheme it would better if it were tied to market share or turnover, rather as the levy for compensation is, in the context of the Bill as a whole. I accept that this approach would be in line with the way in which the compensation clauses of the Bill work and I would be very happy to modify the amendment to accommodate that point. A proportionate levy would be equitable and wholly acceptable to me. When the Minister comes to reply, will he indicate whether he would like to bring forward a modified amendment on Report to reflect that kind of change on that kind of basis?

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[Lord Freud]

I have actually got round to asking that question already, so I can answer it now. The reason is that it is an unfashionable area because it was believed that there was no hope. We caught it late, it was happening over a very short period and it was fatal. It was an unfashionable area to go into and therefore the people who wanted to make their careers in research turned to other cancers. As a result, good-quality research proposals were not coming in and therefore the research council did not feel that it could supply funds. That is the reason and it has been the reason for decades. With regard to breaking that cycle, the insurance industry and the voluntary groups working with the BLF have started rolling the stone down the hill, and I think that we are now in a position to get something moving. However, it is a bigger issue than just getting a little bit of money through this device.

[Lord Alton of Liverpool]

My Lords, the Minister said that he feels like a mad mouse going round in a wheel. Fortunately, we have some good medics on hand this evening, who, I am sure, will be happy to diagnose the problem. Whether they can come up with a cure, I am not sure, but it is the job of parliamentarians to come up with a cure to help Ministers who are clearly committed to the underlying principles enunciated in the amendment actually to achieve them. He said that he has been banging his head against a brick wall and that he has been dismayed at the failure to provide adequate resources to deal with these things. The one thing we can do for a Minister in that situation is to provide him with an amendment to the Bill, which he can then take back to the other departments involved, to the Treasury and to everybody else, saying, “In Committee, they gave me a hard time over this. We need to find some way forward”.

Although I am of course not pressing this to a Division today, the fact that 10 noble Lords participated in this debate and have spoken with such experience and conviction, all being in favour of the principles underlying the amendment, means that surely the Minister now has some ammunition in the locker to take away and use to try and promote this case.

I am indebted to everyone who has spoken in the debate. My noble friend Lord Walton of Detchant said that the amendment could be strengthened and suggested two ways of doing that. I particularly liked what he said about the National Institute for Health Research and the role that it might play. I will certainly consult him in redrafting this amendment between now and Report.

My noble and learned friend Lady Butler-Sloss said that if we could do it for gambling, why on earth can we not do it for this? The noble Lord, Lord Pannick, reminded us, as did the noble Lord, Lord Empey, that many other precedents can be invoked in such circumstances. Perhaps the Minister could ask his officials to look at the whole battery of precedents when going away to persuade those who, somewhere in the system, are clearly opposed to us putting these powers into the Bill.

My noble friend Lord Wigley reminded us of the scale and number of people affected by this horrible disease. He recognised, as did others, that a variable approach might be the right one to adopt as we recast the amendment.

My noble friend Lord Kakkar said there had there had been no strategic approach. He is right. He reminded us about the role of the meso-bank, which, as he says, will have global significance. He also referred to the possibilities that genetic research produces, but said that research has to be kick-started. In other words, there has to be some kind of seed funding—in the absence of state funding. Of course, austerity will inevitably be one of the reasons given when the Minister goes back to the Treasury or elsewhere. Other people will have their own priorities and projects, which they say that the money should be spent on. Again, we need to provide the Minister with something that overcomes those objections. The approach adopted in this amendment of a levy is one way of doing that. My noble friend Lord Kakkar also reminded us about something that I had not thought about previously: the importance of research into appropriate palliative medicines and palliative care, and the way in which we care for people during the last months of their lives. That was an important point for us to consider.

The noble Lord, Lord McKenzie, reminded us of the stark numbers, and the noble Lord, Lord Howarth, who, along with others, signed a letter sent to the Times, told us about the importance of leverage and asked why a greater volume of resources was not made available for research. I was prompted to think about this issue by two Questions asked in another place by a Member of Parliament, Mr Bob Blackman. I was surprised when I saw on one of his Questions just three dotted lines where figures should have been, detailing the resources available for research into mesothelioma. When he tabled a further Question, the column simply showed three sets of zeros. I was absolutely staggered that that could be the case, given that 56,000 British people will die of this disease before it is over.

My noble friend Lady Masham said that research means hope, and she is absolutely right about that. Without research, we can offer no hope. My noble friend Lord Pannick said that there is nothing novel about this approach and that it would be quite fanciful to suggest that the Human Rights Act could in some way be invoked. That Act ought to be invoked against the state authorities in this country for not having done something about this problem for so long.

My noble friend Lord Avebury was very generous in his remarks, but in fact I am just an apprentice compared to my noble friend. He and I have been friends for a very long time. He published a pamphlet on the subject of mesothelioma in the 1970s and has campaigned on this issue throughout the whole of his parliamentary life. I stand in awe of him on this and many other matters.

The purpose of my amendment was to start the debate. There are moments when Parliament, rather than the Government, can shape policy, and this is one of them. The Minister said that there is a chicken-and-egg cycle. In that case, let us break that cycle. Although I beg leave to withdraw this amendment now, I am sure that noble Lords would expect me to bring it back on Report.

Amendment 10 withdrawn.