Mesothelioma Bill [HL]

Lord Wigley Excerpts

Monday 10th June 2013 Grand Committee

[Lord Freud]

My Lords, I am grateful for those observations. I am sure that we will have a chance to discuss this in more detail later. I now move to—

[Lord Wigley]

Before the Minister moves on, is he not going to respond to the point made by his noble friend, who has shown that there were cases, which is totally at variance with the lead the Minister gave to the Committee?

[Lord Freud]

My Lords, we could spend all day on one point. I am just trying to get a response on the record. We will have another chance to go through this again. I was making a clarification.

I turn now to the query of the noble Baroness, Lady Sherlock. When discussing the proposed start date of eligibility for this scheme, we talked about insurers being able to reserve against that liability from that date. The noble Baroness drew attention to the fact that the levy will be an annual running cost, not a liability to reserve against. She is of course correct: the payment is not the same as a liability. However, the impact is much the same. The levy is an additional cost to insurers that needs to be factored into their business plans. To do this, they need to have confidence in the timing and amount of the cost to be incurred. Therefore, on 25 July 2012, when the intention to set up a payments scheme was announced, this provided a sufficient level of confidence for insurers to start to factor the levy into their business plans for 2014. I ask the noble Baroness’s forgiveness for my incorrect use of terms, and for her recognition that this does not change the shape of things in this case.

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[Lord McKenzie of Luton]

My Lords, in moving Amendment 29, I will also speak to Amendment 30. Clause 7 provides for the Secretary of State to administer the payment scheme or to make arrangements for a body to administer the scheme. The arrangements can allow the body to arrange for somebody else to administer the scheme or any part of it. Amendment 29 would ensure that any further delegation which is permitted has the approval of the Secretary of State. This is a straightforward issue. Administering the scheme is an important undertaking, and the Secretary of State should be satisfied that those involved are fit for purpose.

It may be that the Minister will say that the Secretary of State should not have to be bothered if somebody is appointed to administer, say, a routine part of the scheme such as the processing of payments. However, as it stands, an appointed body would appear to be able to cause the whole of the operation practice to be transferred to somebody without any recourse to the Secretary of State. Our concerns in this matter might be negated if we knew what arrangements the Minister envisages for membership of any company or other body which it is expected will run the scheme. We know the insurance industry view but, by now, the Government must have arrangements in mind. Perhaps the Minister will share these.

This leads on to our Amendment 30, which requires the administering body to be constituted from members who are demonstrably independent of any active insurers. As levy payers, clearly they have an interest in the numbers and the profile of successful claims. The Minister may again say that they may also have an interest in helping people bring proceedings against individual insurers. That may be so, but it does not negate the fact that active insurers have a direct financial interest in the outcome of the scheme.

Of course, it is accepted that claimants have a right of appeal, but we have already touched on the costs and time of this, and it is not a sufficient answer. In the draft scheme rules it does not appear that there is a requirement for any specific insurance expertise to be brought to bear—or, if there is, it does not seem to be the driver of the scheme. What discussions have taken place with the insurance sector about administration? I beg to move.

[Lord Wigley]

My Lords—

[The Deputy Chairman of Committees (Lord Geddes)]

If the noble Lord will curb his enthusiasm for just a moment, the amendment proposed states:

“Page 4, line 11, after ‘may’ insert ‘, subject to the consent of the Secretary of State,’”.

[Lord Wigley]

I am grateful for being curbed. I support the amendment. It will lead on to Amendment 32, which also addresses these issues, so I may come back to them at a later stage. It is immensely important that this body is seen and respected by those outside the industry as being at the very least impartial with regard to the way things will be conducted. It must have the confidence of the beneficiaries, their families and everyone else involved. This amendment, together with Amendment 32, which we will consider in a moment, needs to be taken on board, if not in this form of words then at least in a form of words that addresses what could be a weakness in the Bill.

[Lord Freud]

I thank the noble Lord and the noble Baroness for their amendments. I assure them that all diligence will be observed during the setting up and monitoring of the administrative body. Irrespective of the background of the scheme administrator, the body will have to administer the scheme in a way that satisfies the requirements of the legislation and apply scheme rules that will ensure that the administrator is sufficiently tied to a set of rules as determined by the Secretary of State and not by the insurance industry. What matters is not whether the body administering the scheme is formally independent of the insurance industry but whether it is controlled by the arrangements put in place by the Secretary of State and whether it is properly monitored. The arrangements will achieve that.

The insurance industry is setting up a company to meet the requirements of the scheme rules. There would be time advantages to using such a body, with it potentially being able to make payments more quickly than if the Government had to establish a body. However, any body with which the Secretary of State makes arrangements will be subject to the standard call-off contract that gives us the power to change a supplier should it fail to operate as required.

I make it clear that we will undertake due diligence in ensuring that whoever ends up delivering the scheme does so in compliance with the rules that we set out. If any body does not meet our requirements, we will not make arrangements with it, and, if it fails to deliver, we will make arrangements with another one. I will respond to Amendment 32 when the noble Lord moves it. It may be relevant, and I will make a further statement at that point.

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[Lord Wigley]

They say in the world of chess, as I have quoted before, that a threat is more dangerous than the execution. Clearly the threat of the speeches coming in support of this amendment evoked the shooting of the fox before it got out of its hideaway. I am grateful to the Minister for his positive response. Obviously, it is in the hands of the noble Lord whether to now withdraw the amendment, but I hope that we will come back to this on Report.

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[Lord McKenzie of Luton]

My Lords, I hope we can be brief with this. In moving Amendment 36, I will speak to the other amendments in this group; namely, Amendments 37, 38 and 39. I have raised the issue with the Bill team, so this is an opportunity to put something on the record.

Schedule 2 precludes an individual from claiming benefits under the 1979 and 2008 state compensation schemes if an application is made under the mesothelioma scheme provided for in the Bill. Equivalent exclusions are added to the parallel Northern Ireland legislation. This probing amendment simply adds the word “successful” to the reference to “application”. As it stands, if somebody should apply to the mesothelioma payment scheme unsuccessfully, Schedule 2 would seemingly prevent access to the 1979 or 2008 statutory schemes. I cannot believe that that was intended and it would not be particularly fair. I beg to move.

[Lord Wigley]

My Lords, I will speak briefly in support of this amendment for the same reason: to try to get clarification with regard to the interplay with the 1979 scheme. I raised this matter at an earlier stage and would be very interested in some clarification from the Minister.

[Lord Freud]

I thank the noble Lord and the noble Baroness for these amendments, which I understand are probing amendments. I am hopeful that I can give complete satisfaction on the matter. The intention of these amendments is to enable a person to apply for a payment under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, or under the corresponding legislation in Northern Ireland, after they have made an application for a scheme payment but before a scheme payment is made or where the application is unsuccessful.

One of the conditions of entitlement under the 1979 legislation is that a person has not brought any action or compromised any claim for damages in respect of a disablement, for example by issuing proceedings against a negligent employer or insurer, or by settling a potential claim out of court. The provisions of Schedule 2, which these proposals would amend, ensure that people who apply to the scheme and those who bring an action or claim for damages are treated equally under the 1979 Act. If a person is prevented from claiming under the 1979 legislation because they have made an application to the diffuse mesothelioma payments scheme, instead they may still be able to claim under the 2008 diffuse mesothelioma schemes established under Part 4 of the Child Maintenance and Other Payments Act 2008 and the corresponding Northern Ireland legislation.