Armed Forces Bill

Debate between Lord Brown of Eaton-under-Heywood and Baroness Jolly

Thursday 3rd March 2016 Grand Committee

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, welcome the Government’s announcement proposing compensation for service personnel who have contracted mesothelioma. It perhaps does not matter, but I am rather concerned about the wording of Amendment 21, particularly proposed new subsection (2). In the second line of that proposed new subsection, the requirement on the scheme is to compensate those who,

“have been diagnosed with diffuse mesothelioma as a result of”,

working for the Armed Forces. The words “result of” create all sorts of problems because, as has already been explained—it is well known to all of us who have had to deal with this ghastly disease down the years—it is very difficult to know how one came by what may have been just a single brief exposure and thus how one came to suffer the disease.

I ask for some clarification: what is to be the scope of this proposed new scheme for compensation? Plainly, it will not be necessary to establish ordinary liability in the way of negligence or breach of some statutory duty. Will it be necessary to prove even that one has been exposed to asbestos in the course of one’s service? I did national service more than 60 years ago. If, say, after the 40-year period in which this can develop—it can actually probably be even longer than that, so say after 40, 50 or 60 years—suddenly one receives this terrible diagnosis, does the mere fact of having done national service or whatever 40 years or more earlier entitle one at that point, without more, to compensation? Will it be necessary to prove even exposure to asbestos?

I point out that in the non-military context the courts have been grappling with this problem for years. There was a case called Fairchild, then one called Barker, and then in 2011 I was in the Supreme Court for the last case on it: Sienkiewicz v Greif. We have pretty much arrived at the situation now where anybody can get compensation where they have this diagnosis and can show that they were exposed to asbestos during any earlier period—wherever it may have been, in schooling or employment—and assuming that there is money there, the employers were insured and all the rest of it. True, the claimant must establish liability, but that is not generally much of a problem. If they were exposed to asbestos the likelihood is that they will be able to show negligence or breach of some protective duty under some statute.

All I ask is that there be clarification: is this intended to apply—one hopes that it is—to literally anybody who served in the Armed Forces and later contracted mesothelioma, or will it be necessary to prove at any rate some exposure to asbestos? That may create difficulties if service was 30 or 40 years ago.

[Baroness Jolly]

My Lords, I add my congratulation to those of other noble Lords to everyone who campaigned for this so hard and for so long. It seems that these last few sufferers were almost proving elusive. I am delighted that the Government announced that they will bring them into the scheme. The British Legion has also been hugely active in this regard and deserves congratulation, too.

The noble Lord, Lord Alton of Liverpool, showed remarkable tenacity in all this, particularly today, and in his quest for research funding. As noble Lords said, research is critical. On that point, it is worth mentioning for the Committee—and the noble Lord, Lord Alton—that the NHS does not record employment. A veteran goes to sign up the day after he or she leaves the services and the NHS takes their name, address, number and whatever. That is something else he might need to think about. It is not just in this area that the NHS recording employment would be really useful. It would help with research, treatment and, in some cases, diagnosis. There is work still to be done there.

Although I welcome this amendment, the devil is of course in the detail. Tough decisions always have to be made about the lump sum balanced against the annual income from war pensions and anything supplementary, multiplied by the life expectancy of a partner. I would like to quiz the Minister slightly on how this will be managed. Will people be given advice and support? If that comes from within the Veterans Welfare Service, which is part of MoD, how can that advice and support be seen to be independent?