Mesothelioma Bill [HL]
Lord Wigley Excerpts(12 years, 6 months ago)
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Lord Freud
My Lords, I know that the noble Lord does not want me to go into detail, but I can commit to going on working with him on this issue, which is very technical. If we work out that something needs to be adjusted, we will have time to do it in the other place.
Lord Wigley
I express my appreciation for the increase from 70% to 75%, although a lot of us would have liked to see 100%. I would like clarification on the new matter that the noble Lord introduced with regard to the review. The mechanism for this might be introduced in another place. Will he shed some light on the means by which any changes could be implemented? Will order-making procedures be available, or will it be a matter of going back to primary legislation whenever such changes are needed in the light of developments?
Lord Wigley
My Lords, I support the amendment. I shall address in a moment the points made by the noble Lord, Lord Howarth, but I want to signal my support for Amendment 2 and the associated amendments, which will allow a very small percentage, some 1%, of the levy on active insurers to go towards a supplement for further research into mesothelioma. As we heard from the noble Lord, Lord Alton, a few moments ago, any way of encouraging new people to come into this area of research must be worth while, and that is something that the noble Lord, Lord Howarth, did not address in his remarks. At present the mechanisms are not generating enough research and the research that is currently being undertaken is in danger of being eroded, if not ended. I am also glad that Amendment 24 specifies that the Secretary of State must consult insurers, medical charities and research foundations before making regulations in this respect. I congratulate the noble Lord, Lord Alton, on his perseverance on the matter.
As has been mentioned, in 2011 the British Lung Foundation invested £850,000 in research into mesothelioma, and £400,000 was invested by other charities. In Committee the indications were that it did not appear that much money was coming from the Government. Now, if I understand it correctly, the Medical Research Council has found some rabbits to come out of the hat, and that is all to the good. However, more work clearly needs to be done. If we give due credence to the figures that have been quoted and requoted about the 56,000 people who are in danger of dying from this, if any progress can be made by way of research to reduce the likelihood of those people dying, that is something that we as a House have a duty to undertake. Whether or not this is the appropriate vehicle to do so, it is the vehicle that we have to hand at the moment and we should not lose this opportunity.
The agreement brokered by the British Lung Foundation has meant that over the past three years four large insurance firms have collectively invested £1 million a year into research in this area. I warmly welcome that initiative. It has seen concrete results, as has been mentioned, such as the creation of Europe’s first mesothelioma tissue bank. However, that funding will soon be coming to an end and we need to ensure that the research goes on. The firms that were involved in the initial agreement have indicated that the industry as a whole should be involved in funding future research—that idea comes from them—and that a voluntary agreement would be unworkable. If we are to secure the breakthrough that we need in this area, funding must be made available for research. If that needs legislative underpinning, so be it. Perhaps the Minister can indicate that if the amendment passes, or if he finds another way to reach the same objective when the debate goes on to another place, he will consider including the possibility of a short annual statement on the amount of funding going into mesothelioma research from all sources and the progress that is being made.
Lord Lester of Herne Hill
My Lords, I greatly look forward to the Minister’s reply. I just want to say one sentence. The very first thing I had to do when I came to the Bar in 1964 was to act in relation to the Industrial Training Act 1964, which, as I recall, imposed a levy on the building industry in order to subsidise training within the industry, and it worked perfectly well.
Earl Howe
My Lords, I accept that fully and I will come to that point in a second.
Certainly there was a blockage in the research process, but it was not total. There is good news. As the noble Lord, Lord Alton, informed us, spending on mesothelioma research is not as low as noble Lords might believe from the discussions in Committee. The latest figures from the Medical Research Council show that its annual spend on mesothelioma research rose from £0.8 million in 2009-10 to £2.4 million in 2011-12. We should not belittle those figures. That is in addition to the research supported by the £1 million a year donated by insurance companies to the British Lung Foundation, and research supported by the National Institute for Health Research. Therefore, on the ability of the system to support publicly funded mesothelioma research, we are not knocking at a closed door.
My noble friend Lord Stoneham is right that the issue that is holding back progress on research into mesothelioma is not lack of funding but the lack of sufficient high-quality research applications. This is an issue that we in the Department of Health, working with the National Institute for Health Research, have been seeking to address. I will now set out what we propose. There are four elements to it.
First, the National Institute for Health Research will ask the James Lind Alliance to establish one of its priority-setting partnerships. This will bring together patients, carers and clinicians to identify and prioritise unanswered questions about treatment for mesothelioma and related diseases. It will help target future research, and, incidentally, will be another good example of where patients, the public and professionals are brought into the decision-making process on health.
Secondly, the National Institute for Health Research will issue what is called a highlight notice to the research community, indicating its interest in encouraging applications for research funding into mesothelioma and related diseases. This would do exactly what the noble Lord, Lord Alton, wants, and what the noble Lord, Lord Empey, suggested. It would make mesothelioma a priority area.
Thirdly, the highlight notice would be accompanied by an offer to potential applicants to make use of the NIHR’s research design service, which helps prospective applicants to develop competitive research proposals. Good applications will succeed.
Finally, the NIHR is currently in discussion with the MRC and Cancer Research UK about convening a meeting to bring together researchers to develop new research proposals in this area. The aim is for the event to act as a catalyst for new ideas that will further boost research into mesothelioma. I was very interested in what the noble Lord, Lord McKenzie, told us about the offer of matched funding from the ABI. I look forward to hearing more about that.
As my noble friend Lord Freud mentioned, on 25 July in the Palace of Westminster precincts, he and I will co-host an event run by the British Lung Foundation that will focus on mesothelioma. I will take this opportunity to invite noble Lords to join us to hear about current research and to get a family perspective on the disease.
The four steps that I have set out offer a better and much more realistic way of achieving what we all want to see happen. The problem with the remedy that the noble Lord proposed is that it will not of itself deliver that objective. I could sum up the issue by saying that the availability of funds does not guarantee the spending of funds. Nor does it guarantee the quality of research on which such funds would be spent. It is also worth making the point that it would create a precedent that might encourage other and perhaps less deserving interest groups to seek special treatment for a disease about which they care passionately.
I hope the noble Lord will recognise that his amendment has galvanised the Government into action. He can credit himself with having achieved a valuable outcome by tabling it. I hope that he will consider not pressing it. I have given undertakings today that I will be keen to take forward with him and with all relevant stakeholders.
Lord Wigley
May I ask the noble Earl to respond to my earlier question on whether, in the context of the four proposals that he has brought forward, there might be a mechanism for some form of annual report on the progress of mesothelioma research so that we do not lose focus on this important issue?
Lord Howarth of Newport
My Lords, the common theme of the amendments in this group is that they increase eligibility with a view to increasing justice. I add my personal thanks to the noble Lord, Lord Freud, for all his personal commitment to achieving just outcomes through the legislation, and I hope that he will be willing to contemplate the amendments that I have added to this group.
First, I entirely support my noble friends Lord McKenzie of Luton and Lady Sherlock in their amendments which would bring forward the start date for eligibility to 10 February 2010. Amendment 5 in my name would extend eligibility to a person diagnosed with diffuse mesothelioma who was self-employed at the time of exposure to asbestos. Amendment 6 would extend eligibility to a person who is a member of the same household as a person exposed to asbestos in the course of their work.
The employers’ liability insurers have bluntly and, I feel, rather brutally, expressed their view that the self- employed should not be eligible. As they have explained to us:
“As employers’ liability insurers will be funding the untraced scheme, payments from the scheme will only be made to those who would have been covered by employers’ liability insurance”.
The ABI has, however, made one small, decent concession, saying that under the untraced scheme, if someone has been negligently exposed during employment and self-employment but is unable to find an employer or insurer to claim against, they will be able to receive a payment from the untraced scheme without a deduction for the period they were self-employed.
In Committee, my noble friends Lord Browne, Lord Wigley and Lord McKenzie explained that on the kind of industrial and construction sites where people were negligently exposed to mesothelioma, there was frequently no real distinction between employed and self-employed status. In many cases, it may have suited employers to classify people as self-employed who were, to all intents and purposes, employed. Indeed, in Committee the noble Lord, Lord Freud, himself accepted that,
“some people will appear to be self-employed where the reality is that that was an artificial, tax-driven construct. In that case, if they can demonstrate that in practice they were acting like an employee, they would be eligible for a payment under the scheme.”.—[Official Report, 5/6/13; col. GC 220-221.]
I am very grateful for what the noble Lord said then, but we need to go a bit further. We need to ensure that everyone, whether they were nominally, technically or otherwise self-employed, is covered and is eligible to receive payments from the scheme.
What is the position of those who were genuinely self-employed, did insure, but whose documentation has gone missing? Should they not be included? The ABI itself admits:
“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”.
The Minister undertook to ask the ABI for its figures, but unfortunately, he then had to write to us to say that it did not have any reliable figures. What is clear, by the ABI’s own admittance, is that the numbers are very small.
The suffering of self-employed people who contracted diffuse mesothelioma, and the suffering of their dependants, is no less than the suffering of people who were employed in the technical sense. I believe that it would be wrong for us to abandon them, and I believe that it would cost very little by way of an addition to the levy, to embrace them in the scheme.
In Committee there was extensive concern expressed by noble Lords on all sides about the predicament of members of the household of someone who had been exposed to asbestos in the workplace, who were diagnosed with mesothelioma, when the person who was actually employed had not been diagnosed. Indeed, a household member might have predeceased an employee who has not, or not yet, been diagnosed. The noble Lord, Lord Alton, reminded us of one particular instance, movingly described to us in our proceedings on other legislation, of the sister of the noble Lord, Lord McNally. Other noble Lords in Committee were aware of individual cases where this had happened. In particular, the most frequent instances were when a wife, or perhaps a daughter, was regularly doing the laundry and washing the contaminated overalls.
In writing to us, the noble Lord, Lord Freud, gave us an estimate that an average of 214 cases of mesothelioma would be caused by environmental exposure in the years 2014-24. I take it that that is a wider category that would include household members; indeed, the friend of the noble Lord, Lord Walton of Detchant, the consultant neurologist who died, might have been included. We are talking of a significant, though not a huge, group of people. Is it right to abandon them on the technicality that they were not themselves employees?
The term “secondary exposure” was used in Committee, but I think we are really talking about the direct effect of employers’ negligence. It is the same lethal fibres in the same workplace that will have caused the disease to hit a person, whether self-employed or a household member in the circumstances I have described. Surely it was through employers’ negligence that employees were allowed to come home wearing their contaminated workwear; they should not have done so. On this, the ABI has been silent. Perhaps even it cannot contrive presentable reasons as to why it should not pay out of a scheme which, after all, is not based on precise legal liability.
This scheme deals with the situation of claimants who, by definition, cannot avail themselves of their legal rights. I do not think that the employers’ liability insurers ought to hide behind legal technicalities. If, however, the employers’ liability insurers are adamant, and if the Minister remains reluctant to compel them, then I hope that he will consider levying the public liability insurers. He was as good as his word; he discussed the question of public liability insurance in this context with the Association of Personal Injury Lawyers and with the ABI. He wrote to us following that discussion to say that, in the main, it would be the public liability policy that would apply when the affected person was not directly employed by the liable employer. In many cases, I think it is the same insurer.
I have not tabled an amendment relating to public liability insurance because, as I take it, this is already covered by Clause 13(1), which states:
“The Secretary of State must make regulations requiring active insurers to pay a levy”.
It does not specify active employers’ liability insurers, and in Clause 13(7) I do not see that the definition of the term “active insurer” excludes the public liability insurers. I would be grateful if the Minister would confirm that the legislation as drafted does give him the power to levy the public liability insurers. If that is not the case, I am sure that there will be no difficulty in tabling an amendment for Third Reading.
The Government’s 2008 scheme does not worry about who in particular was responsible for cover; it simply compensates people who have contracted mesothelioma. This new scheme should do the same, and in particular, should embrace mesothelioma victims who are self-employed or household members. The scheme is intended belatedly to make amends, and it should do so fully and generously. If the employers’ liability insurers would accept that, then that would be gracious on their part. I beg to move.
Lord Wigley
My Lords, I support these amendments and I will pick up the important points made by the noble Lord, Lord Howarth of Newport. I entirely support his emphasis on the need to ensure that those who suffered at second hand—whether it was the wives, daughters, or sometimes mothers of people in the industry who have been infected by the particles from washing clothes—should most certainly be covered if they have suffered a loss of health as a result.
The implication is that the insurance policies that were provided for the employees in case of negligence by the employer only relate to the employee in a very narrow sense. That needs to be explored in depth because there is a category of people who have undoubtedly suffered ill health and some who have died, and there may well be many more that come through from that avenue.
However, I return to the generality of these amendments. It has been noted in this debate that the scheme proposed by the Bill has its roots in the consultation announced by the previous Labour Government in February 2010, which is the date in these amendments. However, the scope of the assistance proposed in that consultation was, of course, significantly wider than what we have ended up with in the Bill.
Lord Howarth of Newport
My Lords, Amendment 16 is in my name. Again, the common theme is that the amendments in this group seek to maximise the amount that will be paid to mesothelioma victims and their dependants. I will come in a moment to my own amendment but I would like to say a few words in strong support of the amendments in the names of my noble friends Lord McKenzie of Luton and Lady Sherlock. It was certainly not the fault of the claimants that the documentation went missing and it is very hard to see why they should bear the burden. The Minister has spoken of the dangers of a disproportionate burden on the employer’s liability insurers, but is it not a disproportionate burden on the mesothelioma victims?
The ABI has put forward various arguments as to why payments under the scheme should not be at the same level as the average of court awards. The first is that an incentive must be provided for claimants to go to court. If they could just as easily get 100% by going to the scheme, why would they bother to go to court? With respect to the ABI, this argument is nonsense. This will not be a matter of choice for the claimants. The Minister’s letter to us of 4 July made it clear that the scheme is designed as a,
“last resort where all routes to civil action against the relevant employer or insurer are closed to the individual”.
The procedures under the scheme will make that a compelling reality. There will be the single portal and the identical search for documentation. Whether someone is on their way to having their case heard in court or considered by the administrators of the scheme, they will have recourse to the scheme only if they are unable to have recourse to the court, so the incentive argument is nonsense.
The ABI has also said that it is important to ensure that the overall cost to insurers is sustainable in the long term. I believe that the overall cost of a somewhat improved scheme—we have been debating today a variety of ways in which that scheme might be improved —would indeed be affordable. Apart from the fact that the insurers did very well for decades in being able to invest the premiums of mesothelioma sufferers whose documentation could not be found and who therefore could not bring a case, we have to remember in addition that between 1979 and 2008 the employer’s liability insurers were effectively subsidised by the taxpayer to the tune of hundreds of millions of pounds, as they were allowed to keep the amounts paid out under the Government’s pneumoconiosis scheme to offset against the cost of the liabilities of the insurers.
Even now, because the Minister declined in Committee to incorporate in the Bill the possibility of creating parallel and comparable schemes for other diseases such as asbestosis, asbestos-related lung cancer or pleural disease, only some 50% of sufferers from asbestos-related diseases stand a possibility of being compensated under this scheme. Those other 50% will in effect be subsidising the insurers. Those are a handful of reasons why I take with deep scepticism the proposition that the insurers could not afford to improve the scheme. We know, indeed, that their case load will fall, so even if it was a little pricey for them in the early years it would rapidly become more affordable. The Government are also going to smooth the way over the early years.
It is unlikely that the cost of these improvements would cause the cost of the scheme to creep above the 3% of gross written premiums. I prefer the DWP’s calculations on this to the ABI’s. However, if that were to happen it would not be a disaster and is not terribly relevant, because it is other factors that move premiums. The Minister’s fear that any improvements to the scheme would lead to the point at which additional burdens were placed, by way of higher premiums, on employers and industry is misplaced. The premiums that are charged in this market are the product of multiple factors and paying the beneficiaries-to-be somewhat more generously would not have an effect on the premiums. I do not believe that the percentage of gross written premiums has any bearing on what premiums are sought in the marketplace. The employer’s liability insurers pitch their premiums at the maximum that competitive market conditions allow. They will always do that, so the Minister’s fear is misplaced and he should call their bluff on that.
Finally, the third reason that the ABI gives is to stop people getting more than the courts would award. In its briefing, it said to us:
“As the payments will be made … on a straightforward tariff, some people will receive more compensation under the scheme than they would have received in civil compensation, and the aim is to set the tariff at a level that means this will only happen in a small number of cases”.
Elsewhere, it told us that the intention is for the tariff to be set “a little below” the average of awards made in civil cases. A little below? The proposition is that 30% should be docked from the average of court awards in the payments provided under the scheme. Seventy per cent was not enough and while we are very grateful to the Minister for easing the level of payments up to 75% of the average of court awards, that is still not enough. Nor would 80%, as in the amendment of my noble friend Lord Browne and the noble Lord, Lord Wigley, be sufficient in my view. Ninety per cent is the very minimum with which we could be satisfied. As the Association of Personal Injury Lawyers has pointed out, the Financial Services Compensation Scheme, which provides compensation where insurers have become insolvent, pays at the 90% level.
I turn for a moment to my own Amendment 16, which would prevent what I regard as excessive demands for repayment by the DWP through its agency, the Compensation Recovery Unit. The rationale for the figure of £110,000 is that if we expect the average of payments over the next 10 years to be £87,000—it may be fractionally more, now that the Minister has moved it up to 75%—and if, as the Minister has advised us, the average recovery required from claimants will be £20,480, add those two figures and you get to £107,500. Round that up a little and you get to £110,000. That is appropriate because payments under the scheme, unamended, will be meagre. At the same time, the DWP —and no doubt the Treasury, lurking behind it— aggressively intends to reclaim 100% in recovery of benefits and lump-sum payments from people who will have received only 70% of what they might have received in court.
Moreover, the department intends no abatement in its reclaiming to take account of pain and suffering, which they would do in the case of an award by the courts. So we risk the £87,000 typical award by the scheme being reduced by around a further £20,000 as a result of the DWP’s reclaims. According to the Association of Personal Injury Lawyers, the best estimate of what mesothelioma victims and their dependants will receive from the scheme will, therefore, be only 60% of what the courts might have awarded. It cannot be right that these people should receive only 60% of their legal entitlement when they have suffered a double negligence: negligence on the part of their employer and negligence on the part of their insurer.
The Minister has said that his intention, in this legislation, is to remedy a market failure. To be frank, that is a euphemism. We are talking about a gross and scandalous dereliction of their proper responsibility on the part of a number of insurers, affecting a significant number of people who should have had cover. This has been a great evil and we should make amends as fully and generously as we possibly can. Is that double negligence on the part of employers and insurers, from which they have already suffered, to be compounded by a double meanness on the part of the Government, insisting on taking 100% of 70% and taking no account of pain and suffering? The Government are being too greedy here.
Lord Wigley
My Lords, I shall speak primarily to the lead amendment, to which I have added my name, and return to Amendment 12, which stands in my name, at the close of my remarks.
The scheme proposed by the Bill will provide neither the full amount of compensation to which the sufferer would usually be entitled, nor full protection for those suffering from asbestos-related diseases. It is utterly unjust that those who have already suffered a wrong, due both to their injury and to the negligence of their employers in losing their insurance records, should now face losing a significant percentage of their damages.
The Government have offered the justification that mesothelioma claimants should be encouraged to seek out “all other avenues” before coming to this scheme. As I said during earlier stages of the Bill, this attitude shows a flagrant disregard for the harsh realities of this disease, not to mention the fact that the sufferers usually die very soon after diagnosis, so leaving their families with less compensation than they would otherwise have been entitled to. Of course, I welcome the move to increase the compensation payable from 70% to 75%, and I thank the Minister for securing that improvement. However, whether the Government propose that claimants should receive 30% or 25% less than the average worth of a claim, it is essentially unfair that any reduction is happening at all. By point of comparison, the Pneumoconiosis Act 1979 was designed to award full compensation to claimants and is reviewed annually.
The difference between 100% and 70% compensation for these claims is not to be balked at. On 25 June, the noble Lord, Lord Wills, asked the Government what assessment had been made of the likely impact on the insurance industry if it was made to pay the full 100% of compensation to sufferers under the proposed scheme. In his response, the noble Lord, Lord Freud, said that over the first 10 years of the scheme, if the tariff were 100%, the amount of compensation paid would total £451 million. Under the 70% tariff originally proposed, the insurance industry was, by comparison, forecast to pay £322 million. However, the money that the insurance industry saves by getting away with 70% or 75% is a cost suffered by the victims’ families.
The Minister also said that the Government,
“are getting an average of £87,000 a head to people who suffer from this terrible disease”.—[Official Report, 25/6/13; col. 654.]
It is presumably now nearer to £94,000 at the 75% level. According to the Association of Personal Injury Lawyers, if the tariff was set at 100% and based on the figure proposed by the noble Lord, Lord Freud, the amount of compensation awarded would be around £124,000. That is a £30,000 shortfall in what the victims and their families can expect and it is a big difference. It is a difference of millions of pounds for the insurance companies but, my goodness, that £30,000 difference for the victims will be even harder to bear.
Finally, I want to share with the House two of the many comments that I have been sent by families of asbestos victims. Sandra Emery wrote:
“It took Parliament … a hundred years to ban asbestos. As a result, I have lost my mother and brother to mesothelioma. Please do not compound the error by passing such inequitable legislation”.
As Kerry Jackson says:
“All victims and their families deserve 100% of what they are entitled to … this is a disease that has come through pure neglect”.
I ask the Government for an undertaking that they will continue to seek other ways to increase the compensation to around 100%. I plead with them to reconsider. I will not be pressing my amendment for the 80% level, which I would have done had the Minister not come forward with an increase. However, in order to register my support for the principle, if the 100% amendment is pressed to a vote I shall support it.
Mesothelioma Bill [HL]: Impact
Lord Wigley Excerpts(12 years, 7 months ago)
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Lord Freud
My Lords, the point about research is that it is pretty complicated, one reason being that the Medical Research Council is constrained by the quality of the research proposals presented to it. There is a bit of a chicken-and-egg situation going on, as I see it, and I am working with my noble friend Lord Howe and the British Lung Foundation to break that situation. We are hosting a seminar on the importance of mesothelioma research shortly to try to stimulate the proposals for funding. As for the second aspect of the question, clearly there has been much debate on the exact level of compensation. In the end, this has been a very complicated and intricate deal to make sure that we can get good sums of money. We are getting an average of £87,000 a head to people who suffer from this terrible disease who have not been able to find any compensation whatever.
Lord Wigley
My Lords, those who have suffered industrial lung diseases get the full level of compensation under the 1979 pneumoconiosis Act, when they cannot identify their former employers to sue them, so by virtue of what reasoning should there be a scaling down for those who suffer from mesothelioma and cannot identify their insurance policies? They suffer equally and have great need of those funds.
Lord Freud
My Lords, I know that everyone in this House would agree with the proposition that we want to get as much money as we possibly can to mesothelioma sufferers, particularly those who, through no fault of their own, have not been able to trace the insurer that should be paying them the employers’ liability compensation. The reality is that we cannot trace the insurer in roughly 10% of cases. We are trying to make sure that we trace as many as possible. They will get the full amount, and then get a payment—not quite as much as I would want, but a safe, sustainable payment, for this group of people, and that is a lot better than the nothing they are getting currently.
Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013
Lord Wigley Excerpts(12 years, 7 months ago)
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Lord Hardie
My Lords, I declare an interest as honorary president of Capability Scotland and share noble Lords’ concern about the changes to the regulatory regime. In that regard, I refer noble Lords to my observations of 13 February at cols. 737-78, which I shall not repeat. The present regulations, among other things, affect claimants who have entered into a Motability agreement and are thereafter hospitalised. The noble Baroness, Lady Thomas of Winchester, derived some comfort from the assurance that Motability will not recover those vehicles if a patient is hospitalised, but if one reads paragraph 7.10 of the Explanatory Notes, one sees that that is not what the Government have said. They say that the Motability scheme has stated that it would aim to avoid recovering vehicles from hospital in-patients affected by that change.
That is not the absolute assurance that hospital patients will not lose their vehicles. Without such an assurance, the reality is that if a person is in hospital for a particularly long period, the payments made by the department to Motability on behalf of the patients will not be made and the vehicle—the car, motorised scooter or motorised wheelchair—may well be recovered. Indeed, the Explanatory Notes recognise that if it has to be recovered, Motability will give some allowance, depending on the condition of the vehicle when it is recovered.
These are concerns, because the present system means that payments direct to Motability continue to be made after the hospitalisation of a claimant. That is recognised as an exception to the rule that social security benefits are affected after hospitalisation. In my view there is a good reason for that, because these payments are payments of a capital nature to enable people to have the necessary facilities to give them the independence that they need. They are different from revenue paid direct to the person for their maintenance.
Regulations 10 and 11 remove this exemption for no good reason. It is no answer to say that it is intended to bring Motability users into line with other recipients of DLA or PIP. As I have sought to explain, they are in a different position to the other claimants. Moreover, the consequences of this change are draconian. There is a real risk of the repossession of necessary equipment, resulting in the inability of such claimants to lead independent lives after they leave hospital until they are able to renegotiate other Motability contracts. The noble Baroness, Lady Hollis, explained the complexities of that. There will be a delay in obtaining necessary equipment, during which period these people will not be able to live the independent lives that they have enjoyed previously. Can the Minister advise the House what timescale is involved between the order and delivery of a purpose-built powered wheelchair, scooter or modified vehicle?
I also ask the Minister what is the urgency in promoting this change, particularly in view of the announcement by the DWP on 17 June, already mentioned, of a further consultation on the mobility component of PIP? Would it not make sense to have an integrated approach and to leave these changes to form part of the consultation process? Has there been any consultation with interested parties or the public at large about this significant change? If the Government are not willing to await the outcome of the consultation, can the Minister tell the House how many people will be affected by this proposed change?
The loss of a wheelchair or car may have greater implications in different parts of the country. I have been anxious to assess the whole issue of Motability payments and their geographical distribution because I suspect that the impact of the loss of a vehicle might have greater impact in rural areas than in cities where there are probably better—although not ideal—transport facilities for wheelchair users. On 4 June, I tabled four Questions for Written Answer about the Motability scheme and received a reply dated 13 June. I refer noble Lords to Hansard cols. WA 255-56. I commend the Minister and his officials for the speed of the reply but it did not answer all my questions. My Questions HL594 and HL595 sought data for three years—2010, 2011 and 2012—but the answer provided data only for the last year, preventing me from undertaking any effective analysis.
Moreover, in relation to Questions HL596 and HL597 seeking information about participants in the Motability scheme, the Minister replied:
“The Department does not hold information on the numbers of Motability customers in each local authority district or area of Great Britain”. [Official Report, 13/6/13; col. WA 256.]
That reply echoes his statement on 13 February at cols. 741-42.
I have some difficulty with these statements. As I understand the system, if a claimant elects to use the Motability scheme, payments on his or her behalf are made by the department directly to Motability. If my understanding is correct, the department must know how much it is paying to Motability and on whose behalf payments are being made. This information will identify the local authority, district or area of each claimant on whose behalf payments are made. I have written to the Minister seeking a full answer to my Questions and I look forward to receiving that in due course.
If it is truly the case that payments are made by the department to Motability without it knowing the identity of the beneficiaries, it is a matter of concern that the department cannot account for these payments. Such a failure may be of interest to the Comptroller and Auditor-General, the Public Accounts Commission and perhaps even the Treasury. Until the department provides the House with the information about such payments, I invite the Minister to amend these regulations by deleting this particular change.
Lord Wigley
My Lords, I am grateful for the opportunity to speak in this debate and to congratulate the noble Lord, Lord Alton, on bringing it forward. I should declare an interest as president of Mencap in Wales and a number of other disability organisations. The matter that we are discussing is of immense concern to countless thousands of disabled people who are dependent on the vehicles they get for their mobility. This is true generally; it is a particular problem in rural areas, to which I will come in a moment. Perhaps I might pick up the points as they have been made in turn.
First, on consultation, may we please have an assurance from the Minister that all relevant disability organisations will have a full opportunity not just to submit evidence but to engage in meaningful two-way discussion on this matter, and that the process will not be truncated and time-limited?
Secondly, on the more than 600,000 Motability vehicles, the Government must know how many people stand to lose their adapted vehicles, so why will they not come clean with the statistics? As the noble and learned Lord, Lord Hardie, mentioned a moment ago, they must know those statistics. I congratulate him on the Questions that he has tabled and the statistics that he has obtained, which bring this matter into sharp focus.
Thirdly, I draw the attention of this House to the disproportionate geographical impact. I obviously have concern with Wales. With 5% of the population, it has 7.4% of the total casework and 8.4% of the higher rate caseload. This is for an amalgam of historic industrial reasons, which we will not go into now. Those people stand to lose, and many are in areas with the lowest incomes per head in these islands—places such as Blaenau Gwent and Merthyr Tydfil, where I used to live, and where almost 13% of the population have a dependency on the mobility component. In my next-door area of Anglesey, which has one of the lowest GVAs per head of anywhere in the United Kingdom, at just 55% of the UK average, there is a caseload of 7.2%. That is in a rural area where they do not have alternative means of transport and taking away vehicles will deprive disabled people of the ability to get around.
The changes we are talking about will compound the disability and poverty suffered by these people. It will be made infinitely worse if they cannot have their mobility. They will be very badly impacted by these changes.
Baroness Wilkins
My Lords, I declare a tangential interest as a recipient of DLA since its inception, although being no longer of working age I am unaffected by the introduction of PIP. I will not repeat many of the excellent points that other noble Lords have made.
In a recent document, Motability set out the ways in which it is trying to ameliorate the changes and lessen the punitive impact of reclaiming customers’ vehicles. It states that the price to individual customers wishing to buy their current car will be in the order of £8,000 to £12,000. In the current climate, when disabled people have been repeatedly hit by cuts, how will many be able to afford that kind of outlay? Will the loan sharks be out in force to make yet another killing from people desperate not to lose their employment?
The Minister for Disabled People’s answer to those people facing the loss of their employment because of the introduction of PIP has been the Access to Work scheme. What work has been done to see if this could in fact be a more expensive alternative? For example, the chief executive of my local disability organisation needed to use Access to Work while he could not drive a car. The daily cost of the journey both ways was £80—£400 per week. On top of that, he has the cost of taxis for shopping, getting to the doctor, et cetera. Compare that to £55.25 high-rate mobility element of DLA, which provides him with a transport for all these activities.
Mesothelioma Bill [HL]
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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.
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.
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.
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.
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.
Mesothelioma Bill [HL]
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Lord Martin of Springburn
My Lords, I am very interested in the question of families being exposed to asbestos. I draw on my own experience as an apprentice metalworker in the mid-1960s. Sometimes there would be a rush job to manufacture electric heaters. Asbestos board was used to hold the elements in those heaters. It was therefore required to drill dozens of holes in that board. As young apprentices, we were not trained in the dangers of asbestos. Strangely enough we quite liked it when there was a rush job, as we got some overtime. The metal was covered in oil and it used to go on our clothes. Meanwhile, you just blew the dust off the nice white board and you did not realise that any harm was being done.
The point that I am raising is that in the factory where I worked there were dozens of young ladies, in the same age group as myself, who assembled the electric heaters. They were usually given the same job to do every day. Two of my female colleagues, two sisters, spent all day drilling the asbestos board, regardless of whether there was overtime. There was what was called stack drilling: there were maybe five or six boards packed together in what was known as a jig, and 24 or 25 holes were drilled. When the drill went through, the asbestos went all over.
It was those sisters’ mum who did the washing in their household. In the communities that I lived in, in the mid-1960s, washing machines were a luxury; they were not in every home. Later, I had the good fortune to represent the constituency where I had served my apprenticeship. At that time I spoke to one of these young ladies and asked her how she was getting on and how her mum was keeping. She never mentioned asbestos but she said, “Mum’s getting breathless”. I did not have the heart to say directly, “Have you checked out whether it’s asbestos-related?”, but I said that she had best make sure that her mum got to the doctor. It was a worry of mine that her mum may well have contracted a condition because she had two hard-working daughters who worked every day with white asbestos boards.
Lord Wigley
My Lords, I rise to speak very briefly in support of the amendments put forward by the noble Lord, Lord Howarth of Newport, and particularly to address the question of the self-employed which is covered by Amendment 7.
Many people working as jobbers in industries who may undertake patching work in schools or in other buildings where asbestos was involved—perhaps electricians who need to drill into the walls—will have had this exposure. As a consequence, many of them will have suffered, and many will have died. Their need for recognition and for help by way of compensation is as great as that of those who are not self-employed. I understand from where the Government have come on this—this is an agreement with the insurance industry, of course—but that in no way lessens the need and the suffering of those who are self-employed, who might not be the people who the insurance industry would choose to recompense in this way. If that is the case, does it not behove the Government to step in to fill the breach for those who cannot be covered by such a scheme? I simply ask the Government and the Minister to think about that between now and Report.
Lord Browne of Ladyton
My Lords, I rise briefly to support both of my noble friend Lord Howarth’s amendments, and I do so—relatively unusually, I think—by referring the Minister to the briefing from the Association of British Insurers which I received about one of my noble friend’s amendments, but not about the other. It is the omission of the other amendment that interests me. However, let me deal with the first one first.
The briefing contains an argument against Amendment 7 which is summarised essentially in one sentence of this short briefing:
“As employers’ liability insurers will be funding the untraced scheme, payments from the scheme will only be made to those who would have been covered by employers’ liability insurance”.
That is the argument that the insurers make and I understand why they make it. The association then goes on to imagine that most people who worked in this industry may have been employed at one time and self-employed at others, and that is probably right—there will have been people who were exposed to these fibres both in an employed and in a self-employed capacity. Because of the way in which these cases are dealt with in the courts, that will not disqualify these people from being included in the payment scheme. However, the association goes on to make a point which I think it believes is crucial to its argument but which actually grossly undermines it. In the last sentence 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”.
Let us assume that the phrase “very small category” is the equivalent of “a very small number”. I am not quite sure why the association used the word category; I think that it means a very small number of people. If indeed that is right, and if indeed we are doing an injustice by excluding a very small number of people from this scheme, that is an argument for extending the scheme to that very small number of people, because it would be grossly—disproportionately—unfair to exclude them.
The second point relates to Amendment 8, which essentially proposes extending the scheme to those who have been exposed in a secondary way to asbestos but through exactly the same route as those who are employed and covered by compulsory employer’s liability insurance, or who would have been covered had it been in existence prior to 1972. That is the way in which the payment scheme is constructed. It strikes me as very odd that the Association of British Insurers does not deal with this issue at all in the brief. As I have listened to the debate unfold in the Grand Committee this afternoon, I have wondered why that was the case. I can certainly figure a set of circumstances where there is a traceable employer and where there is a secondary infection. If a man comes home from the shipyard with fibres on his clothes it does not matter whether they are washed—if the fibres get into the air of the environment in which his children or other relatives live and they breathe them in, they are at risk of developing mesothelioma eventually if these fibres are trapped in the fibres of their lungs.
There must be cases where that negligent act has caused secondary infection and mesothelioma and there has been a successful litigation against the employer of the person who carried the fibres. So there is a chain—a direct link—and the person who would be sued would be the employer.
I do not know the answer to this, because I do not know the details of the employer’s liability compulsory insurance scheme well enough. However, I ask the Minister, if he can tell us at some stage during the course of our deliberations, whether the insurers pick up the payment for the successful litigation because they were the insurers in the employer’s liability policy, or because of public liability insurance, which is a separate and different but compulsory insurance for people who are in workplaces. Either way, this is likely to be the same group of insurers. I suspect that it may be through the route of the employer’s liability compulsory insurance, and if that is correct, may it be the case that this payment scheme already applies to their efforts? I am not sure whether it does or not, but if it definitely does not, it definitely ought to. Since these general insurers, who carried or presently carry the risk of employer’s liability compulsory insurance, are likely to be the same people who are carrying the risk of public liability insurance, I am sure that the Minister can persuade them that it should.
Lord Freud
My Lords, clearly I speak for the whole Government generally. The specifics of this are really for the MoD to pursue. There will be lots of issues around this but we need to get this Bill through. If we start going into these areas within this Bill, we risk endangering the start times and the processes. But I hear my noble friend and I know the depth of his feeling on this.
Lord Wigley
Before we move on, perhaps I can pick the Minister up on the words that he used a moment ago, that the Government do not have a liability. Is there not a plethora of cases where no liability exists? In most of the cases under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979, despite the fact that there was not a liability, the Government accepted their responsibility to help these people. The Minister may not be able to do it in the context of this Bill, but can he give me an assurance that he will look at this again in the future?
Lord Freud
I am sorry; if I said that, I truncated some words. What I meant to say is that the Government do not take out employer’s liability insurance, so effectively they self-insure, and different departments have different arrangements to pay compensation. Clearly, my noble friend Lord James feels that the ones at the Admiralty are not adequate.
The noble Lord, Lord Howarth, asked about the self-employed. We do not have any data on that area. Again, the core reason that we are not including the self-employed here is that, for obvious reasons, they were not required to have employer’s liability insurance.
Baroness Butler-Sloss
My Lords, I, too, have put my name to Amendment 31. It is with some hesitation that I rise to speak after the two formidable speeches that we have just heard. Having put my name to the amendment, though, I want to say something to support it. It is indeed a modest amendment but it has enormous potential advantages for important research seeking new treatment and a possible cure. We have already heard from the noble Lord, Lord Walton of Detchant, what he thinks could be done and why it needs to be done. Of course, I defer to him.
As one of three judges in the Court of Appeal, I heard a number of these cases, and each story was tragic. Although I was a judge for 35 years, these stories have remained with me. We know that currently there is no cure. We know that currently the treatment is poor compared with that for other forms of cancer. It is crucial and urgent that we have proper research. As the noble Lord, Lord Alton of Liverpool, has said, it is a scandal that this is so poorly supported, when it is a killer but other forms of cancer can be treated and people can live for a long time. Sufferers die two years after the diagnosis—it is like motor neurone disease, and even that, as I understand it, gets more research funding than this does. It is extraordinary that the people who suffer from it are not properly regarded by the state or indeed by insurers. It is high time that the lack of financial support should be remedied with this Bill, at least to some extent.
I very much support the principle of the amendment. Like the noble Lord, Lord Walton of Detchant, I do not entirely support the wording. I do not think that matters because we are not going to vote on it today, and if the Government can come up with better wording and be supportive, that is exactly as it should be. The amount of money that would be raised under the present scheme is a modest £1.5 million. It would be much better if the Government felt able to match it; that would be valuable.
I was entertained by the reference by the noble Lord, Lord Alton of Liverpool, to the Gambling Act, which shows a very useful precedent. It is just possible that if some law were passed in this Bill, we could then to go the insurers on a voluntary basis and say, “If you don’t, it will be backed up by primary legislation”. So we want it there as a spur. If that can be done in gambling, I really do not see why it cannot be done in mesothelioma.
Lord Wigley
My Lords, I, too, have added my name to Amendment 31. I thank the noble Lord, Lord Alton, for the diligent commitment that he has shown to these issues, which I know is appreciated by all concerned. He deserves to succeed with this amendment. Following on from what the noble and learned Baroness said a moment ago with regard to the potential leverage that an amendment such as this could carry, it reminded me of the term used in chess that the threat is always more dangerous than the execution. Having this in the armoury, I suspect, would be very useful indeed.
Under the proposed new clause, the scheme administrators would be permitted to charge an additional annual administration fee of some £10,000 from each insurer. One can argue, certainly, that there could be a sliding scale there. That is detail; it is the principle that we are after here. The clause sets out that all funds raised from this fee would be invested into research for treatments for this awful disease. Listening to the noble Lord, Lord Walton, speak from his own experience of the medical world, we see the pressing need for these funds to be made available. They should be available already. They should be coming from the normal course of research funding. But as they are not, we need to do something and there is an opportunity to do so here.
Lord Wigley
I believe I am right in interpreting that there are cases that could get compensation for diffuse mesothelioma under the 1979 Act who might equally get compensation under this Act if they had not got it under the 1979 Act. That being so, I raised the question at Second Reading as to how the scales of compensation compared between the two. Is there any information that the Minister can give on that? If he has already included it in today’s letter, which I believe has been sent to my home, I apologise as I have not yet seen it.
Lord Freud
The noble Lord is raising a slightly different question. What we are looking at here is the question of whether one can claim on the scheme even if one has received the 1979 payment. We will be dealing in later amendments with the offsetting issue. It may be easier to leave this question until those amendments.
I ask the noble Lord to withdraw these amendments.
Lord Wigley
My Lords, the fact that we are at a late stage of the debate today should not stop us from speaking and pressing this most important of the amendments to the Bill that we are considering. If we get nowhere on it today, I suspect that we may need to come back to it on Report. As was rightly said a moment ago, this is something that was referred to by almost all the speakers at Second Reading, and it should not go by default at this point in time.
It strikes me that if someone is entitled to 100% of the compensation because of their condition, their suffering and what they have gone through, but they have not had that compensation because at some time in the past some insurer failed to deliver it, that does not in any shape or form justify a 30% abatement of what they will get. Their suffering should justify the 100% level. There may be an argument about 10% here or there, although I do not like even that, but I certainly do not like the idea of it being abated by 30%.
No doubt there has been some horse-trading on this. It would be interesting to know where the Minister started his argument. If 70% was the first offer made by the insurers, then I suspect that there is room to move up from that figure. If there is not, then this is something that Parliament should be addressing further. I do not recall with the 1979 Act that there was a reduction in the compensation on the basis that it was going to be easy. The argument put forward at the time was that it was fair compensation for the suffering. If that is the case with other legislation, why on earth should there be less for people who have suffered so much? This really is something that should be pressed.
Lord Wills
My Lords, I, too, support the amendments. I very much agree with my noble friend on the Front Bench and the noble Lord, Lord Wigley, that these amendments go to perhaps the most important issue in the Bill. I agree with everything that has been said so far although, given the hour, I do not intend to rehearse all the arguments.
I assume that this particular issue must lie very near the heart of the deal that the Minister has done with insurers. I am confident, from everything that he has said today in Committee, that he has done the very best deal that he thinks possible, particularly given the need to get a resolution quickly so that those who are suffering from this terrible illness get the support that they deserve as quickly as possible. I am sure that that has been at the forefront of his mind. He has said already in Committee that he is going to return to his discussions with insurers, and I hope that he can assure the Committee that he will convey to those insurers the strength of feeling that he has heard, at this late hour in our proceedings, about this issue. He knows it already. He has heard it at Second Reading and this has been a consistent concern throughout.
I hope he will remind his interlocutors that there is a real risk that if they do not agree what is widely conceived of as being a just settlement—and this is not a just settlement, in my view and that of every other speaker so far this evening—and, worse still, if they threaten delays or legal action as a result of anything that the Minister goes back to them with, this Bill is most unlikely to be the last word on these issues, given the strength of feeling in both Houses of Parliament on this issue, which we have seen time and again in recent years and which is responsible for this Bill coming before us. I hope that he will remind them of the risk that any future legislation may well be tougher than this Bill.
Mesothelioma Bill [HL]
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Lord Wigley
My Lords, I welcome this Bill as a major step in the right direction but one that needs some aspects clarified and perhaps strengthened at later stages. I join the number of noble colleagues who have paid tribute to the Minister for his genuine commitment in these matters. I think that is recognised by everyone. I also want to put on record a tribute to the trade unions for the work that they have undertaken in this area. Very often, that is overlooked. The trade unions have played a major role over the years in trying to improve standards and safeguard people from such diseases.
Noble Lords may be aware from the debates last year of my interest in these issues. I had some involvement as an MP for a slate quarrying area in the 1979 Act, which is relevant to some mesothelioma sufferers. I represented an area that had a Turner & Newall/Ferodo factory that used asbestos.
As a number of noble Lords have stated, it can take decades for symptoms of this horrendous disease to surface, and it almost always develops as a result of exposure to asbestos. Those who contract mesothelioma are overly represented in construction and certain industrial sectors, although people can contract the disease, as has been stated by a number of noble Lords, by undertaking renovation work on buildings or even washing the clothes of those who work with asbestos. It has been stated that even teachers and pupils may have had an exposure from the decaying fabric of school buildings where asbestos was in the middle of walls and had become exposed.
The disease is notoriously difficult to diagnose, so it is often in its advanced stages by the time a diagnosis can be made. After diagnosis, however, the progress of the disease is usually rapid and the average life expectancy after this point is only two years, as has been said. Since the symptoms can take decades to develop, frequently employers have gone out of business by the time the sufferers are in a position to seek compensation and insurers’ records often have been destroyed, making it difficult to trace which insurer the employer was registered with.
Since the Employers’ Liability (Compulsory Insurance) Act 1969 came into effect, most employers have been required to obtain insurance to cover their liability for any bodily injury or disease acquired by their employees as a result of their employment. However, that did not solve all the problems by any means. The Pearson commission on civil liability and personal injury considered these matters, particularly that of no-fault liability. It is a shame, as the noble Baroness, Lady Taylor, suggested, that greater progress was not made during that time.
Eventually, the 1979 pneumoconiosis Act provided rough justice for a number of industrial lung diseases, including mesothelioma, that were not otherwise covered by the compensation provision. I would be interested to know how the Minister sees the compensation tariff levels provided by this new Bill compared with those provided under the 1979 Act. Can we perhaps have, for Committee, the draft scheme rules and an outline of draft orders indicating the levels of age-related compensation which the Government have in mind?
I am sure noble Lords on all sides of the House will be glad that progress is being made. However, the Mesothelioma Bill is narrower in its scope that some of us would ideally like to see. It offers recourse to those suffering from diffuse mesothelioma only—and eligible dependants, of course—and it is available only to those diagnosed on or after 25 July 2012. The Bill makes provision for a scheme that will make payments to these persons provided that they have brought no action against an employer or that employer’s liability insurer because they were unable to do so. Surely that date, as has already been suggested, should be three years earlier, in line with the three-year limitation period in law. That is an objective basis on which to make a change. I hope that we will have an opportunity to return to that point in Committee.
I draw to the Minister’s attention the fact that conditions excluded from this Bill’s provisions, presumably because of the difficulty of proving causation, have already been included in an administrative scheme that pays compensation to all asbestos victims at Turner & Newall asbestos factories. If they can do it, why cannot the Government do it?
Alongside this, the Ministry of Justice is, I understand, planning to consult on changes to the legal process for mesothelioma claims, including the introduction of a compulsory online gateway and other somewhat controversial measures. No doubt we will have an opportunity to return to this in Committee, as we shall to the implications of Schedule 2, where I fear the wording may inadvertently exclude persons who should still be included in the purview of the 1979 Act.
The proposed mesothelioma support scheme is the central plank of this new provision. Although it is of course welcome that the Government are making progress for many sufferers of this debilitating disease, a number of concerns have been raised by organisations with expertise in the field. The scheme has been criticised for having been drafted without consulting claimants, support groups and relevant trade unions. The fact that support will be limited to those suffering from diffuse mesothelioma has also been highlighted, in contrast to the Employers’ Liability Insurance Bureau proposal by the previous Labour Government in 2010. Thompsons Solicitors have also pointed out that hundreds of people have unnecessarily lost out on compensation due to the delay of more than two years between the 2010 consultation closing and the present scheme being announced in July 2012.
Most controversially, I think, and as the Association of British Insurers has recognised, the scheme will pay only approximately 70% of the average value of claims.
That is surely an injustice. If the suffering justifies the 100% figure, on what possible basis can a lower figure be offered in settlement of the liability? The insurance industry’s rationale for allowing this injustice to occur is apparently that it will maintain an incentive for people to attempt to trace insurers so that claims will be brought to this scheme only once all other avenues have been exhausted. I suggest that paying only 70% shows a flagrant disregard for the highly distressing and incapacitating symptoms that sufferers experience at a time when they are likely to be seeking compensation, as well as the very short life expectancy of these people. Expecting sufferers to exhaust all other avenues before bringing a claim to the scheme makes it quite likely that the person in question will have died before compensation is gained, and will put increased pressure on terminally ill people. I urge the Government and the industry to reconsider this aspect of the proposed scheme.
I would be grateful to hear the Minister’s thoughts, if not now then at a later stage, on comments that have been made by representatives of the insurance industry that the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill currently under consideration in the National Assembly for Wales may undermine the provisions included in the Mesothelioma Bill. The Assembly Member under whose charge the asbestos Bill was presented has written to me stating that his Bill would have no adverse relationship with the legislation now under consideration. I would welcome the Minister’s comments on this matter and would like to know whether any discussion has taken place with Welsh government Ministers in Cardiff on the most worrying aspects of the interrelationship of the two Bills. Having said that, I welcome the step being taken.
Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012
Lord Wigley Excerpts(13 years ago)
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Lord Wigley
I will raise another question which has not been covered; it might give the Minister a little more time to get answers to the questions. On the information that has been given to me, it is noted that a full impact assessment has not been published for the instrument because it has no impact on the private sector or civil society organisations. I am surprised that this does not have some impact on civil society organisations. Many such organisations deal with the people who are impacted by these changes. I would be glad of some clarification, to know exactly when impact assessments are made and when they are not.
Baroness Stowell of Beeston
I am afraid that I will have to write to the noble Lord on that one. I do not have the answer immediately in front of me.
I can at least respond to one of the questions put to me by the noble Lord, Lord McKenzie. On appeals against WCA outcomes—the decision as to whether to put somebody in the work-related activity group or the support group—42% of appeals heard by the tribunal in the first quarter of this financial year were successful. What I do not have is the number of actual appeals. Regrettably, I will have to follow up in writing to the noble Lord on the other question that he raised about appeals. That notwithstanding, I hope that I have been able to provide enough information to satisfy the Committee today that these new regulations, which introduce this new sanctions regime, as I stressed at the start, very much emphasise the importance of the requirements on people in the work-related activity group as to how they can return to the workforce at the right time. That is what most people in work-related activity definitely want. It is our responsibility to make sure that they are clear on their requirements and that those requirements help them in that regard.
Enterprise and Regulatory Reform Bill
Lord Wigley Excerpts(13 years, 1 month ago)
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Baroness Whitaker
My Lords, I rise to support what the noble Baroness has just said. One of the first things that I did when I joined the House of Lords was to speak in favour of admittedly a similar aspiration provision, but in my view appropriately. It might have been on an amendment from the noble Lord, Lord Lester, in legislation in 2000. The concept eventually found its way into the 2006 Act.
When Parliament agreed this provision it was on the basis of discussion with a wide range of organisations. It was widely welcomed. Why? We do not have a fair and unprejudiced society. It may be that everyone in this room is fair-minded, but fairness and good relations between groups do not exist when, for example, Gypsy, Traveller and Roma people are harassed about where they can live. The noble Baroness mentioned that young people now describe themselves as Muslim in larger numbers. Gypsy and Traveller children dare not describe themselves as Gypsies and Travellers, because of the things that have happened to them.
We have a society in which children with disabilities are bullied in school. Members of minority groups that make up our society are denied jobs because of stereotyped expectations. Old people are despised and neglected. The ordinary self-respect that people need, particularly children, is undermined. This is at the expense of social cohesion and an ordinarily decent society. I support this group. I think that it is necessary to give the EHRC a proper strategic approach to help bring about a fair society.
Lord Wigley
My Lords, I am very glad of the opportunity to intervene briefly in this debate and should declare an interest in regard to my involvement with Mencap Wales, Autism Cymru and a number of other disability organisations. I congratulate warmly the noble Baroness, Lady Campbell, on introducing this important amendment. I agree with what she said, as I did with the noble Lord, Lord Low.
I recall the battles in the 1990s to establish disability rights. Those battles were led by Lord Ashley, Lord Morris, John Hannam and others, across party boundaries, because of the importance of enshrining in law the principles of rights. My fear is that we are in danger of a movement backwards today.
The general duty is necessary to avoid regulatory gaps or the effect of overlaps. Rather than being repealed, it should, if anything, be amended to establish more clearly the EHRC’s overriding purpose, powers and duties and to support the focus on being an equality regulator and a general human rights institution.
I have concern also about the proposal to move from a three-year to a five-year progress report cycle. There is a real danger here that if the cycle were to start coinciding with the electoral cycle, we could find many of these issues becoming politicised, which is in nobody’s interest. I have further reservations about the repeal of the conciliation powers, which would amount to the loss of the EHRC’s wide-ranging, background role in monitoring the effects of legislation.
The Government need to make a very strong case for repealing Section 3 as the Bill proposes, and I doubt that they can do so. If they are not prepared to think again between now and Report, we should support similar amendments at that stage in the Chamber in order to give the EHRC and all involved in disability the strongest possible messages.
Lord Lester of Herne Hill
My Lords, I apologise to the mover of the amendment that I was not present when she spoke. I shall be extremely brief, because I explained at Second Reading that nothing in this clause would remove any of the commission’s powers or functions and why I regarded what was being deleted as not harming, but improving, the performance of the commission.
The general duty arose not in the 2010 Act but in the 2006 Act, and the 2006 Act unfortunately put the cart before the horse, as some will remember. Instead of doing what was done in the 2010 Act, which was to reform the underlying discrimination law and bring it all together, the then Government instead put the cart before the horse by setting up a commission without having reformed the underlying law. They put into the 2006 Act this general duty, which is unenforceable and purely aspirational—for those who pull faces when I say that, I remind them of the aspirational language, which is very fine but not capable of being enforced in any court of law. What they did in addition to that, and which is unaffected by the Bill now before the Committee, was to put in Section 8:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of equality and diversity … encourage good practice in relation to equality and diversity … promote equality of opportunity … promote awareness and understanding of rights under the equality enactments … enforce the equality enactments … work towards the elimination of unlawful discrimination, and … work towards the elimination of unlawful harassment”.
That is in Section 8 and is unaffected by anything in this present Bill. They then went on in Section 9, also unaffected by this Bill, to provide that:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of human rights … encourage good practice in relation to human rights … promote awareness, understanding and protection of human rights, and … encourage public authorities to comply with section 6 of the Human Rights Act 1998”.
Those are completely intact, as are all the enforcement powers given to the commission under the 2010 Act. Rather like the socio-economic disadvantage rhetoric that the Government have rightly not sought to rely on, all that has been taken away in the general duty is the following:
“The Commission shall exercise its functions under this Part with a view to encouraging and supporting the development of a society in which … people’s ability to achieve their potential is not limited by prejudice or discrimination ... there is respect for and protection of each individual’s human rights … there is respect for the dignity and worth of each individual … each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.
Everybody in the Committee would agree with those sentiments, but the point that I make as a lawyer, for which I do not apologise, is that none of that is capable of being enforceable in any way. A duty that is written in water—it is clearly aspirational—may make us all feel joyful but it is not sensible to have it in legislation for a commission that in the past, as many in this Room will know, has been distracted by an overbroad and vague mandate. It is time that the new commission, as it were, concentrated on what it is meant to do, which is strategic law enforcement and everything else associated with that. I know that I am in a minority in this Committee but I for one consider that it is perfectly legitimate to get rid of Section 3, while retaining intact all the commission’s powers and statutory functions.
The Deputy Chairman of Committees
Indeed, so my predecessor told me, but since then we have had the great advantage of electronic checking and back came the reply just as I have given it. That may be for the assistance of future proceedings of Grand Committee.
Lord Wigley
My Lords, before we leave that point, it would be very helpful if the Annunciator could keep up with the debate, so that we can be here in time, because there are times when it is five or 10 minutes behind in showing the changes of speakers and the issue being debated.
The Deputy Chairman of Committees
With great respect to the noble Lord, that is known as the art of keen anticipation, which I learnt many, many years ago.
Unemployment: Older Women
Lord Wigley Excerpts(13 years, 4 months ago)
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Lord Freud
Noble Lords will all be aware of our concern to reduce the level of inactivity in the economy and the level of unemployment is only one way of looking at the figures. The most important thing is how many people are employed and what is happening to the level of inactivity. I am pleased to say that the level of inactivity for this group is going down quite sharply. Since the election, 110,000 fewer people are inactive, and that is something we are continuing to drive.
Lord Wigley
My Lords, is there not a danger of being a little complacent in this matter? Does the Minister accept that between August 2011 and August 2012, there was, over the UK as a whole, an increase of 7% in the unemployment rate for women over 50, but in Wales the increase was 14%, which is quite worrying? Does he accept that there is cause for concern and that we should take steps to minimise those figures?
Lord Freud
My Lords, when you have scarce resources, you must direct them efficiently. When you look at other groups with high rates of unemployment—the rate is 16% for women in the 18 to 24 age group while in this group the rate is 3.9%—you have to consider where you can most efficiently direct support. Do not forget that in the time we are talking about pension age has been increasing. The element of the impact of the increase is very small on a figure of unemployment that across the economy as a whole is probably below the rate of frictional unemployment.
Workers’ Memorial Day
Lord Wigley Excerpts(13 years, 9 months ago)
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Lord Freud
My Lords, I am pleased to say that alongside my colleague Chris Grayling I wrote to the general-secretary of the TUC on the matter of Workers’ Memorial Day. We are in regular contact with him on a large number of matters, and this is one of them.
Lord Wigley
My Lords, on the question of mesothelioma, to which the Minister referred a moment ago, can he indicate whether the ideas which he will be working on over the coming period will require legislation? If so, why are the Government not taking advantage of the legislation that is currently going through this House?
Lord Freud
My Lords, it is possible, depending on the outcome, that we will need primary legislation on mesothelioma. However these things take time and we will have to structure any solution in consultation with the various stakeholders in order to get there. There is not time at the moment to attach any relevant legislation quite as rapidly as the noble Lord suggests.