Clause 2 — Pleural thickening and asbestosis

– in the House of Commons at 9:40 am on 16th October 2009.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch 9:40 am, 16th October 2009

I beg to move amendment 10, page 1, line 15, leave out

', is not causing or is not likely to cause' and insert

'and is not causing but is likely to cause'.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: amendment 11, page 1, line 21, leave out

', is causing or is likely to cause' and insert 'or is causing'.

Amendment 12, page 1, line 22, at end insert

'if it is likely to cause such impairment'.

Amendment 13, in clause 3, page 2, line 10, leave out

', is not causing or is not likely to cause' and insert

'and is not causing but is likely to cause'.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Amendment 10 would amend the Bill's definition of the personal injury which would constitute actionable damage. Amendments 11, 12 and 13 would make similar changes to other parts of the Bill to ensure consistency.

I hope that I will not be thought to be critical of the Bill but, rather, will be considered to be a critical friend of Mr. Dismore. The subject of pleural plaques and whether they should be regarded as a condition amounting to an actionable personal injury is highly emotionally charged. As a former member of the Health and Safety Commission, I am well aware of the health and safety aspects of exposure to asbestos, and as a former Member for Southampton, Itchen-a constituency containing a disproportionately large number of people who had worked in the ship repair industry and related industries-I am well aware of the hardship caused to the families of those who have died or are suffering as a result of asbestos-related disease. I am therefore very sympathetic to the cause espoused by the hon. Member for Hendon. However, as a lawyer by training and background, I am also anxious that we should retain consistency in the application of legal principles, even when dealing with highly charged and emotional subject matter. Everyone is familiar with the dictum that hard cases make bad law. Indeed, I believe that some of us in the House are currently experiencing the application of that dictum in other contexts.

When clause 2 was discussed in Committee, David Howarth-I am sorry that he is not present today-argued that

"anyone who has been exposed to asbestos is in a similar position to someone with pleural plaques, asymptomatic pleural thickening or asymptomatic asbestosis, in that they are at risk of developing the serious diseases in the future." --[ Official Report, Damages (Asbestos-Related Conditions) Public Bill Committee, 1 July 2009; c. 12.]

In responding to his point, the Minister led us to believe that she was rather sympathetic to it and would wish to return to the issue on Report. It was with some amazement that I noted that the amendment paper contained no Government amendments, given that on two occasions in Committee the Minister had indicated that she would have to consider the issues and whether the Government might wish to table amendments.

What concerns me is that the Minister herself, having expressed reservations, seems still not to have pronounced on whether she wishes the Bill to proceed in its current form, whether she would like it to be amended, or whether she wishes that it was not there at all and wants to will it into the long grass. The position is made worse by the fact that on repeated occasions over the past 15 months or so the Government promised that the results of their consultation paper on this sensitive matter would be published shortly, very shortly or imminently, before the recess. In July, at the very end of the period when the House was sitting, no less a person than the Secretary of State for Justice said that he would respond after the recess. I have discussed the matter informally with the hon. Member for Hendon, and I believe that I am not alone in feeling surprised that we have not yet heard that statement from the Justice Secretary.

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Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

Does my hon. Friend agree that it is curious that the Government have not been more supportive of the Bill? As I understand it, the Bill would return to the position to the status quo ante, and would solve the problem caused by the House of Lords ruling, obviating the need for the Government to come up with a large amount of taxpayers' money. It could be a win-win situation for everyone.

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Photo of Christopher Chope Christopher Chope Conservative, Christchurch

I am not sure I agree that if the Bill were passed in its current form it would bring back the status quo ante, because I think that what is in the Bill is slightly different from the status quo ante. That is one of my reasons for trying to draw out a response from the Minister. However, I share my hon. Friend's scepticism and criticism of the extraordinary way in which the Government have been behaving.

I did a bit of research overnight, as one does, and noticed that when consultation was announced last year, no less a person than the Government Chief Whip-from whom we have already heard once today-expressed the view on his website, on behalf of his constituents, that it was very good news and that progress would be made as a result. I hope that he will return to the Chamber during the debate, and will let us know his present view of the way in which the Government have behaved since then.

The amendments are designed to try to find a middle way, and above all to provoke a response from the Government. As currently drafted, clause 2(1) would enable compensation to be paid even when the condition

"has not caused, is not causing or is not likely to cause impairment of a person's physical condition".

Even when there is no likelihood of future physical impairment, damages would be payable. How can such a proposition be consistent with the law of tort? I do not think that it can be, and, indeed, that is what the unanimous ruling of the House of Lords amounted to.

In February, during a debate in Westminster Hall-another signpost on the route march to what people hoped would be a declaration of the Government's views on the matter-Mr. Murphy said:

"People who have been diagnosed with pleural plaques can think of little else, and all that they can consider is that their next step could be a fatal one, so it is vital that compensation is paid."-[ Hansard, 11 February 2009; Vol. 487, c. 445WH.]

As he said, he was speaking as somebody who had worked in the mining industry for some 30 years during which he had been almost continuously exposed to asbestos. His own position is therefore almost identical to that of people with pleural plaques. They have had long exposure to asbestos, but do not yet have-and it is to be hoped will not get-pneumoconiosis as a result.

An issue to do with morbidity rears its ugly head at this point. We know that people who think that they are likely to get a serious, life-threatening or fatal disease sometimes become morose and morbid about that. The Government's consultation process was designed in part to raise the issue of whether we should try to allay the fears of people who have been exposed to asbestos by stressing that mere exposure to it does not necessarily result in physical harm let alone loss of life, although we know that, sadly, in many cases that has been the consequence.

What I propose is a middle way. I have used the word "likely". When we define something as likely to happen, we mean that there is more than a 50 per cent. chance or risk of a particular outcome. If we say something is as likely or not to happen we mean that there is a 50:50 chance, but if we say something is likely we mean that there is a greater than 50 per cent. chance of its happening. I think that if somebody has got a more than 50 per cent. chance of suffering a physical result from exposure to asbestos, a genuine argument can be put forward as to why they should be entitled to damages. However, I do not think that it is possible to put forward that argument with the same strength if it is said that there is a zero chance that a person will be subjected to some life-threatening disease as a consequence of such exposure. That highlights the challenge that the promoter of the Bill, the hon. Member for Hendon, must meet.

It is also a challenge that may have been causing some problems for the Government, but however difficult a legal issue might be, ducking it, running away from it, prevaricating or delaying is not helpful. The consequence of the Government's failure to address this issue is that thousands, if not tens of thousands, of people are completely in limbo land in respect of their claims. They are in limbo land if their claims are before the courts at present and have been suspended pending the announcement of the outcome of the Government consultation and its being known whether they wish to legislate. People who might have to pay any bills as a result of a retrospective change in the law are also in limbo land.

It appears that there is a lot of activity in the Labour party, with one group of people or another being blamed. Lord Mandelson has come in for quite a lot of stick in the Daily Mirror, I read; I do not know whether that is fair. What I do know, however, is that a failure to reach a decision is oppressive for all those people who are affected in one way or another by this situation. I hope that the Minister will tell us today, in words of one syllable, exactly what the Government will do and when they will do it, and that she will explain and apologise for the fact that the Government have not faced up to this issue up until now.

The Government must realise that if the opportunity to legislate on the matter through this Bill is missed there would have to be emergency legislation at the tail-end of this Parliament, and that might not be at all easy to achieve. The Bill could be used as a vehicle for achieving the objective, and at one stage I thought the Government were using it as such, but their failure to table any amendments notwithstanding the concerns expressed in Committee makes me suspicious of their motives. I may be being unfair, but I judge things today on the basis of the record, and the current Government's record of being open and forthcoming with the House is dismal and appalling in the extreme.

The amendments do not purport to provide a perfect solution. I believe that they are an improvement on the current draft, however, and I look forward to hearing what the Government have to say. I am sure that many Labour Members, as well as my hon. Friend Philip Davies who supports the amendments, are of a similar view. A few succinct words from the Minister-I am happy to give way to her if she wants to intervene on me now-could certainly allay a lot of concerns. Amendments 11 and 12 amend clause 2(3) and amendment 13 amends clause 3 to achieve the same objective.

We do not need to go into the alternatives possible should amendment 10 not be agreed-and, indeed, if the Bill is not passed-but perhaps the Minister will comment on the suggestion made in obiter dicta by some of the Lords in the House of Lords decision that those who are seemingly without a remedy in negligence may be able to get access to a remedy for breach of contract. If she were to share with the House any thoughts on that that she might have, it would inform the debate on future amendments and on Third Reading.

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Question put, That the amendment be made.

The House divided: Ayes 3, Noes 39.

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Division number 220 Todmorden Rail Link — Clause 2 — Pleural thickening and asbestosis

Aye: 3 MPs

No: 39 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly negatived.

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