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Clause 3 - Eligible dependants

Mesothelioma Bill [Lords] – in a Public Bill Committee at 2:00 pm on 10th December 2013.

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Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 2:00 pm, 10th December 2013

I beg to move amendment 16, in clause 3, page 2, line 39, leave out ‘assume’ and insert

‘it is to be assumed’.

Photo of Philip Davies Philip Davies Conservative, Shipley

With this it will be convenient to discuss amendment 17, in clause 3, page 2, line 45, leave out ‘assume’ and insert

‘it is to be assumed’.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I can be brief in relation to these amendments. The reason for inserting

“it is to be assumed” is not only that the drafting in the clause is inelegant, but that we simply do not use in statutory drafting—in this country or anywhere else—that form of imperative. It would make more sense and would be easier to apply if the words that I have suggested replace the word “assume” in subsections (2) and (4).

Photo of Mike Penning Mike Penning The Minister of State, Department for Work and Pensions

I accept that not only in legalistic but in plain English terms, the amendments are valid. However, I feel that they would have no effect on the clause. I am sure my hon. and learned Friend will accept that, as I explained earlier, at this stage I cannot accept them. They would cause real issues, not least with ping-pong with the other House, and we need to get the Bill on to the statute book. The fund needs to be operating, so that compensation can be given to needy recipients by July, and I think that the amendments would affect the Bill’s progress. I therefore ask my hon. and learned Friend to withdraw his amendment.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I agree with the Minister that there is no difference between the two amendments, but his job is not to protect the amour propre of officials or parliamentary draughtsmen; it is to put clear legislation in place. Given that the Minister has indicated there is no difference between the two and that my formulation is, I venture to suggest, better, and that there is absolutely no prospect of playing ping-pong with the other place and since there is no difference in reality, although I hope that he will come back on Report with these  proposals as Government amendments, on the basis of what he has said today, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I beg to move amendment 19, in clause 3, page 2, line 48, at end insert—

“‘relevant employer” means an employer who, at the time of the person’s exposure to asbestos—

(a) was required by the compulsory insurance legislation to maintain insurance covering any liability arising because of the exposure to asbestos, or

(b) would have been required by the compulsory insurance legislation to maintain insurance covering any liability arising because of the exposure to asbestos if the legislation had been in force at that time; and

(c) includes a successor in title to any such employer.’.

The amendment is important and I shall trespass on the Committee’s patience by asking that the clause be examined. The Committee will no doubt have observed that in clause 3 there is a reference to “relevant employer”, as there is in clause 2. The Committee will also have observed that the definition of “relevant employer” is contained only in clause 2, where subsection (2) begins with the words “In this section”, and there then occurs a definition of “relevant employer”.

Given that there is no definition of “relevant employer” in clause 3, the interpretation of the legislation if it comes before the courts will be that Parliament intended—at least, this is one possible interpretation—the words “relevant employer” in clause 3 to have a different meaning from that in clause 2. That is plainly not the intention; it is plainly an oversight in the drafting of the Bill. It is plainly something that should have been picked up by the Minister and his officials or in the other place, but it has not been, and it is plainly something that needs to be addressed.

The definition that I suggest is exactly the same as the definition in clause 2. I do not see the difficulty in accepting the amendment. It is clarificatory, as it needs to be, of what Parliament intends if the Bill receives Royal Assent in due course.

Photo of Kate Green Kate Green Shadow Minister (Work and Pensions)

I rise briefly to speak strongly in support of the amendment. It is absolutely clear in the minds of the Committee or anyone who has debated the Bill until now that the understanding of what is meant by a relevant employer in clause 3 should be no different from clause 2. It is imperative that we follow the hon. and learned Gentleman’s expert and excellent advice and get the drafting right.

Photo of Mike Penning Mike Penning The Minister of State, Department for Work and Pensions 2:15 pm, 10th December 2013

My hon. and learned Friend the Member for Sleaford and North Hykeham has demonstrated thoroughness in his examination of the Bill, especially in introducing the amendment. He might have introduced it not least because he is worried about eligible dependants who do not immediately appear to meet the eligibility criteria in the Bill. However, I can assure him that in clause 3(1)(a), the eligibility criteria outlined in clause 2 are brought to bear. I understand his points, but my legal team does not agree with his learned opinion.  Although I will consider the measures in the period between now and Report, I must disagree with him on this occasion, as I did earlier. As I said, we will consider it again, but on the basis of the evidence before me, the amendment is not required, so I ask him to withdraw it.

Photo of Nick Brown Nick Brown Labour, Newcastle upon Tyne East

Surely the point of the amendment is that it puts the matter beyond any doubt whatever. I must say that until the hon. and learned Gentleman put it into my mind, it had not occurred to me that we would use different definitions in different clauses, but now that he has explained it, I can see how somebody might argue in front of a court that that was not only arguable, but could be inferred from Parliament’s intentions. That is not what is intended—my hon. Friend the Member for Stretford and Urmston made the view clear, and the Minister has not contradicted it—so why do we not just agree to the amendment and put the matter on the record and clearly beyond doubt once and for all, since it is what the Minister intends?

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I am extremely troubled by what I just heard from the Minister. I cannot be any clearer. It has nothing to do with clause 3(1)(a). In line 25, on page 2 of the Bill, occur the words “relevant employer”. I am asking the Minister to look at that now. In clause 3 of the Bill, there is no definition of the term “relevant employer”. If he goes back in the Bill to line 8 on page 2, for the purposes of clause 2, there is a definition of “relevant employer”, but if he looks at line 5 on page 2, he will see that it is solely for the purposes of clause 2. I think that I heard the Minister say that his legal advice differs from the opinion that I am urging on the Committee. I cannot see how it possibly could.

Photo of Mike Penning Mike Penning The Minister of State, Department for Work and Pensions

I do not intend in any way to discredit my hon. and learned Friend. I have considered the amendment in the Committee’s presence. I will consider it again between now and Report and, if he is right, I will table the amendment then to alleviate the situation, but I will seek advice between now and then. I will seek his help with my officials in doing so, because we probably cannot afford his services in any other way. [ Laughter. ] That was not meant in a derogatory way; it is the skills that he brings to the Committee that I would use.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

That is normally a joke that I use against myself. The Minister has said that if I am right, the Government will make the amendment. As right hon. and hon. Members will know from newspaper reports, I am paid a great deal outside this place to be right. On this occasion, I am right. I look forward to the Government bringing forward the amendment on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.