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Clause 15 - Technical Committee to decide certain insurance disputes

Mesothelioma Bill [Lords] – in a Public Bill Committee at 2:30 pm on 12th December 2013.

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Photo of Nick Brown Nick Brown Labour, Newcastle upon Tyne East 2:30 pm, 12th December 2013

I beg to move amendment 68, in clause 15, page 8, line 22, after ‘which’, insert

‘must have a membership including representatives of the insurers, the potential insurance claimants and employers, and’.

Photo of George Howarth George Howarth Labour, Knowsley

With this it will be convenient to discuss amendment 69, in clause 15, page 8, line 40, at end insert

‘which must include at least one representative of each of the parties mentioned in subsection (1).’.

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

The clause and amendments I have tabled deal with the technical committee that will handle disputes. These are likely to fall into a number of reasonably well understood areas: whether or not a previous employer or their insurers can be found; whether or not the previous employer still exists or the person with responsibility to ensure the employer’s liability still exists; and other reasons, as set out in clauses 2 and 3 of the Bill, which we considered earlier. Very helpfully, the Minister has written to us to set out what the other reasons are. Effectively, the other reasons are circumstances in which either the employer or the insurer is bankrupt, still exists, but could not reasonably be pursued for a payment.

My question, which I hope the Minister can address when he responds, is this: if the question of whether the employer or the insurer can be found is specifically mentioned in the Bill, and if the question of whether they exist—it would be perfectly reasonable, if they did not, to put that forward as a reason for proceeding under the scheme as a last resort—is also mentioned in the Bill, why is the position in the event of bankruptcy, when the institution still exists but is in receivership and cannot make a payment, not mentioned in the Bill, rather than embraced in the catch-all phrase “other reasons”?

The obvious answer is that there are some other other reasons, apart from bankruptcy. If that is the answer, will the Minister say what they are? I understand that they will be covered in the regulations, but I have not seen those, so I do not know what they will say. There is a case to be made, if only for consistency, for setting out all the reasons in the Bill. If there is a need for a catch-all provision at the end to cover something that most people would think was reasonable, but that nobody has thought of at the moment, that should be said explicitly.

Those are the issues the technical committee will have to deal with. It is clear from our discussions on Second Reading and in Committee that there are parties coming to these questions from different points of view. There are those representing the interests of the employers, who thought they were insured; there are those representing the interests of the insurers, who were happy enough to take the premiums, and who had the obligation to provide recompense where there was a case for it; and there are the interests of the victims. The victims will typically be the employees, who are in the direst circumstances, as Members have said—I do not want to go over that again—and for whom time is strictly limited, because life expectancy with this condition is very short. They are looking for some financial compensation, in the hope that it will alleviate their pain and suffering in the months that remain and help to provide for their dependants after they have died.

Those interests are different, and the purpose of the amendments is to explore whether they should not all be explicitly represented on the technical committee. Even if the Minister does not accept that that should be stated explicitly in the Bill, I hope he will be able to tell  the Committee how he intends to ensure that there is fairness on the technical committee, that there is somebody on it who will look sympathetically at the arguments that are advanced by different points of view and that it is composed not just of people who, while they should, of course, have technical expertise, earn their living in the same walk of life and, possibly, from people who represent one side of this argument, but not another.

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

I wanted to intervene to be helpful, but it is just as easy to speak now.

The role of the technical committee is purely to decide on cover; it is for others to decide on bankruptcy, and I am sure the right hon. Gentleman knows that. However, there is an intention that the technical committee will not go unmonitored and that the Employers’ Liability Tracing Office will have stakeholders on it to give it the oversight the right hon. Gentleman was asking for. I believe that is here within these arrangements. As he mentioned, others will be covered in the draft regulations, and we are working on that as we prepare them.

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

I am almost allergic to the phrase “stakeholders”, although you might look on it more benignly, Mr Howarth. The Minister’s assurances give me some hope. I assume he means that different points of view will be represented on the committee. If he could just nod, I will cheerfully not press the amendment to a vote.

Mike Penning indicated assent.

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

I thank the Minister. 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 47, in clause 15, page 8, line 32, after ‘court’, insert ‘or which is an issue in proceedings which are before a court’.

The amendment seeks to address a deficiency in subsection (4), which makes it clear that the technical committee

“does not have jurisdiction to decide a question”— a question of cover—

“that has already been decided by a court.”

By the same token, if a court is yet to decide a question of which it is already seized, the technical committee should equally be deprived of jurisdiction to decide the question, otherwise one might end up with the position that the clause is plainly designed to avoid whereby the technical committee comes to a different decision from a court of competent jurisdiction. Where a question is in issue in proceedings that are already extant, plainly the technical committee ought not to have jurisdiction. It is for that reason that the amendment is both desirable and, I say respectfully to the Minister, absolutely necessary.

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

My note indicates that the amendment would provide extra clarity that the technical committee cannot give a decision on a matter that is pending before a court. Our Bill managers indicate that the technical committee cannot do that.

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

If the Minister is right, it is fine. Why cannot the technical committee decide a question that is already in issue in proceedings that are before a court, even if there has not yet been a trial? Why not?

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

I may have to write to my hon. and learned Friend. I am not legally trained in any way, but my understanding is that the technical committee cannot pre-empt a court’s decision. The Bill specifically states that the technical committee cannot do so, and I am more than happy to write to him before Report to explain why that is within the Bill. I hope he understands that I do not intend to accept the amendment.

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

If I may, I will make a speech sufficiently long for a note to reach the Minister from those on his left who are scrawling it at the moment.

The Minister is saying that the amendment is unnecessary because the technical committee does not have jurisdiction to decide, or would not decide, a question on cover that had yet to be decided by a court but that is in issue in court proceedings that have already commenced. If that is right, I would be perfectly prepared to withdraw the amendment. At the moment, I cannot see why that would be the case on the basis of the Bill. I am happy for the Minister either to intervene or to make another speech.

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

Anyone who serves on a Bill Committee as a Minister will be passed notes. As my hon. and learned Friend predicted, a note has arrived saying that the Bill does not prevent the technical committee from making such a decision, so I apologise if I have misled the Committee. The note goes on to ask why the technical committee would wish to do so. Arrangements are provided in the Bill.

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

I think the Minister has indicated that he will write to me and to the other members of the Committee on that point before Report. No doubt it is my fault for not being clear about my concerns.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.