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Clause 16 - Challenging decisions of the Technical Committee

Mesothelioma Bill [Lords] – in a Public Bill Committee at 2:45 pm on 12th December 2013.

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Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 2:45 pm, 12th December 2013

I beg to move amendment 48, in clause 16, page 9, line 18, after ‘arbitration’, insert

‘or to the relevant court’.

Photo of George Howarth George Howarth Labour, Knowsley

With this it will be convenient to discuss amendment 49, in clause 16, page 9, line 30, at end add—

‘(6) In this section “the relevant court” means—

(a) the High Court in England and Wales or Northern Ireland, or

(b) the Court of Session in Scotland.’.

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

Once the technical committee established by clause 15 has reached a decision, clause 16 tells us that that decision may be challenged by a person who is dissatisfied, but the decision may be challenged under the Bill only by referring the question to arbitration. I think the Bill contemplates that one ends up with a statutory arbitration in accordance with the relevant provisions of, at least in England and Wales, the Arbitration Act 1996. That is desirable in so far as it goes. It enables a route of recourse for someone who is dissatisfied with the decision of the technical committee. But my understanding from my limited knowledge of arbitration is that parties pay their arbitrators. So an applicant who is dissatisfied with a decision of the technical committee, rather than having the right to go to court will have to refer the decision he does not like to arbitration in a private forum, which therefore will not attract publicity. More importantly he will have to pay the arbitrator or arbitrators. If the matter were appealed to court, he would not have to pay the judge because the judge is provided by the state to determine the dispute.

So it is an added cost to applicants who are dissatisfied with decisions of the technical committee in circumstances where we are trying to give applicants, whether they are those who have been diagnosed with mesothelioma or their dependants, the largest possible chunk of compensation. These amendments suggest that the applicant should have a choice to refer the matter either to arbitration, which is sometimes said to be speedier than court, although it is not always, or to the court. I venture to suggest that this is a desirable group of amendments. I hope that the Minister will feel able to accept them.

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

The amendments were obviously tabled in good faith. As my hon. and learned Friend the Member for Sleaford and North Hykeham pointed out, there is no requirement to go to arbitration but the technical committee will pay for the applicant’s costs and that will be covered by the arrangements in the Bill. As I understand it—I may need to address this is in regulations—the technical committee has it within its powers and within its funding to pay for such costs. I would agree with my hon. and learned Friend that arbitration can be quicker, and it is often cheaper and it is private.

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

I seek some further clarification from the Minister. My understanding is that under clause 10 the scheme administrator can help a person to bring relevant proceedings. Relevant proceedings, as we have discussed in relation to one of my previous amendments, do not include proceedings before the technical committee or an appeal from the technical committee. The scheme administrator cannot help or pay for proceedings arising from a decision of the technical committee. But what I understood the Minister to say is that the technical committee itself will fund a decision to which it has come with which an applicant is dissatisfied in a statutory arbitration. That seems an odd position because any successful litigant would have to pay for his opponent’s appeal. There we are. I would be grateful for clarification that that is the position and also where I find it in the Bill.

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

In conclusion, I understand these arrangements are allowed for in clause 15(6). There will be no requirement for me to put it in regulations.

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

Can the Minister also clarify whether, if the technical committee can indeed pay the arbitration costs of a disgruntled applicant, such costs are encompassed within the total costs of the scheme and therefore within the 3% levy figures that we have been discussing?

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

They most certainly are within the 3% and within the scheme.

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

Clause 6 or clause 15 deal with the arrangements that are made by the Secretary of State in relation to the technical committee under clause 15(1). There are three things in particular that are dealt with. The composition of the technical committee, the technical committee’s procedure and how that is to be determined and review by the technical committee of its own decisions. There is absolutely nothing about the technical committee paying for the cost of the arbitration. I am prepared to go with the Minister this far. He has now given an indication of what the regulations will contain. The technical committee is going to have to pay for that. Is the technical committee going to pay purely the cost of the arbitrator, or is it also going to pay the cost of the applicant being represented before the arbitrator or arbitrators, so that the applicant is not deprived of further amounts that they are entitled to in compensation?

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

I will stand and speak slowly for a few seconds while a note appears from behind me. As I understand it, the arrangements may—so it is not exclusive—be paid for by the arbitrators. I will write to the hon. and learned Gentleman.

I also want to indicate to the hon. Member for Stretford and Urmston that I may have misled her a moment ago when I said it was all within the 3% when it may not be. I will write to her.

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

May I ask the Minister to be clear about my understanding? The applicant will have no choice but to go to arbitration. He may have the cost of going to arbitration funded by the technical committee, and that may or may not fall within the amount of money raised by the 3% levy.

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

I understand that they do not have to go to arbitration. They can go through the civil process. There is no requirement for them to go through arbitration, as I understand it.

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

I think the sensible thing would be for the Minister to write to the Committee on this point, as he has offered to do, before the Bill is reported to the House. The letter should deal with my points and those raised by the hon. Member for Stretford and Urmston. It is important to get this clear, even if it is not included in the Bill. Nobody wants an applicant to be disadvantaged. It is that with which the amendments seek to grapple. Given that the Minister has offered to write, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.