Damages (Asbestos-related Conditions) (Scotland) Bill

– in the Scottish Parliament at 3:15 pm on 11 March 2009.

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Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 3:15, 11 March 2009

The next item of business is a debate on motion S3M-3542, in the name of Fergus Ewing, on the Damages (Asbestos-related Conditions) (Scotland) Bill.

Photo of Fergus Ewing Fergus Ewing Scottish National Party 3:30, 11 March 2009

The Damages (Asbestos-related Conditions) (Scotland) Bill is short and its aim is simple—[ Interruption. ]

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Order. Will members leave the chamber quietly if they are not participating in the debate, and will ministers continue their discussions outside the chamber? Thank you, Mr Neil.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

The Damages (Asbestos-related Conditions) (Scotland) Bill is short and its aim is simple: to defend a right that has been understood to exist for some 20 years. However, the associated issues are profound and complex. That fact was underscored by the work of the Justice Committee, and I pay tribute to all its members for their careful scrutiny. The committee reached the important conclusions that the bill's financial implications should be reassessed and that, as a matter of principle, the law of Scotland should allow redress for individuals whose bodies are scarred, albeit internally, after negligent exposure to asbestos. The Scottish Government agrees.

As regards principles, we know that pleural plaques are a scarring of the membranes that surround the lungs. We are clear, too, that pleural plaques in themselves are generally not, and do not become, debilitating and that they do not give rise to physical pain. However, the Scottish Government's view is that pleural plaques cannot be dismissed as negligible; rather, they must be regarded as a material injury and actionable harm. That view is informed by the understanding that people with pleural plaques who have been heavily exposed to asbestos at work have a risk of developing a vicious and incurable cancer—mesothelioma—that is 1,000 times greater than the risk for the general population. I will repeat that: people with pleural plaques are 1,000 times more likely to develop mesothelioma, which leads to a quick and often painful death.

A diagnosis of pleural plaques does not mean that a person will necessarily develop mesothelioma, but it does mean that the person knows that his body has been invaded and changed by asbestos. Knowing that, and knowing that asbestos is lodged in his system, he and his family might suffer permanent anxiety, particularly if they live in a community with first-hand experience of the pain and suffering that is inflicted by asbestos.

We must also remember that, as Lord Hope noted, a person with pleural plaques has already sustained an injury. It is both internal and painless, but it exists and is imprinted on the consciousness of those who are diagnosed. It might be rendered more vivid by the fact that it cannot be checked in the mirror every morning. Why is the injury there? In the cases to which the bill applies, it is there because, when the dangers of asbestos were well known and should have been guarded against, there was negligence. Some employers failed in their duty of care and put people in harm's way without proper protection. In effect, they played Russian roulette with their employees' health.

The bill's opponents say that people who are affected should not be able to take legal action until they develop a condition with debilitating physical symptoms, but the Scottish Government believes that conditions such as pleural plaques are serious enough to constitute actionable harm. The bill is both an effective and proportionate way in which to ensure that that is the case and to deliver justice.

We were assisted by a number of individuals and organisations to reassess the bill's financial implications as thoroughly as possible. It was particularly helpful to have input from the actuarial profession, and I thank Bill Aitken for suggesting that. We reflected on all the information that was available to us, and two weeks ago I wrote to the convener of the Justice Committee to provide the outcome. I am grateful that the material was immediately published for all to see.

In the time available, I cannot go through every detail of what is a lengthy document, but I will pick out some key points. Taking on board new information, we conclude that, around the middle of the next decade, annual costs are likely to have risen to a peak of between £7 million and £19 million. While significant, that is hugely below the insurance industry's claim that annual costs will average between £76 million and £607 million over the next 20 years.

Our original estimates were towards the bottom end of what we now believe to be the most likely range, which reflects two key changes. First, taking account of data that insurers recently made available, we make allowance for the possibility that the volume of past claims, which was our starting point, may be higher than previously believed. Secondly, taking account of doubts about the validity of estimating future trends in pleural plaques claims on the basis of projected trends in mesothelioma deaths, we identified an alternative approach based on published Health and Safety Executive data in recent reports on benign pleural disease, which suggested a potentially higher rate of increase in future. We are confident that our estimated range is more credible than that provided by the insurers, whose estimates may have been inflated by several factors, including insufficient attention to the differences between the legal systems north and south of the border.

I will say one more thing about the costs. I find it unacceptable that legal costs may account for nearly two thirds of the overall average total cost of £25,000 to settle a claim. That is a legacy of the way in which systems for contesting relatively low-value claims have developed. For the future, I hope that defenders' and pursuers' agents will consider whether a less adversarial approach might benefit. I hope that the reforms that flow from Lord Gill's review will improve matters. No decision has yet been communicated by the United Kingdom Government on the statement of funding policy, so I cannot provide any new information, but we are firm in our view that it would be inappropriate to invoke the statement of funding policy in relation to the bill.

We have listened to all arguments and relevant people and bodies on matters of principle, drafting and finance. Whether they are friend or foe, we have reflected on what they have had to say. We have no quarrel with the insurance industry: we recognise its importance, we want it to thrive, and we appreciate that its opposition to the bill has been conducted, for the most part, constructively. However, I hope that the opposition ends when the bill is passed and that the insurers respect the will of the legislature of the Scottish people and compensate those who have been injured because of their clients' negligence.

The bill restores access to justice for those who, through no fault of their own, were negligently exposed to asbestos and the risks that it brings and who have developed a scarring of the membrane around their lungs. The bill deserves the support of every member of Parliament.

I move,

That the Parliament agrees that the Damages (Asbestos-related Conditions) (Scotland) Bill be passed.

Photo of Richard Baker Richard Baker Labour 3:38, 11 March 2009

The Parliament has acted in unity before to protect and advance the rights of workers who have been recklessly exposed by their employers to asbestos, whose health has suffered dramatically as a result, and whose families have also borne scars of trauma and loss. Labour members are proud of the previous Scottish Executive's Rights of Relatives to Damages (Mesothelioma)

(Scotland) Act 2007 and of the work of Des McNulty, who initially pursued the issue as a member's bill, Bill Butler and Duncan McNeil. Of course, members on all sides have frequently made the case for sufferers of mesothelioma and their families. Stuart McMillan initially introduced a members' business debate to raise the Parliament's concerns about the impact of the House of Lords ruling.

Members have been moved to act by the experiences of the people whom they represent, and we are moved to act as a Parliament today. It is right that we look to pass the Damages (Asbestos-related Conditions) (Scotland) Bill, which we are pleased the Scottish Government has introduced and which we hope will unite the Parliament once more to protect the rights of those whose health is affected and who are at risk of serious illness because of employers' faults. We have previously had very good, non-partisan debates on those issues, which are of such great importance, and I am sure that that will be the spirit of this debate.

We welcome the introduction of the bill, and I very much welcome the minister's opening speech and, indeed, the sensible amendments that we passed earlier, which strengthen the bill's effectiveness—Bill Butler pursued that issue at stage 2. It would be good to receive further information from the minister later about his discussions with Mr Brownlee on what action will be taken on the costs. That issue has been debated by members, but there might still be matters that require further discussion.

Once again, the Justice Committee has diligently and effectively scrutinised legislation to ensure that the bill that we pass has been improved by the committee process. Today, we must pay tribute in particular to the tireless campaigning work of Clydeside Action on Asbestos, which has represented the victims of asbestos exposure so passionately and persuasively and has received wide recognition for its work. We must also acknowledge the work of the trade unions—my union Unite in particular, I am pleased to say—which have provided excellent representation for their members. We also acknowledge Thompsons Solicitors for all its work, which has helped to ensure that the bill is as effective as possible in reversing the House of Lords judgment.

As the Parliament has heard many times throughout the years, mesothelioma leads to a speedy and painful death. The insurance industry has argued that pleural plaques are not harmful in themselves and do not necessarily lead to mesothelioma, but the opposite case has been put irrefutably by members of all parties during the debates on the bill. Pleural plaques cause not just anxiety but ill health. As I mentioned in the stage 1 debate, a Unite member from Stonehaven said:

"Pleural Plaques is a time-bomb. The Doctors could call me tomorrow to tell me I have mesothelioma and sufferers have to live with that prospect every minute of every day. It's undoubtedly deteriorated my quality of life ... I'm more worried, anxious, lethargic .... my health is poorer."

I do not believe that employers or the insurance industry should be able to walk away from that.

The approach of Labour members is clear: the crucial issue is that the bill be passed. We hope that it will be passed unanimously, given that it has received the support of all parties so far. Our job is to make the right provision in Scotland to enable people with pleural plaques to regain the right to claim compensation.

Photo of Gil Paterson Gil Paterson Scottish National Party

Do the member and the greater number of colleagues agree that the impact of passing the bill will be felt furth of Scotland? I firmly believe that passing the bill will benefit sufferers not just in Glasgow but in Gateshead, for instance, because the legislation will put some pressure on the UK Government to deliver a similar bill in Westminster.

Photo of Richard Baker Richard Baker Labour

First, let me pay tribute to Gil Paterson for his efforts on the issue. Having attended a number of members' business debates on the sufferers of asbestosis and pleural plaques, I know that he has been involved in the issue over the years and has taken it seriously.

I have been in dialogue with my Westminster colleagues and I know that they, too, want to make progress on the issue. UK ministers have undertaken a full consultation about what measures should be taken in light of the House of Lords ruling, and it is right that they give the issue full consideration. UK ministers have engaged in the kind of consideration and consultation that our Justice Committee has said is important in dealing with such matters, so I do not think that they should be criticised for that.

It is right that Westminster looks to make progress; the bill that we are considering is right for us, but it is right that we look to progress across the country. On that basis, I hope and am confident that Scottish Government ministers will continue to have constructive dialogue with their counterparts in Westminster, which is the right way to take the issue forward.

The key issue for members is to ensure that we make the right provision in Scotland. We must do the right thing by the victims of pleural plaques and by those who have so effectively taken their case to this Parliament in arguing that their rights to justice and compensation were, unfortunately, removed by the House of Lords judgment. That is a wrong that needs to be righted.

I maintain that passing the bill will not in any event result in unbearable costs for the Parliament or others, and the minister rightly said that this is an issue of justice. I hope that today is a day on which the parties come together in a spirit of unity—as has so often been the case in Parliament in the past—to take action to defend the rights of those who have been recklessly exposed to asbestos in the workplace. That is why the bill has Labour's whole-hearted support.

Photo of Bill Aitken Bill Aitken Conservative 3:45, 11 March 2009

As has already been canvassed this afternoon, the Parliament cannot, in any legislative activity now and in future, fail to take into consideration the financial consequences. That is particularly apposite at the present time.

When the Government started on its legislative path, members—particularly those on the Justice Committee—will have been aware of my concerns about the adequacy of the financial memorandum. It appeared from the start to be inadequate, and it gives me absolutely no pleasure to note that even in the best-case scenario I appear to have been proved right.

Although some of the evidence that came before the Justice Committee seemed to verge on hyperbole, there was a general and genuine recognition of a potential problem and, accordingly, the minister undertook to clarify the actual figures. I acknowledge that he has made genuine and sincere efforts to do so; unfortunately, that has simply not been possible and we are left with considerable uncertainty.

In his letter to the Justice Committee dated 25 February, Mr Ewing correctly made the point that the further inquiries had made some of the more extreme projections look very unlikely. According to the minister, the projections are dependent on a wide range of unknowns, with potentially significant implications for what eventually transpires.

The estimate of the number of new cases varies from 2,826 to 5,928, and the estimate of the potential costs varies from £60 million to £131 million, exclusive of the costs to the national health service when people seek diagnostic checks. Those variations give rise to concerns that do not appear to have been anticipated by the proponents of the bill, although I freely acknowledge that they may have anticipated those costs and decided that, in social terms, there is a justification for proceeding.

While much of the cost will be met in the private sector by insurance companies, there is also a public sector involvement. Insurance companies have made few friends in Parliament, bearing in mind the way in which they dealt with mesothelioma claims, and they can fix pricing to overcome any increase in liabilities, but they are being asked to fund a retrospective liability, which is never satisfactory.

Bearing in mind the nationalised shipyards and Ministry of Defence work, there is a public sector involvement that has not been fully or accurately reflected in the papers helpfully provided by Mr Ewing. There must be a lot of potential liability lurking around the activities of local authorities, development corporations and their statutory successors, and health boards, and the costs could be considerable. I endorse the minister's view on the way in which the legal component of those potential liabilities has soared.

The matter has been compounded by the fact that, despite correspondence from the minister to Westminster ministers and from me as convener of the Justice Committee to the Secretary of State for Business, Enterprise and Regulatory Reform Lord Mandelson, the Westminster Government has failed to answer a basic and material fact. Under the statement of funding policy, when Scotland increases liability, the Scottish Government must pay for it. As a considerable amount of the potential liabilities relates to work carried out in the public sector, a potential cost has clearly not been quantified that could impinge on our ability to provide public services in health, education and other areas.

It is extremely regrettable that the Westminster Government has not indicated its intentions with regard to the funding implications under the Scotland Act 1998. It is clear that the level of co-operation on the production of statistics that the Scottish Government could have expected has not been forthcoming, and members may think it significant that the Westminster Government has not indicated any legislative line. Despite what Mr Baker said in all sincerity, it is clear that the Westminster Government has problems with the issue.

In a letter to the Justice Committee, the Law Society of Scotland stated that we were correct to raise concerns about the financial implications and underlined the importance of Parliament being satisfied with the financial aspects of the bill. I say, with regret, that the Parliament cannot be satisfied. We are being asked to sign a cheque that cannot be quantified and, although we could all think of many less deserving recipients—Mr MacAskill referred to a few earlier—we have to consider the wider picture.

I am conscious of the emotive nature of asbestos-related conditions in west central Scotland, and I appreciate and respect the views of members of other parties, but we have to understand the financial realities. I therefore regret to advise the Parliament that the Conservatives are unable to support the legislation.

Photo of Robert Brown Robert Brown Liberal Democrat 3:51, 11 March 2009

On behalf of the Liberal Democrats, I am glad to agree with the proposition that Parliament should agree to pass at stage 3 the Damages (Asbestos-related conditions) (Scotland) Bill.

Like others, I pay tribute to the work of Phyllis Craig and her team at Clydeside Action on Asbestos and to the other campaign groups. I thank Government ministers and their officials for their support and supportive attitude since the House of Lords judgment in the case of Johnston, which started everything off. It might have been helpful in our consideration of costs and the bill's technicalities if a full consultation had been held in the usual way, but the work of the Justice Committee, which scrutinised the bill, has helped to overcome those difficulties. I entirely accept that, on this non-partisan issue, ministers were seeking to make progress in the most effective way.

Bill Aitken is usually reasonable on such matters, but his comments on funding and on the effect on the public purse somewhat gilded the lily. I agree with his concerns about the failure of the UK Government to respond on the statement of funding policy because it does not have to wait for a decision on what will happen in England—the statement of funding policy relates only to the implications of the decision in Scotland.

I share the Government's view that the proper approach for us is to say that we have compensated for pleural plaques for 20 years, that everything was known about and taken into account, that we should continue to operate as before and, therefore, that there will be no implications for the UK Government beyond those that were known about before. It would be helpful if the UK Government could speedily arrive at that position.

The Scottish Parliament information centre briefing for the stage 3 debate contains an illustrative chart that shows the distinction between the cost of existing cases and the annual costs for different public bodies and for private business. The graph shows clearly that the costs for the public sector are small—under £3 million in total to date and under £750,000 for the estimated annual costs thereafter. I am prepared to accept that the figures may be wrong by a fraction, because there will always be a high degree of speculation in any such situation, but by anyone's account we are talking about relatively small figures for the public sector.

The insurance industry has made its concerns about private sector costs known to us, but the figures that the Government has eventually emerged with bear a reasonable relationship to the figures that it began with in the financial memorandum. We are talking about an average cost of £25,000, and I feel that it should be possible for the legal costs to be reduced once a mechanism is in place.

We have knocked on the head the suggestion that 30 per cent of the claims might have come from Scotland—that is manifestly not the case. The figure of 9 per cent, which is used for benefits claims and things of that kind, is much more likely to be correct. We also have solid figures for past claims, which give us both information about the history of the issue over some years and confidence in postulating the figures for what is said will be the peak year of 2014. We have reasonably robust figures that will enable the Parliament to support the bill in broad knowledge of the general direction of travel and accepting that there is an element of speculation about any future figures.

In the light of some previous comments, I must say that I do not accept the wider criticisms that have been made of the House of Lords judgment or of the judges involved. A bench that includes Lord Hope and Lord Rodger could be expected to produce a legally impeccable judgment, which is what it did. Moreover, it upheld the majority judgment of the appeal court—perhaps because, for the first time, the courts had the benefit of detailed expert medical opinion, which was agreed by both sides at that time, on the nature of pleural plaques and their precise relationship to the original exposure to asbestos and to any subsequent development of mesothelioma. The judges themselves were not unsympathetic; indeed, several of them raised the possibility that such cases might be raised more satisfactorily as a breach of contract rather than as a delictual wrong based on negligence.

Nevertheless, the fact that the case was legally correct does not necessarily mean that it satisfied our sense of justice and fair play. Also, technically, the judgment was won on an English appeal, so it fell to the Scottish Parliament to consider what the law should be in Scotland. Legislative action here is, of course, a matter for us.

I have spoken about the characteristics of asbestos cases in the chamber before. They include the incubation period, the fact that the cases frequently affect whole families and communities—brother following brother, son following father, and wives cleaning overalls contaminated with white dust—and the fact that they arose at a time when, although the risks were long-known to employers, they were not fully appreciated by employees.

As the minister mentioned, compensation has been paid for 20 years on the basis that those people's asbestos exposure was, in the words of Dr Rudd, a consultant physician whose evidence was mentioned in committee, more than 1,000 times that of the general population. I remind members of the words of Unite, which said that pleural plaques are the calling card for the development of more serious and terminal asbestos-related illnesses.

I hope that, during the passage of the bill, we sorted out the issue of the coherence of the law, and in exchanges with the minister we dealt with the financial issues. My judgment—and, I hope, that of the Parliament—is that continuing the right to compensation as it was understood before the Johnston judgment is right: there should be compensation for people who, through no fault of their own but through the blameworthy fault of others, understandably feel that they have a death sentence hanging over them like the sword of Damocles.

Against that background, this is a good bill that brings succour and equity to a lot of people who have suffered because of their exposure to asbestos through their employers' negligence. It is right that they should continue to be compensated when they contract pleural plaques, and it is eminently right that we pass the bill today.

Photo of Stuart McMillan Stuart McMillan Scottish National Party 3:58, 11 March 2009

I expect an element of justice to be reinstated for the people of Scotland shortly after 5 pm this evening. I expect the Damages (Asbestos-related Conditions) (Scotland) (Bill) to be passed by the Parliament, which will once again send a message to Scotland and elsewhere that the Scottish Parliament is prepared to act in the interests of the people of this country.

I will take particular pleasure in casting my vote this evening because I have been involved in moving the campaign and the bill forward since before the bill was introduced to Parliament. Shortly after I was elected, Councillor Kenny MacLaren of Renfrewshire Council arranged for me to meet Phyllis Craig of Clydeside Action on Asbestos. The impending House of Lords decision and its ramifications for sufferers of pleural plaques was explained to me and I was asked to assist. With the help of Councillor MacLaren, we started to put the wheels in motion.

I offered to introduce the draft bill as a member's bill, but we agreed to try first to convince the Scottish Government to introduce the bill, as that would guarantee it speedier progress through the Parliament. Thankfully, the meetings between Clydeside Action on Asbestos, Frank Maguire of Thompsons Solicitors and the Scottish Government were successful. Gil Paterson, Bill Kidd and I invited Phyllis Craig and Frank Maguire to the Scottish National Party conference in 2007 to lobby all and sundry. I do not think that many SNP MSPs left the conference without meeting them and realising what pleural plaques were and what the implications of the House of Lords decision would be. When I was informed that the Scottish Government was to introduce the bill, I was delighted, but I realised that there was still a lot more to do.

During the early stages of the bill, when I was a member of the Justice Committee, it was obvious that there was unanimous cross-party support for the bill. It was also obvious that there was a sense of injustice, and that the committee could do something about it. I am proud of the scrutiny that we gave the bill and of the report that we published.

At this point, I pay tribute to the members of the Justice Committee for their work in scrutinising the bill. I was, of course, disappointed to hear Bill Aitken's comments. I respect the fact that he queried the financial aspects of the bill throughout the committee process, but I take this opportunity to urge the Conservatives to change their decision. I advise them not to paint themselves as they were in the 1980s, which is what they will do if they vote against the bill this evening.

I was born in Barrow-in-Furness in England, but I grew up in Port Glasgow, as my parents decided to return to the town. My father was a coppersmith and worked in the shipyards, as did many other family members. Health and safety conditions in the yards were not as stringent as they are now, and some of the raw materials that were used then would not be used now—the main one, obviously, being asbestos.

If I were given a pound for every story that I have heard about the white mice—not only in the past but since I have been involved in campaigning with Clydeside Action on Asbestos—I would be a wealthy man. The stories shocked me, but I was shocked even more by those about women contracting asbestos-related conditions as a result of shaking their husbands' overalls before washing them. That brought home to me just how potent and dangerous asbestos is, and how indiscriminate it can be. It can affect the whole population.

I am pleased that the Scottish Government and the Scottish Parliament have listened to the arguments. I am sure that the vast majority of the people of Scotland will support the decision that we make on the bill. I know that they will support us in doing the right thing tonight, just as they supported us when we did the right thing two weeks ago and voted for Jackie Baillie's Disabled Persons' Parking Places (Scotland) Bill.

During Bill Kidd's recent members' business debate on action mesothelioma day, I urged the insurance industry to work in tandem with organisations such as Clydeside Action on Asbestos and the Clydebank Asbestos Group, instead of fighting claims at every single turn. Today, I again ask the insurance industry to be proactive in moving this issue forward and not to challenge the will of the Parliament in the courts, as the media has reported might happen. If we pass the bill, there is no reason whatsoever for the insurance industry to mount a legal challenge to the will of the Parliament.

Before I close, I welcome to the public gallery representatives of Clydeside Action on Asbestos, particularly Phyllis Craig, who is a rock for the charity; Frank Maguire of Thompsons Solicitors; representatives of Clydebank Asbestos Group; and Councillor Kenny MacLaren. Their hard work will be rewarded. More important, I want to welcome all those in the public gallery who suffer from pleural plaques and other asbestos-related conditions. Today is about allowing them the opportunity to obtain an apology for their condition—a condition that was contracted because they went to work and someone else neglected health and safety regulations. Today is about them being able to move on with their lives. Most important, today is about them obtaining justice—justice that they deserve. Part of Scotland's industrial legacy will be put right today.

I urge the Parliament to vote with one voice and unanimously back this bill.

Photo of Bill Butler Bill Butler Labour 4:04, 11 March 2009

I support the motion in the name of the minister. As a Justice Committee member, I put on record my gratitude to the clerking team and to SPICe for their sterling work and invaluable assistance as the bill progressed through its various stages.

I express my admiration for the commitment and dedication of those who have campaigned tirelessly to have this vital reform enacted: Clydeside Action on Asbestos; the Clydebank Asbestos Group; the GMB; Unite—both the Amicus and T&G sections; the Union of Construction, Allied Trades and Technicians; Thompsons Solicitors; and, above all, those with asbestos-related conditions and their families.

As members will know, the need for the bill arose from the House of Lords judgment on 17 October 2007, which ruled that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages.

The judgment reversed more than 20 years of precedent and practice. In effect, the ruling meant that those who suffered anxiety as a result of the presence of pleural plaques could no longer pursue damages against the industries that had, in a clear breach of their common-law duty of care and of various statutory duties under health and safety at work legislation, left them exposed to asbestos dust. That was the direct consequence of the part of the Law Lords' ruling that said that the mere presence of pleural plaques in the claimants' lungs was not a material injury capable of giving rise to a claim for damages in tort or, in Scotland, delict.

Unsurprisingly, there was a public outcry about the judgment, which was variously described as disturbing, scandalous and bizarre. It was certainly seen, correctly in my opinion, as manifestly unjust. I congratulate unreservedly the current Scottish Government on introducing the bill in response to the widespread public demand to correct a gross error.

Members will recall that the Justice Committee's stage 1 report made it plain that their lordships were fundamentally mistaken in their view, and we should not pretend otherwise. We should be plain about it: they were wrong and we are here today to right that wrong.

As the Justice Committee said in its report, the bill

"represents a proportionate response to the House of Lords judgment."

Members agreed that

"pleural plaques, as an internal physiological change, could be considered an injury under Scots common law", and noted

"that the effect of the resultant anxiety on a pleural plaques sufferer could be deemed injurious to their wellbeing."

The bill will restore the right of our fellow citizens to compensation in respect of pleural plaques and, importantly, reserve their right to make a further claim for compensation if, tragically, they go on to develop other, fatal, asbestos-related conditions.

It is a good bill and it is a necessary reform. Their lordships, as from time to time they do, made a profoundly wrong decision—a ruling that, in effect, found in favour of employers who had negligently or recklessly caused their workforce to be exposed to asbestos in the pursuit of profit, and was against the innocent victims of those same employers' recklessness and neglect. That is manifestly wrong.

Who are those victims? They are our fellow citizens who spent their working lives in shipbuilding, in the construction industry and in the fishing industry. They are our friends and neighbours and we, as parliamentarians, must never forget their suffering or that of their families.

Our task at Holyrood is to pass legislation that attempts to redress injustice—this is such a law. As has been said, this Parliament has a good record in passing such legislation. Today, we can all prevent further injustice from being visited upon the innocent victims and their families—people who have already had to endure so much. When the bill is passed—I am sure that it will be—it will rescue from a judicial no-man's-land the hundreds of people whose cases are in court or are still to be heard.

I was hopeful that today we would act as a united legislature in remedying an injustice. I was shocked—and I am not using hyperbole—to hear Bill Aitken say that the Tories would not be able to support the bill. I make a plea to Bill Aitken and his party to reconsider their decision, because not supporting the bill would be shameful. If the Tories wish to rehabilitate themselves for past offences, they should support the bill at 5 o'clock; otherwise, they will be left in a position that the public will not understand and for which they will be rightly criticised. I tell Bill Aitken and his party that the people of Scotland demand that right be done; they are correct to do so and I hope that the Tories will reconsider.

It is for such causes that I—and, I suspect, all of us—came into politics. This kind of legislation demonstrates that the Scottish Parliament has a purpose and can deliver for working men and women, and I and the Labour Party support the Damages (Asbestos-related Conditions) (Scotland) Bill.

Photo of Bill Kidd Bill Kidd Scottish National Party 4:11, 11 March 2009

It seems like such a long time since we set out on the road of reversing the ill-considered judgment of the House of Lords on the right of asbestos victims with pleural plaques to challenge the big insurance companies for compensation. I say that it seems like a long time, but in political terms we have reached the bill's third and final stage—with due awareness of its importance to those affected by this condition—with as much alacrity as the parliamentary process allows. The fact that that has come about as a result of the co-operation of members of parties right across the chamber is a sign of a mature and decent Parliament that represents the people, not vested interests. Of course, the Justice Committee is also to be thanked for its efforts.

The Scottish Government and, in particular, Fergus Ewing, the minister responsible for overseeing the bill's progress, are due very considerable praise for expediting through Parliament this important legislation in the face of pressure exerted by members of the Association of British Insurers. Moreover, Clydeside Action on Asbestos and Thompsons Solicitors have been tireless partners on the side of the angels in the process.

According to the ABI, in 2006, its member companies paid out more than £1.2 billion in employer liability claims—and quite right too, given that the employers were liable. After all, they had been deficient in protecting their workers against injury.

We have to remember that in such situations the insurers pick up the tab. However, they do so not out of their own pockets, but from the payments made to them by employers whose workers are insured against harm as they ensure that their bosses and company shareholders—and, by extension, the insurers themselves—earn the wealth that allows them to live in conditions in which their bodies, at least, do not have to be exposed to chrysolite or other noxious asbestos products.

Insurers play an important role in modern society and make a very good profit from running what is a regulated business. They have to be kept in line and in place, which is where Parliaments come into their own. Insurers should not expect—and certainly should not be allowed—to make excess profits by reneging on their side of the deal to compensate workers made ill in carrying out their daily duties and on whose backs this country's wealth was built.

I said earlier that the House of Lords judgment was ill considered. Some might say that that is a matter of opinion; however, it is the opinion of the great majority of the members of the Scottish Parliament that their lordships were wrong. In a civilised and democratic society, there must be an unbreakable compact between the people and their Parliament that the politicians are there to defend the people from harm and to enhance society as a whole for the benefit of all.

I reiterate what I said in our debate on pleural plaques on 5 November last year:

"The Association of British Insurers says that there is a duty on its part, and on the part of its members, to pay out when there has been employer negligence. There has been employer negligence when exposure to asbestos has caused scarring to workers' lungs."—[Official Report, 5 November 2008; c 12043-4.]

Therefore, according to their membership organisation, the insurers of employers whose workers have suffered scarring of the lung tissue—pleural plaques—as a result of negligent exposure to asbestos have a duty to make compensation payments. If they will not stay true to that duty, it is down to members of the Scottish Parliament to ensure that they do so.

The Parliament is delivering on its compact with the people, and I hope that all members will do so when it comes to decision time. We must reverse the misjudgement of the House of Lords. Perhaps Westminster will be shamed into doing the same. I certainly hope so.

Photo of Des McNulty Des McNulty Labour 4:16, 11 March 2009

This morning, I spoke at a Clydebank Seniors Forum meeting. There were between 80 and 100 people—mainly women—in the room, many of whom had friends or relatives who had contracted asbestos-related conditions, such as pleural plaques, asbestosis and mesothelioma. Clydebank is the hottest spot in Scotland for asbestos-related diseases. Those diseases are not found solely in Clydebank—the west of Glasgow, parts of Tayside and West Lothian have high levels of asbestos-related diseases—but because of its unique industrial history, its shipbuilding yards, engineering factories, the concentration of the construction industry there and particularly the asbestos plant that was there for many years, Clydebank is the epicentre of the epidemic of asbestos-related diseases.

Asbestos-related diseases have decimated cohorts of the population. People are no longer alive because asbestos got into their lungs and destroyed the life that they should otherwise have had. It has also affected the lives of members of their families. Over the past several years, the Parliament has had a proud record of dealing with those people and providing justice for them. We argued hard on a cross-party basis that people should not die before they got their mesothelioma cases into court. That was happening. We speeded up the process by which such cases are dealt with. That was done on a cross-party basis for the right reason: to provide justice for people.

When cases were coming to court and victims were getting justice before they died, we found that what was happening affected the compensation rights of their relatives, who had previously been entitled to compensation but whose claims were then disbarred because justice was being delivered. The Parliament changed the law in Scotland to ensure that relatives' rights were protected. That was the right thing to do.

What we are doing today is also right. The right of individuals to claim compensation for pleural plaques had been in existence for 20 or more years. People had been entitled to claim compensation. That compensation was withdrawn because the insurance industry took forward cases to try to evade its responsibilities. It was not the first time that the insurance industry had tried to do that; it has repeatedly tried to evade its responsibilities. It tried to argue that it could pay compensation only if it could be established absolutely that a particular company was responsible for the contamination of the individuals.

At Westminster and Holyrood, we have sent the insurance companies homewards every time that they have come to evade their responsibilities. I am delighted that we are going to do that again. We are here to stand up for the rights of not insurance companies, but our fellow citizens, as Bill Butler pointed out. We should do that on behalf of Scotland and the communities that we represent.

The issue is not party political and I have never treated it as such in all the years in which I have campaigned on it. People from all political parties have stood up for what is right. I remember when I first started campaigning on asbestos in the Parliament, the late Margaret Ewing was among the first members to support me. She did so because she had been a member for East Dunbartonshire and so understood fully the situation of her constituents at that time and of people throughout Scotland. I am delighted that Fergus Ewing is continuing that work in progressing the bill. Members from all parties have put their shoulders to the wheel. As Bill Butler pointed out, campaigners have done so too, including the Clydebank Asbestos Group in my constituency, Clydeside Action on Asbestos and people from Tayside and West Lothian. The Scottish Trades Union Congress has played an important role, as have Unite, the Union of Construction, Allied Trades and Technicians, the GMB and other trade unions. All those organisations have campaigned for, and done, what is right.

In the end, the Parliament will not be judged by the boxing games in which we occasionally engage or the party-political squabbling, which comes one day and goes the next and is forgotten about; what will be remembered is whether we did the right thing. On asbestos, the Parliament has consistently done the right thing and I am absolutely delighted that it will do the right thing again today.

Photo of Nigel Don Nigel Don Scottish National Party 4:22, 11 March 2009

I echo everything that has been said. This late in the debate, there is not much to say, and I do not want to repeat everything for the sake of it.

I take members back to the House of Lords judgment in the Johnston case. The judgment gets a bad press, but we should recognise that the law was not satisfactory and that their lordships knew that the whole basis on which people had been proceeding had been wrong for a long time. As I did in the stage 1 debate on 5 November last year, I will refer to the judgment, in which Lord Rodger stated at paragraph 84:

"The asbestos fibres cannot be removed from the claimants' lungs. In theory, the law might have held that the claimants had suffered personal injury when there were sufficient irremovable fibres in their lungs to cause the heightened risk of asbestosis or mesothelioma."

The implication is that that is what the law should have held, which would have been good English law. However, as Lord Rodger went on to say,

"the courts have not taken that line."

I wonder whether their lordships might take from this debate a cautionary tale about the way in which they have developed the law. That will be history in a few minutes' time, because I am sure that we will pass the bill. It is easy to blame their lordships, but they could have got it right earlier if they had thought about how the law should develop. However, one way or another, they did not do so.

I want to address the uncertainty about costs, by pointing out that costs are always uncertain. The numbers that we have heard about today are a salutary reminder of the uncertainty of costs in the real world. I do not think that that is particularly unusual. We sometimes flatter ourselves by thinking that our estimates are more accurate than they are. Bill Aitken is no longer in the chamber—although I am sure that he will be back to vote on the bill—but I remind the Tories that the estimates that we have are estimates of a cost that would have been borne had the law not been changed by the House of Lords in the Johnston judgment. I accept that we do not know what the numbers are, but we did not know what the numbers were before the judgment and they are still the same numbers that they would have been. By putting the law back to where it would have been, we are not changing the numbers—and we still do not know what they are.

Comment has already been made about the legal costs and about the fact that, once the bill is passed, the insurance company will have nowhere to hide. The next step for the insurance company—whose rights I am perfectly prepared to defend, although it does not have any rights because of things being put back to the way that they were—should be to find ways forward that reduce the legal costs in what should be, by and large, incontestable cases. I appreciate that some cases are contestable on the facts, but where they are incontestable, there is absolutely no sense in the company continuing to pay large sums of money to lawyers—although I love lawyers dearly when they have a good case to argue. In that way, the costs to the insurance company can be reduced and the process will be speeded up, which will be good for the victims who need to be compensated. I hope that the ABI will take that on board.

I come to a more substantive point about the European convention on human rights. This might seem a slightly tangential point, but members will find out where I am going. We generally accept that, although the ECHR has some interesting and, occasionally, unfortunate side effects, it basically gives us a good way forward when we are considering people's rights and how we set up, interpret and use the law.

This very afternoon, the Cabinet Secretary for Justice commented on the costs to the Government of paying for slopping-out cases, on the basis that slopping out is—apparently—in breach of the ECHR. That money flows from the public purse and goes directly to convicted criminals. As far as I can see, the Conservative party supports that—although I am sure that it acknowledges that it is an unfortunate result of the ECHR.

I note that Government policy, which is endorsed across the Parliament, is to try to support drug addicts out of their addiction. As I understand it, the Tories support the expenditure of public funds to help those who have chosen to become addicted—or who have chosen to risk becoming addicted, at least. They are prepared to support the expenditure of public funds to help those who, in principle, could themselves choose to stop. Is it not strange to hear the Tories say that they do not support the recovery by those who have been the victims of negligent employers of compensation, either from the employers directly or from those who stand behind them, be they Government or insurer? I have to join the growing list of members who feel that the Tories have quite simply got it wrong. The argument is wrong, and I suggest to Bill Aitken and his colleagues in all seriousness that they should change their position in a little over half an hour's time, because it is faulty and it will not be defensible in the long term.

Photo of Duncan McNeil Duncan McNeil Labour 4:28, 11 March 2009

I welcome the bill. More important, it will be welcomed by my constituents in Greenock and Inverclyde who have been diagnosed with pleural plaques and who have had their rights to compensation temporarily denied. Those rights will correctly be restored today. The disease, with all its aspects, will be properly acknowledged. Once again, the Parliament, with cross-party support, has come down on the side of the victims of asbestos-related disease.

More than most, the campaigners I met today, who are in the public gallery, will well understand that this country has an adversarial system of justice, in which the ill and the dying have been victimised time and time again. We have heard from Des McNulty how that has happened. There have been delays and blanket denials at a terminal point in many people's lives. Their very existence—and where they worked, who they worked for and what ship they worked on—was denied. They were nothing in the system. Today, we hear that some of that injustice is being addressed.

As Nigel Don said, in a stage 3 debate, we often repeat what others have said, and, as members have said, I am pleased that the Scottish Parliament has a proud record in this area. Back in 2000, I hosted one of the Parliament's first members' business debates on mesothelioma, with the support of 45 back benchers. We have hung together on the issue for a long time.

I have been aware of the blight of asbestos throughout my time as an MSP and in my life before entering the Scottish Parliament. As many do only too well, I understand the difficulties and the humiliations that victims have sometimes had to endure at the hands of the courts in trying to obtain the justice that they were well due.

Over the years, several members have distinguished themselves on the issue. I am happy to recognise the contribution of politicians from all parties. As has been said, the late Margaret Ewing campaigned on the issue here and in Westminster. I also recognise the contributions of Robert Brown, Stewart Stevenson, Pauline McNeill, as the Justice 1 Committee's convener, Hugh Henry, in his ministerial role and—of course—Des McNulty, whose record I contend is second to none.

I regret that, unless the Conservatives change their minds, we have lost Bill Aitken along the way. He is another member whom I would like to have commended today. I consider the costs and the price that is paid to be much more than a line on a balance sheet; they include the cost to health, the impact on communities and on families, the ultimate price that too many have paid and the indignity that people have suffered. Like others, I ask the Conservatives to ask themselves again about costs and price and to move beyond the balance sheet.

The Justice Committee's work should—rightly—be praised. We might have lost Bill Aitken along the way, but I am pleased that the parliamentary campaign has new recruits, such as Bill Kidd and Stuart McMillan, who have continued the Parliament's tradition. Bill Butler's work is also to be recognised.

The progress that has been achieved could not have been accomplished without the efforts of victims—I was reminded of that today when I met campaigners. Despite terminal illness, victims have fought the good fight literally until their last breath. In the debate in 2000, I paid tribute to Owen Lilly—a Clydebank man who showed true Clydeside spirit. He participated in a film that shocked many by showing the horrors of mesothelioma and brought home the plight of victims to a wider audience. Joe Baird, my old friend and the chairman of the shop stewards in Scott Lithgow, fell victim to asbestos. Despite his problems, he retained his dignity, his humanity and his campaigning spirit throughout that difficult time. Despite their illness, people such as Jim McAleese have provided support for the Inverclyde support group for many years.

Of course, for those who have lost relatives to this awful disease, the fight continues. The families refuse to give up the fight for what is rightly theirs—the right and just campaign. They have been ably supported by campaign groups such as Clydeside Action on Asbestos and Clydebank Asbestos Group, by friends in the trade union movement—in the GMB and Unite—and by lawyers such as Frank Maguire of Thompsons Solicitors, who have all played a major part in bringing about the bill.

All parties can—rightly—be proud of the Parliament's record on the issue. We have consistently highlighted the insurance industry's dirty tactics and its attempts to spin out cases to avoid or reduce its liability. The bill marks another milestone for the Parliament, which, as Bill Kidd said, is connected to its communities and knows where they stand. However, it is the external influences—the unions, lawyers, pressure groups and victims—that have given the Parliament another opportunity to do what is right. I urge all parliamentarians to pass the bill, to ensure victory today, which will belong to all the campaigners for this just cause.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:35, 11 March 2009

I am sure that this is the final chapter—at least, I hope that it is—in legislation on the asbestos-related condition mesothelioma. I congratulate Clydeside Action on Asbestos and the other campaigning groups. I hope that their members can now look to the future and spend their time on more pleasant issues than those that they have had to address over the past few years.

I was on the Justice 1 Committee in the previous session of the Parliament when the Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007 was passed. Although it was a relatively short bill, it not only addressed a serious social issue but was quite complicated. As the minister said, the aim of the Damages (Asbestos-related Conditions) (Scotland) Bill is to tackle a serious social issue, and it will do that when—as I am sure it will be—it is passed later today. Although I am not a member of the Justice Committee, I am pleased to speak in this stage 3 debate. I apologise in advance to Justice Committee members if my knowledge is not quite as keen as theirs.

In a number of court cases from the early 1980s until 2005-06, damages were awarded to claimants who had developed the asbestos-related condition pleural plaques. As Bill Butler, Bill Kidd—both of whom I am sorry to say are no longer in the chamber—and other members said, the decision of the House of Lords in the Johnston v NEI International Combustion Ltd case prevented claimants from going to court and claiming damages for injury caused by exposure to asbestos many years previously.

I am not qualified to say whether the House of Lords decision was right or wrong. On 29 November 2007, the Scottish Government announced that it intended to introduce a bill to overrule in Scotland the House of Lords judgment. The Government said that the provisions of the bill would take effect from the date of the judgment. The Liberal Democrats were, and are, delighted to support the Scottish National Party in legislating to overturn the House of Lords judgment on pleural plaques.

Given that people with pleural plaques were exposed negligently to asbestos over many years and that, for the 20 years prior to the ruling, damages were awarded, it is of course appropriate to continue to make such awards. The case for that was well made by Richard Baker in his speech. I agree entirely with my colleague Robert Brown: the bill will restore claimants to the position that they were in before the decision was delivered in October 2007. It will enable them to negotiate settlements and to raise actions in the courts, if they want to do that.

A considerable amount of the Justice Committee's time was take up with questions on how much all of this will cost and what the number of claimants is. One key principle in the statement of funding policy is that, when a devolved Administration takes a decision that has financial implications for departments or agencies of the UK Government, the body whose decision leads to the additional cost will meet that cost. If UK departments and agencies were to invoke that provision, the result would be a considerable impact on the Scottish consolidated fund.

Based on the figures in the financial memorandum, the annual cost will be around £6 million. I thank the minister for giving the chamber an update on those figures today. I understand Bill Aitken's considerable concerns on how much all of this will cost, but I bow to Nigel Don's greater knowledge of the issue. If Bill Aitken was listening to what Nigel Don said, I hope that he will have changed his mind on the matter.

I agree with Nigel Don that the cost of compensation will not be as much as some have suggested. As my colleague Robert Brown said, the question of finance could have been cleared up if the consultation on the bill had gone on for a little longer and had been carried out in slightly more depth.

The financial memorandum indicated that calculations of how much the bill will cost are based on the assumption that perhaps 200 cases a year will settle, with an average cost of £25,000 each. Several members have referred to the cost of lawyers, but I hope that not every case will cost £25,000. Not everyone agrees with the costs that are given in the financial memorandum; the insurance industry, in particular, thinks that they may be substantially higher. It estimates that the Scottish Government has significantly underestimated the level of unjustified costs that the bill will impose on defendant businesses, local authorities and insurers. Only time will tell who is right. It was only to be expected that the insurance companies would say that costs will be much greater than they may eventually turn out to be. For a long time, those companies have been getting insurance premiums, which should now help to compensate them.

Given that people with pleural plaques have been negligently exposed to asbestos, and given that for the past 20 years they have been awarded damages, the Liberal Democrats' view is that appropriate damages should continue to be awarded. That is why we will support the bill.

Photo of John Lamont John Lamont Conservative 4:41, 11 March 2009

Today's debate has again brought to the Parliament's attention the possibly horrific consequences of an asbestos-related condition. None of us would dispute the distressing and disturbing effects of an asbestos-related illness. However, as I said during the stage 1 debate on the bill, I have a lot of sympathy for the view that has been expressed by some that to make compensation available for pleural plaques when plaques themselves have no negative impact on health runs contrary to the Scots law of delict.

As Bill Aitken indicated, we have serious concerns about the cost implications of passing the bill. Now more than ever, we must behave responsibly when using the public purse. We must focus on what the financial memorandum says and on the bill's possible implications for the Scottish public sector—councils, health boards and other public bodies throughout Scotland. A local hospital or school could be closed to allow a health board or council to pay for possibly unknown claims to be settled.

Despite the best efforts of the Scottish Government, which complied with the Justice Committee's request for further research, there remains considerable doubt about potential liabilities and costs to both the private and the public purse.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Will the member clarify whether the Conservatives have decided that they cannot support the bill because they think that the ultimate liability may be substantially in excess of the existing amount? If liability remains at the current levels—essentially, that is what we are assuming—would the Conservatives be willing to support the bill?

Photo of John Lamont John Lamont Conservative

The key point is that estimates vary—the number of claims that may be made in the future is unquantifiable. There is no reliable way of estimating how many individuals have pleural plaques as a result of exposure to asbestos and will ultimately make a claim. There is uncertainty about how many people have been exposed to asbestos, how many of those who have been exposed will develop pleural plaques, how many of those who develop pleural plaques will be identified as having an asbestos-related condition, and how many of those who are identified will make compensation claims.

There is also uncertainty about the exact value of a claim, with claims inflation being a particular issue for the insurance sector. Furthermore, with pleural plaques having a long latency period of 20 to 30 years, it is difficult to predict when the claims peak will occur. It is worth bearing in mind that there is currently a build-up of about 630 pleural plaques cases as a result of the House of Lords judgment and earlier judgments in the English courts.

The best information that is available to the Scottish Government suggests that settlement costs are made up of about £8,000 for compensation, £8,000 for pursuer's costs and £6,000 for defender's costs. Those figures are based on the known 2003-04 settlement figures, which come from the period prior to the legal challenges that culminated in the House of Lords ruling.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

I fully appreciate the cost issues that the member has highlighted, but does he think that pleural plaques are a good thing?

Photo of John Lamont John Lamont Conservative

I am not arguing that pleural plaques are or are not a good thing; the point is what they lead to. Having pleural plaques is not a medical condition; the illness that they lead to is the condition, and the law provides that compensation is payable in the case of illness.

We are concerned about the unknown and unquantifiable costs that the public sector might face. In the financial memorandum, the Scottish Government said:

"a reasonable working assumption for the purposes of this memorandum is an average cost per case of £25,000."

As Bill Aitken said, more than just the insurance sector could be affected by the bill. The Scottish Government is the named defender in a number of on-going cases in the Scottish courts.

We should not forget about the possible costs on the NHS, as patients seek X-rays on the off-chance that they might have pleural plaques. The Cabinet Secretary for Health and Wellbeing has said that it costs £115 for a computed tomography X-ray to be done to determine whether pleural plaques are present.

The Scottish Government should routinely monitor how much it is costing to implement new laws—the bill will be a good example. If amendment 9, which Derek Brownlee lodged, had been agreed to, and there was a significant cost overrun, ministers would have been forced to explain why the overrun had happened. The Government has accepted the principle of post-legislative scrutiny, so there will be no hiding place for cost increases.

The Conservatives voted for the bill at stage 1 after amending the motion to call on the Government

"to provide the Parliament with a more detailed analysis of the likely cost implications".

We have considered the analysis. Despite our sympathy with victims, we will vote against the bill, because we cannot be sure of its implications for the public purse.

Photo of Paul Martin Paul Martin Labour 4:46, 11 March 2009

We have heard powerful speeches, particularly from members who support the bill.

The Justice Committee, of which I am a member, carefully considered a wide range of issues during the passage of the bill. During the process I learned a great deal about asbestos and its history. For example, I learned that asbestos has been known to be a poisonous substance since 1892. I heard from people who had worked with asbestos about employers' unacceptable practices. The negligence of employers is an important aspect of the debate, as the minister made clear.

During the committee's consideration I listened carefully to the case that the insurance industry made. First, the industry said that it was concerned that premiums could increase; then it said that they would increase; then it was not quite sure. The industry provided the committee with little evidence to back up its views.

I listened with interest to Derek Brownlee's comments on amendment 9. Derek Brownlee says that he is concerned about post-legislative scrutiny, but he has not remained in the chamber for the debate. He wants the Scottish Government to make a commitment to seeing things through, but he has shown little commitment to doing that himself. I am pleased that the Parliament rejected amendment 9, which was ill thought out. I am disappointed that Mr Brownlee's party singled out the Damages (Asbestos-related Conditions) (Scotland) Bill for special treatment.

John Lamont talked about uncertainty. I do not want to lecture members, but all members—especially those who have been in the Parliament since 1999—know that the Parliament faces challenges to do with uncertainty almost daily.

Photo of Bill Aitken Bill Aitken Conservative

Does Mr Martin accept that it was entirely coincidental that Mr Brownlee lodged his amendment to the Damages (Asbestos-related Conditions) (Scotland) Bill? Similar amendments will be lodged in future debates; amendment 9 just happened to be the first of its type—it had nothing to do with the bill.

Photo of Paul Martin Paul Martin Labour

Conservatives have proposed a template for scrutinising legislation in the future. I look forward to hearing more about their proposals.

The Parliament has faced challenges with regard to other bills. I remember a similar debate about the Smoking, Health and Social Care (Scotland) Bill, when businesses raised concerns about the potential impact that the ban would have on them. I also remember such a debate regarding the Licensing (Scotland) Bill in 2005. This is not the first time that the Parliament has faced challenges regarding the impact that legislation will have on businesses. Nigel Don eloquently crystallised many of the issues, which were worth raising.

Having listened to the debates on the matter, I am clear that the bill should be passed with no ifs, buts or maybes. The hard-working men and women who were negligently exposed to asbestos have had enough of the insurance industry's attempts to evade its responsibilities. It is time for the Parliament to put that wrong right. The Parliament should be proud of the stance that it has taken on behalf of the many hard-working men and women throughout Scotland who were negligently—I make that point again—exposed to asbestos.

Like others who spoke in the debate, I pay tribute to the trade unions, such as Unite, that played a role alongside Clydeside Action on Asbestos and the other groups that raised issues on behalf of those who have been affected by asbestos. I note the important role that Frank Maguire played on behalf of Thompsons Solicitors. It was evident to me during the committee's consideration of the bill that the insurance industry was well represented and spared no expense in legal matters. I am delighted that the hard-working men and women were given the same opportunity for legal representation by Thompsons Solicitors. The process highlighted the important role that the unions play in ensuring that our workers are fairly treated and given legal representation in the workplace.

The bill deals with an industrial legacy in Scotland that needs to be put right. It is important that we grasp the opportunity to put that shameful legacy behind us. I call on the Parliament to support the passing of the bill.

Photo of Fergus Ewing Fergus Ewing Scottish National Party 4:52, 11 March 2009

I thank members for their contributions to today's proceedings. Like the entire passage of the bill, the debate has been conducted in a constructive and thoughtful tone, which does the institution of the Parliament some credit.

The purpose of the bill is straightforward. In effect, it is to keep things as they have been for the past 20 years. It is not often that someone in the SNP argues passionately for the status quo, but in effect that is what we are doing this afternoon. The bill's purpose is to ensure that people who have been, as Paul Martin said, negligently exposed to asbestos have the right to compensation and access to justice.

Many members thanked specific individuals. I, too, thank the Justice Committee and acknowledge the huge and constructive role that was played by a number of groups and individuals, notably Clydeside Action on Asbestos and Thompsons Solicitors. As Duncan McNeil said, we should thank a great many individuals in trade unions and the unions themselves. Without their work, we would not have the legislation that has been passed during the Parliament's existence to tackle injustice in relation to asbestos. I also thank my officials for the work that they have done and their painstaking attention to detail, particularly as detail has not been in short supply in the bill.

In areas that are associated with Scotland's industrial history, notably shipbuilding and construction, people with pleural plaques are living alongside friends who worked with them and witnessing the terrible suffering of those who have contracted serious asbestos-related conditions including mesothelioma. That causes them terrible anxiety that they will suffer the same fate. The Scottish Government believes that we have a clear moral obligation to address that. We should not turn our backs on those who contributed to our nation's wealth in the past.

I turn to the main issues that were raised in the debate. First, I will respond to the issue that was raised by the Conservatives. In a democracy, there is nothing wrong with having such a dissenting voice, even if I profoundly disagree with what it said this afternoon. There are costs associated with doing the right thing. Members have seen the revised financial implications, which show that, while the costs may be greater than we anticipated initially, they are unlikely to be anywhere near the range of costs that the insurance industry presented.

I will reply specifically to others' arguments about costs and say why I believe that they are wrong and why, in anticipating that there will be a huge surge in claims, the insurance industry's arguments are flawed. I echo the arguments of Mike Pringle, Robert Brown and many other members in other parties in that regard. First, our bill seeks simply to preserve the status quo. In the 20 years before the House of Lords ruling, when pleural plaques were deemed to be compensatable, there was no unmanageable flood of claims. Where is the flood? There has been no such flood. Why would one assume that there will suddenly be a huge flood of claims? Where is the rational basis for that proposition?

Secondly, before the House of Lords judgment, public awareness of pleural plaques in key communities was already high because people such as Des McNulty, Duncan McNeil, Stuart McMillan and many others had publicised the issue and kept it going. Awareness is high because we have had legislation in the Parliament in a number of respects to tackle previous flaws regarding the lack of access to justice for people who suffer from asbestosis. With all that information constantly being presented by elected parliamentarians—and rightly so—awareness is high. How can the insurance industry argue, therefore, that after the passing of the bill—and as a result of my making this speech and our having this debate—awareness should suddenly be exponentially higher than it was before? What on earth is the rationality in that claim?

Photo of Gil Paterson Gil Paterson Scottish National Party

As the minister is aware, just before the House of Lords rescinded the relevant legislation, there was a massive amount of publicity about the issue but no discernible increase in the number of claims. Will he comment on that?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I agree entirely with the member's point, which is the third argument that I would adduce in support of my argument that the costs are likely to continue as they were in the past and at a sustainable level.

The Conservatives' argument seemed to be that legislation should not proceed unless we can have certainty about what the financial cost will be. If that were the test for legislation, we would not have much legislation, because it is simply not possible to predict with precision what the costs will be. In fact, the actuarial profession said that

"it is not possible to derive a" perfect

"estimate of the expected future cost".

If perfection in future estimated costs were a sine qua non of legislation, there would not be any negligence legislation, any compensation for personal injury or any right of recourse to the courts. It seems to me that, wittingly or otherwise, the Conservatives have set up an impossibly high hurdle—a kind of 30ft fence that the high-jump team now has to jump over in passing any legislation.

With respect, I point out to my Conservative colleagues that, two weeks ago—on the same day that Parliament debated action on mesothelioma day—an insurance company announced that it had made £759 million in pre-tax profits in a single year. I have nothing against profits, but that is pretty high. Equally, an ABI statement declared that the UK insurance industry contributed £9.7 billion in taxes in a single year. In that context, I hope that Bill Aitken agrees that our estimates of the bill's financial implications may not seem too daunting.

This has been an excellent debate. The Parliament has shown what it is capable of doing. I am delighted and proud to have had the task, on behalf of the Scottish Government, to move that we pass the Damages (Asbestos-related Conditions) (Scotland) Bill and to defend and confirm the right of access to justice for those who have been negligently exposed to asbestos and have sustained injury as a result.