08 January 2014

By Jamie Hanley, partner at Pattinson & Brewer and Labour’s parliamentary candidate for his home seat of Pudsey

On January 07, Parliament considered the third reading of the Mesothelioma Bill and so I thought it would be appropriate to update on my last comment, which coincided with the second reading of the Bill.

I support this Bill. It originates from a consultation launched by the previous Labour Government and follows what is a long history of interventions by the Labour Party, and the wider Trade Union movement to secure justice for mesothelioma victims.

However, I remain concerned that the Bill does not go far enough for the victims of this fatal disease, and I believe that the reason for this is the current Government’s relationship with the powerful Insurance lobby.

I hope the Government proves me wrong. They would do so by supporting the following amendments to the Bill:

1. The level of payments should be increased beyond the current proposed 75% of average compensation. There is no justification for mesothelioma sufferers, who are mainly victims of our industrial past, to receive a substantially lower level of compensation than that available to others.

The recent debate in the House of Lords saw the proposed payment rate increase from 70% to 75%, but this still falls well short of the level necessitated by the moral duty, which sits behind this proposed legislation. A modest increase to 80% of average compensation would still fall well within the 3% levy on Gross Written Premiums (which the Insurers and the Government have defined as affordable) over the 10-year impact assessment of the Scheme.

2. The Government published an impact assessment in November 2013, which confirmed that the cost of fulfilling claims will fall dramatically after the first four years of the Scheme. It is vital that following this period the 3% levy (of Gross Written Premiums) is not reduced and that any additional money left in the consolidated fund could be used to further expand the Scheme. Such monies could be used to ensure the Scheme covered other asbestos-related diseases, to increase the spend on medical research and, to further increase fund payments (up to a maximum of 100%). It is envisaged that the Scheme will run for around 40 years (when it is anticipated that there will be no more mesothelioma claims), and so the end of the first four years is not the time to be looking to reduce the levy.

3. The previous Labour Government’s consultation was launched on 10th February 2010 – this should be the start date for the Scheme. It cannot be right that the Insurance industry, whose very life-blood is the assessment and management of risk, would not have made plans to meet the new responsibility from this very first consultation. In the time between the start of that consultation and the start date proposed in the Bill (25th July 2012) it is likely that almost 700 people will have died from mesothelioma without recourse to compensation. The Government has already conceded that back-dating the cut-off date to February 2010 would be affordable within the 3% levy.

4. The Bill should be amended to ensure that mesothelioma sufferers are protected from the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Section 48 of the Act clearly prevents Sections 44 and 46 of the Act from coming into force in relation to mesothelioma claimants (which ensures that the reforms to conditional fee agreements / funding may not be applied to mesothelioma claims until a review has been carried out). However, in a statement issued on 4th December 2013, Shailesh Vara MP (a Minister in the Department of Justice) indicated the Department’s intention to apply sections 44 and 46 of Act to mesothelioma cases. It seems clear to me that Sections 44 and 46 of the Act have no relation to the Mesothelioma Bill, which provides for a scheme of last resort to make payments to mesothelioma sufferers, where no legal action against an employer or insurer is possible, because the employer or a record of the employer’s liability insurance cannot be traced. In contrast, the provisions in the LASPO Act only cover civil claims and the arrangements for conditional fee agreements. Expecting mesothelioma victims to give up 25% of their damages to lawyers as a success fee is wholly unreasonable.

5. As I argued when the Bill was receiving it’s second reading that the scope of the Scheme should be extended to include other asbestos related diseases. I can see no sound logic, or moral justification, why they should be excluded. I was delighted that Lord Freud confirmed, during the House of Lords debate at second reading, that: “…The issue of individuals who have developed other asbestos-related diseases through negligence or breach of statutory duty and are unable to bring a civil claim for damages of course needs to be addressed…” With this in mind I would urge the Government to look favourably upon the amendments tabled by Nick Brown MP which seek to commit the Government to reporting back to Parliament (within a year) as to how this expansion might be achieved.

6. Finally, I would urge Government to answer the calls from those, including Paul Goggins MP, to amend the Bill such that the levy imposed on the Insurance industry will include a research supplement to fund additional research into Mesothelioma. During the course of the next 30 years it is anticipated that over 55,000 people in the UK will die from mesothelioma unless a cure is found.

Currently, there is no state funded research, a point which Lord Alton has highlighted in the House of Lords – the figures are startling: current research, met by voluntary and private sector funding of £1.4million each year compares far less favourably in comparison to the annual spend on bowel cancer (£22million), breast cancer (£41million), lung cancer (£11.5million) and leukaemia (£32million).

Once again, I conclude that the proposed legislation is welcome, but to make the Scheme truly beneficial to the victims of this terrible disease, the Government must listen to those calling for these sensible amendments.