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Compensation Bill [HL]

My Lords, I am pleased to see the noble and learned Lord, Lord Hoffmann, in his place. He delivered the lead speech in your Lordships' House in the decision in Barker v Corus and if he chose to intervene in the debate, I would be interested to hear what he had to say. He shakes his head. It would be incorrect to say that the decision in Barker v Corus was wrong. In a sense, no decision of the Appellate Committee of your Lordships' House can be wrong; its members declare the law, and the law, as declared by them, is the law. I have read the decision in Barker v Corus—I understand and agree with the logical process by which it was arrived at, by a majority of, I think, four to one—but, nevertheless, it does not follow that because a decision is correct it should be followed unquestioningly. It is the role of the members of the Appellate Committee to declare what the law is, not what it ought to be. I agree that the decision in Barker v Corus would undoubtedly cause severe hardship to a number of people with what seem to me to be legitimate claims to compensation. Therefore, we on these Benches very much welcome the amendments. They would mean that people who get this dreadful disease will receive full compensation, except to the extent to which their own contributory negligence is a possible cause. When I first saw what was proposed, I was seriously worried by the retrospective effect of the legislation. I was entirely happy that the Bill should apply to cases where the cause of action had not yet arisen, but I was doubtful about its application to cases still in progress or where the cause of action had arisen but action had not yet been commenced. I agree with the noble Lord, Lord Hunt, about retrospective legislation. The problem is that a retrospective overruling by Parliament of the decisions of the courts is, in principle, a breach of the rule of law. That is particularly so where the case is a decision on rights between private individuals or companies. Observing the rule of law in this way is of special importance in a country where respect for the rule of law has persuaded many foreign businesses to use our courts to settle their legal disputes, to our great financial advantage. I have, however, been persuaded that retrospectivity is acceptable here by the wholly exceptional circumstances of this case. First, there is the unusual nature of the disease; it is caused not by an accumulation of exposure, such as silicosis, which is contracted by miners, or lung cancer, which is caused by smoking, but may be caused by the inhalation of even a single fibre of asbestos. Secondly, another exceptional circumstance is that since the Fairchild decision, it appears that most employers and insurers have acted on the assumption that liability would be joint and several, and not several alone. Thirdly, and perhaps most important, I rely on the fact that those most seriously affected by the decision in Barker v Corus are willing to accept this as a special case. I say ““accept””—they do not welcome it but are prepared to accept it. Like us, they object to retrospective legislation in principle and do not wish this case to be treated as a precedent. I also note that Corus was not consulted and has objected to the retrospective element in this legislation. We therefore support the amendments, but I would welcome recognition by the noble Baroness—she expressed it at least in part in opening the debate—that this is an entirely exceptional case and not to be taken as a precedent for the future retrospective overruling of court decisions. There are some points of more detail. In the House of Commons, my honourable friend David Howarth raised a question of whether it could be argued that the drafting of the Bill left a possibility that damages could not be awarded at all in some cases. In the House of Commons, the Minister said that she would see whether the provision could be improved. Nothing has been done on this, which is presumably on the basis of legal advice. Was advice given that an amendment was not necessary, as suggested byMr Howarth? In case there is any remaining uncertainty, will the Minister assure us that claimants are not excluded from compensation on the grounds in any circumstances that they are guilty of contributory negligence? It seems, regrettably, that there is no possible way of providing compensation where all the claimants, employers and their insurers are either insolvent or have gone into solvent liquidation and have been wound up. In such cases, there is no defendant against whom proceedings can be brought. Will the Minister confirm that nothing in this Bill succeeds in giving compensation where there is no available defendant against whom proceedings can be commenced? It appears that compensation can be paid out of the Financial Services Compensation Scheme only if it is the insurer who is unable to pay. Does that mean that a defendant cannot claim against the scheme if another liable employer with the same victim has ceased to exist and was uninsured? What will happen if, as was the case with Barker, the victim was employed long ago and it cannot be ascertained whether the employer was insured? Is there any possibility in such a case of Corus being entitled to claim compensation from the scheme? I am concerned by the costs incurred on both sides in the Barker v Corus appeal to your Lordships' House. No order has yet been made and it is not clear who will be ordered to pay them. However, the decision of the Appellate Committee has been rendered largely irrelevant by this Bill and costs incurred by both sides have been to a very considerable extent wasted. Since the purpose of the Bill is specifically to overrule the decision in Barkerv Corus, would it not be appropriate for the Government to make a contribution towards the costs of either side, which have been rendered irrelevant by the Government’s action? There seems to be a moral obligation to do so. Subject to those points, I have no other comments on the amendments in this group. I welcome the hope and expectation that they will very shortly become law.