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Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships' House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse—that is why there is no financial privilege claim against it—but it seeks to support terminally ill victims of mesothelioma and their families. All sides of your Lordships' House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime, "““was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants””.—[Official Report, Commons, 17/4/12; col. 265.]" I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma. The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be ““watching the clock””, which is a phrase that was used in the other place—in other words, policing what lawyers are charging. He said that, "““it is quite right that someone who employs a lawyer has some idea of what is on that lawyer's clock and what they are charging. That is very important. If someone is sick, they will have family who can help them through their sickness””.—[Official Report, Commons, 17/4/12; col. 268.]" I suspect that when you are dying, especially from a debilitating and excruciatingly painful disease, you may have other things on your mind than watching the lawyer's clock. As one widow put it: "““Mesothelioma sufferers are in constant pain and always fighting to breathe, they suffer horrendously and they and their families are traumatised at what the future holds””." She also said: "““Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring””." It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government's regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury. The Member for Wythenshawe and Sale East, Mr Paul Goggins, who kindly shepherded this amendment in the Commons, asked with great clarity: "““How can the Minister expect such victims and their families—people who have received the diagnosis and know that they are going to die—to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?””.—[Official Report, Commons, 17/4/12; col. 278.]" Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships' House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as ““the conscience role”” frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform. By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Wednesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable Members of the House of Commons also hoped to speak but were unable to do so. In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said: "““It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades””." Supporting her, Andrew Bingham, Conservative Member of Parliament for High Peak commented on the all-pervasive nature of this pernicious disease. He said: "““My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.—[Official Report, Commons, 17/3/12; col. 271.]" Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well-made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said: "““The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims' damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose””.—[Official Report, Commons, 17/3/12; cols. 269-70.]" Tracey Crouch said: "““I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.—[Official Report, Commons, 17/4/12; col. 272.]" I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said: "““I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim””.—[Official Report, Commons, 17/3/12; col. 275.]" Finally, in resisting the amendment in the Commons, Mr Djanogly said that if it were passed, "““claimants in mesothelioma cases would have an advantage over others””.—[Official Report, Commons, 17/3/12; col. 268.]" An advantage over others? It is hard to think of many advantages enjoyed by victims of mesothelioma. That was an ill-judged and insensitive remark. The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for everyone—I fully accept that—but does that mean that we can never see the difference between one category of victims and another? Is there not a difference between someone lodging a claim for whiplash and someone who has contracted a terminal illness? Are we really incapable of prioritising or seeing grounds for exceptions, as we have now, for instance, in medical negligence cases—and rightly so? Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action. It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said: "““I have some experience of claims relating to that disease—or rather to mesothelioma … I think there is a real case for wondering whether we should not maintain assistance to that group of people … this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer””." He concluded by saying: "““I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration””.—[Official Report, 30/1/12; col. 1359.]" In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said: "““Asbestos victims should not, and financially cannot, subsidise other claimants' access to justice, nor can they afford to defend test cases run by rich insurers””." The letter urged Parliament, "““to protect asbestos victims from a gross injustice””." Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.