My Lords, with his characteristic courtesy, earlier this week the Minister gave Members of the Committee the opportunity to meet him to raise concerns about issues that arise out of the Bill. I went to see him and raised two questions, one of which was the issue of eligibility. Therefore, I am very happy to support the remarks that the noble Lord, Lord Howarth of Newport, has made and to support this group of amendments.
The additional cost of back-dating eligibility to February 2010 pales, as the noble Lord said, into insignificance compared with the hundreds of millions that the insurers received from the taxpayer prior to the Government recovering lump-sum payments under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979.
Because it was an issue that he raised during our discussion on Monday, the Minister may also say that the insurers may be concerned about their right to property—that is, to compensation—under the Human Rights Act. However, asbestos victims lost not only their compensation, or right to property, but their right to life, and two years’ back-dating seems a very small concession to make in that context. The noble Lord, Lord Howarth of Newport, is right: surely there would be a case for some of those affected by the Bill to challenge the Government in the courts. I should be grateful if the Minister would tell us what legal advice he has received on that issue.
The Committee should perhaps especially consider that the commencement of the consultation in February 2010 is a seminal date. For those affected, it represented a promise waiting to be fulfilled. At the very least, the eligibility date for a payment should be the commencement of the consultation—a point that I shall return to in a moment.
I also want to refer to a point that the noble Lord, Lord Howarth, mentioned concerning reserves. The Minister says that he cannot set an earlier date because only at the date of the announcement could insurers have begun to reserve against making payments. However, for two years the ABI discussed the detail of a payment scheme with the Minister, and it can hardly have woken up on 25 July 2012, shocked that it would have to reserve against making scheme payments. Just as importantly, surely it should have been reserving against asbestos claims 50 or more years ago, as the noble Lord, Lord Freud, himself implied when prefacing his speech at Second Reading. He did so with a reference to the Newhouse Thompson report, to which I have already alluded and which was published in 1965.
First, I think that the Government should be held to account for this date of February 2010 rather than July of last year, because that is when they issued their consultation paper, Accessing Compensation: Supporting People who Need to Trace Employers’ Liability Insurance. I have a quotation from that report which underlines why it is not unreasonable for mesothelioma victims to reference that date as a day when they think this scheme should commence. The Government said that they,
“are also persuaded that an Employers’ Liability Insurance Bureau (ELIB) should form part of the package of measures to improve the lives of those who are unable to trace an old employer or their
insurer. An ELIB would be a compensation fund of last resort and would ensure that some individuals who are unable to trace EL insurance records would receive compensation”.
Commenting in the consultation paper on the low success rate of the employer’s liability code of practice in tracing insurers, the Government said:
“The Government are keen to support everyone who needs to trace EL Insurance and cannot accept that 40% of the people who need to use the ELCOP should be left without compensation. The Government are determined to do more. To achieve this, the Government propose the actions considered in the next chapter”.
Those two clear statements of intent left no one in any doubt of the Government’s intention to act to provide protection for those who could not trace an insurer. Mesothelioma sufferers diagnosed on 10 February or later would have had every expectation that the Government’s commitment to set up a fund of last resort would be honoured at least from the date of the publication of the consultation. The date of the publication of the consultation set alight that expectation and it has flamed ever since that time. It took more than two years for Ministers to respond to the consultation on 25 July 2012, on the last day before the Recess last year. Surely it is unacceptable now to throw a bucket of cold water in the face of mesothelioma sufferers and their families and to douse the hopes that they have rightly had at least since February 2010.
In law, a mesothelioma sufferer has three years from diagnosis to claim compensation. It would therefore be reasonable and consistent with current legal practice to take into account that limitation period. Applying the date 10 February is consistent with legal rules on the time allowed to make a claim and provides a more credible reason than the arbitrary date of 25 July 2012.
The Asbestos Victims Support Groups Forum responded to the questions concerning the date of eligibility. Question 15 asks:
“How should an ELIB start to meet claims to ensure fairness to claimants and funding at the start of the scheme?”.
The forum said:
“Claimants should present their claims and they should be dealt with in accordance with the civil law, including issues such as limitation. Sufficient funding should be made available to meet any successful claims”.
It is therefore imperative that the few cases where judgment has already been obtained and compensation awarded, but not satisfied because the insurer could not be traced, are paid under a newly established ELIB.
Whatever eligibility date is applied, many mesothelioma sufferers and their families will be bitterly disappointed and feel that the door has been closed in their face. Applying the date of 10 February 2010 will inevitably disappoint many, but it will at least apply a date that has credibility and which also allows for the long period between commencement of the consultation and the Government’s response. It would be just to capture all those who in the past were unable to trace their insurer and who could prove negligent exposure to asbestos. That is, regrettably, not possible. The very least we can do is to go back to the date of the consultation. I do not think that that is asking too much.