My Lords, when the Minister introduced the Bill on Second Reading, he rather gave us to understand that the Department for Work and Pensions and the Ministry of Justice were on separate planets, and I think used the phrase that one was not beholden to the other. Indeed, it appears that, within government, the left hand is not at all clear what the right hand is doing and vice versa. It should not be like that, of course. There is a principle of collective responsibility in government. More importantly, it matters very much that there should be coherent policy-making in the interests of mesothelioma victims and their dependants. The way in which policy is developed should not be for the convenience of Whitehall but should have an unwavering focus on producing a scheme as soon as possible that will in every dimension benefit mesothelioma sufferers.
The legal, and possibly other, costs associated with getting to the point of making an application and then pursuing it are significant. The impact assessment issued on 7 May—only last month—indicated that legal costs associated with the scheme overall would
be of the order of £24 million to £27 million. We were told that the legal costs incurred by an applicant to the scheme, in the event that he was successful, would be of the order of £7,000. However, in the previous debate, my noble friend Lord McKenzie drew to the Committee’s attention the new document issued by the department on 4 June—less than a month after the original impact assessment—which says that the published impact assessment,
“used a figure of £7,000 per individual for legal fees; here we have moved that assumption to £2,000 per individual (unless otherwise stated)”.
We have just talked about that, and I heard the Minister say that neither the £7,000 figure nor the new £2,000 figure had much solidity, and that it might end up somewhere in between. I would be grateful if he could explain to us what is going on, because it seems extraordinary that the assessment for an applicant making a successful application to the scheme should be £7,000 in legal costs one month and £2,000 the next. That shift is of a remarkable order of magnitude and leaves one a little anxious about impact assessments. I appreciate that they involve a whole mass of judgments and are very difficult to achieve with any precision, but there is extraordinary latitude here. Does the figure of £9,000 legal costs for an unsuccessful application still stand? As I say, does the overall figure that was given on 7 May still stand? As we go forward to Report, it would help the Committee to be given much more detail about how these figures are arrived at.
What costs will a claimant incur and what legal costs will he or she be able to recoup? I would be interested to know what happens about the preliminary legal costs that a claimant will incur before he reaches the door of the scheme. Following diagnosis, the claimant presumably has to make an appointment to see a solicitor. I do not know how this would work, but perhaps he would then be referred to a specialist personal injury solicitor. A lot of work must be done to determine whether a claim can be made against an employer or employer’s insurer, and to test whether that claim is strong enough to proceed in court. All these hoops must be gone through before the claimant is able to embark upon a claim against the scheme. Could the Minister in his response kindly escort the Committee along the path a claimant must take in legal consultation and legal process on his way to the scheme and to the completion of an application to it? We would then know much more about what the reality will be for claimants.
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Amendment 17 is intended to provide the Committee with an opportunity to probe this whole area. I have some specific questions, too. What will be covered by the fixed legal fees envisaged by the Minister at the Ministry of Justice, Mrs Helen Grant, in her Written Ministerial Statement on 18 December last year? It would be helpful to know exactly what that scheme of fixed fees will cover and what the foreseeable amounts might be. I would like to know—maybe the Minister has told us this, but it would be helpful if he put it clearly on record—whether the scheme will pay the lawyers directly, in the same sort of way in which the scheme will pay any social security recoveries to
the compensation recovery unit; or will the scheme pay the claimant, who then has to pay out legal costs from the sum he receives and himself make payment to the lawyers whose bills have to be met? However the legal costs are paid, whether they are paid by the scheme directly or by the claimant to the lawyers, will they be over and above the scheme award, or will the scheme award, already massively discounted at 70%, be further discounted by legal costs on top of the DWP recoveries? If the legal costs also have to be met out of the sum paid at typically 70% of what a court award might have been, this scheme begins to look pretty threadbare.
Amendment 28 refers to the situation in which someone appeals to the First-tier Tribunal against an award made by the scheme. The cost of advice associated with taking that step would not necessarily be only legal costs, but there could be legal costs. I know that the Government’s position is that they do not provide legal aid to support appellants to the First-tier Tribunal, but it is fanciful to suppose that tribunal procedures are simple, user friendly, easily accessible or easy to handle for people who want to refer their case to one, as if it were some simple matter of dispensing justice under the spreading oak tree. If the Minister doubts this, I recommend he looks at the Sir Henry Hodge memorial lecture given in 2011 by the noble and learned Baroness, Lady Hale, Justice of the Supreme Court, in which she explained very clearly and compellingly, in the context of the proposals put forward by the Ministry of Justice in the LASPO Act, that if you remove legal aid from people seeking to bring their case to a tribunal you expose them to procedures that are complex, difficult and daunting.
I do not expect the Government to unravel everything that was legislated in the LASPO Act in the last Session, but we are talking here about the very specific circumstances of a very specific and narrowly defined group of people who will be eligible for payments under the diffuse mesothelioma payment scheme. Given, as we have already noted, that payments under that scheme may be of the order of 70% of what claimants might have got in the courts, different considerations apply. I hope it would be possible, out of the scheme’s resources, to be able, if necessary, to provide some financial support to assist claimants who find that they need to appeal against a decision of the scheme.
Why are the Department of Work and Pensions and the Ministry of Justice out of sync, as they are? When the Minister told Parliament in his Statement on 25 July 2012 that the insurers had already set up ELTO and had agreed to introduce an electronic portal for registering mesothelioma claims, we were also given to understand that Mr Djanogly, the then Minister at the Ministry of Justice, was already discussing a new mesothelioma pre-action protocol. By that stage, the DWP had already been on the case for two years; it is now three years since the noble Lord rightly, following the impetus already established when my noble friend Lord McKenzie was in government, negotiated with the insurance industry. Even in July 2012, the MoJ was creaking into action. It had no excuse for being so slow off the mark even then. During the passage of the LASPO Act, the predicament of mesothelioma sufferers had been clearly stated and brilliantly articulated
by the noble Lord, Lord Alton, during the debate on important amendments. The LASPO Act reached the statute book in the summer of 2012, yet it was not until 18 December last year that Mrs Helen Grant made her Statement. I will remind the Committee of some of the things she said:
“Today I am announcing the Government’s intention to consult publicly on proposals to reform the way that mesothelioma cases are dealt with, including; introducing fixed legal fees for mesothelioma claims, a dedicated pre-action protocol for those claims and an electronic portal on which the claims will be registered”.
However, the noble Lord had himself six months earlier told us that they were at work on the electronic portal. The Statement from the MoJ continues:
“The consultation will be issued in spring 2013. The aim is to ensure that these claims are processed and settled as quickly as possible given the nature of this disease. As part of that consultation, we will carry out the review required under section 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on the effect of the changes to the recoverability of conditional fee agreement success fees and after the event insurance premiums”.
That was six months or so after the LASPO Act had reached the statute book, yet it was not until December that the Minister said that they were now going to set about that review. The Minister said:
“We intend to publish the outcome of that review next autumn … The Government consider that it is imperative that these claims are settled quickly and that early payment of compensation is made so as to ease the sufferings of victims of this dreadful disease and give some assurance that their dependants will be financially secure when they are no longer around. However, this cannot be achieved without a speedy pre-litigation process which is why the Government have decided to consult on how best to reduce delays in these cases”.—[Official Report, Commons, 18/12/2012; col. 95WS.]
The Minister promised that the process would be completed by the following autumn, in 2013: that is, 10 whole months in which to conduct the review. That does not seem ambitiously rapid. Even that timetable slipped, however. The MoJ, presumably too embarrassed to make another Statement to Parliament, tweaked its website shortly after the Queen’s Speech last month to tell us that the issuance of the consultation had slipped from the spring of 2013. It now said:
“We will bring forward a set of practical proposals in the summer of 2013”.
I know that we have not had much summer yet, but it is mid-June. The last time I asked, which admittedly was as long ago as last Wednesday, the consultation still was not out. The website continues to shed crocodile tears:
“We want to make sure that people with this dreadful disease, which is always fatal, get the compensation they are entitled to quickly and fairly”.
If we were not intent on being as consensual as we possibly can in this Committee, I would be tempted to say that the Secretary of State for Justice is presumably too busy undermining the justice system by privatising the courts and demolishing another great swathe of legal aid to have the time to consider the predicament of mesothelioma sufferers. However, I think these delays are shameful. I am sorry to press the Minister, who is a DWP Minister and who personally has done everything he can to advance this process as rapidly as he can. His frustration with the MoJ must be at least as great as ours. I look forward to his response to these points, and I beg to move.