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| ISSN 1470-8108 | Issue 70 | Spring 2008 |
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Contents:
1. Justice Delayed, Justice Denied 1. Justice Delayed, Justice Denied Since the House of Lords shut down pleural plaques compensation last year,1 opposition has been growing amongst asbestos victims, trade unions, members of the public and politicians who view the Law Lords judgment as a betrayal of those suffering from a “working-class industrial injury caused by negligent exposure to asbestos.”2 Many sectors of civil society have issued calls for the Government to reinstate the rights of asbestos sufferers as they did in 2006 when the Law Lords handed down a defendants' ruling in the Barker case. The Asbestos Victims Support Groups Forum UK, which represents more than a dozen groups in England, Wales and Scotland, has urged prompt cross-party action to compensate people for “negligent exposure to asbestos which affects the lungs and causes such a heightened risk of a fatal disease and consequent fear and anxiety, and in many cases psychiatric illness.”3 In an extended Parliamentary debate on January 23, 2008, MPs demanded that the Government take decisive action to overturn the decision in the conjoined appeals commonly referred to as the “Rothwell case.” Voicing their constituents' outrage at the reversal of decades of judicial precedent, Parliamentarians commented: 4
Speaking on behalf of the Government, the Parliamentary Under-Secretary of State for Justice, Bridget Prentice, gave little away: “we have accepted the House of Lords decision and we do not think it would be appropriate to legislate… it does not appear that a register is appropriate… it would be inappropriate for me to close the door on further discussions about what else might be achievable. I need to involve colleagues from other Departments that would be directly affected by any change in the law, if any were to be made…”5 Concluding her remarks, the Minister floated the possibility of further discussions to find a “way in which we can help and support people such as their constituents, who have been suffering as a result of industrial injuries and pleural plaques.” At the end of January, two Early Day Motions (EDM 812 & 815),6 signed by 184 MPs, documented a groundswell of concern over the injustice meted out to “thousands of sufferers in former industrial heartlands such as the North East” and called on the Government “to take urgent action to ensure those suffering from pleural plaques receive justice.” The same day these EDMs were tabled, hundreds of protestors mounted a demonstration on College Green and a Parliamentary rally in Portcullis House. As demonstrators were making their way to Westminster to take part in the January 29 events, national newspapers reported that Zurich Insurance, one of the victorious defendants in the plaques case, had hired Former Prime Minister Tony Blair as an advisor on political and environmental issues. According to Bloomberg.com, Blair will advise Zurich's Chief Executive Officer James Schiro on “general political trends and developments.” There is little doubt that Zurich can afford to pay Blair's annual retainer, rumored to be in the region of £500,000 ($987,000); its share of the £1.4 billion pleural plaque windfall that UK insurers are anticipating should be more than enough to keep up the Blairs' post-Number 10 lifestyle.7 Protest Meeting in Westminster The pleural plaque protests were supported by a cross section of UK trade unions including the GMB, UCATT, the T&GWU and Unite, formerly Amicus. Asbestos victim support groups from Manchester, Sheffield, Liverpool, Hampshire, Cheshire, Derbyshire and Glasgow, and activists from all over the country were also out in force on January 29th.8 The Atlee Suite was full to capacity with groups of delegates massing at the back and standing in the aisles as MPs came and went as their schedules allowed during the highly-charged two hour session.9 Alan Ritchie, General Secretary of the construction union UCATT, said corporate behavior on asbestos had shown: “pure contempt for those whose only crime was to work for a living… The Law Lords decision was wrong and is a major injustice for thousands of workers. Urgent legislation is essential to compensate workers who through no fault of their own have had their health damaged.” Paul Kenny, the GMB's General Secretary, detailed the high incidence of asbestos-related disease among the union's membership making a special mention of the laggers. An analysis of data from a GMB branch of Heat & Frost Laggers listed 58 members who had contracted asbestos-related disease (out of only 350 in total):
Twenty-three of the branch members had died from their illnesses. Plaque sufferers are, said GMB official Jimmy Parrish not “lumps of wood. How can you tell them that they have sustained damage but not been harmed,” he asked. Ed Blissett, the GMB's London Regional Secretary, pledged that the union will, in cooperation with the wider labor movement and trade union law firms, mount a forceful campaign to get this decision overturned. The union is urging branch members, activists and sufferers to write to Jack Straw and their MPs expressing their concerns. There was, many speakers pointed out, little doubt that withholding compensation from plaque sufferers is part of a sustained attack by vested interests to minimize their asbestos-related liabilities. Mentioning other onslaughts on victims' rights such as the Chester Street debacle and the Barker case, MPs called the asbestos defendants and insurers involved in the Rothwell case “international spivs” and the Law Lords “old fogies.” MP Tony Lloyd, who as a young man had worked for a subsidiary of the UK's leading asbestos group, Turner & Newall Ltd., said he wanted to see the executives who had exposed workers to the asbestos hazard in jail. There was overwhelming support for Parliamentary action to reverse this “iniquitous decision,” with many MPs agreeing they would progress this issue at the highest levels of government. Mobilization of Civil Society In early February, MP Dennis Skinner brought the pleural plaque debacle up at a meeting of the Labor Party's National Executive Committee, the body that sets strategic objectives and oversees the Party's policy-making process. On February 20, UCATT officials and members, asbestos campaigners and Labor MPs launched a national pleural plaques campaign; 100,000 pre-paid postcards addressed to Jack Straw, the Secretary of State for Justice, were to be distributed through the union's national network so that UCATT members could ask Straw for details of Government plans to “reverse the Lords decision.” On February 21, 77 MPs noted their support for UCATT's campaign in Early Day Motion 1001: “pleural plaques only develop after prolonged asbestos exposure … they indicate an increased risk of developing a more serious complication in later life; and [the House] calls on the Government to bring forward legislative proposals to allow compensation for pleural plaques, recognizing the condition as a permanent and irreversible structural change to the lining of the lung caused by negligent exposure to asbestos.” Regional launches were held by UCATT in “asbestos hotspots” such as Cardiff (February 22), Barnsley (March 3), Stoke-on-Trent (March 6), Barking (March 10), Newcastle (March 17), Hull (March 28) and Norwich (April 15). Keeping up the pressure, UCATT organized a seminar (March 26) in the House of Commons which featured presentations from experts such as Solicitor Matthew Cartledge and Professor Mark Britton. Pleural plaques are not, as defendants have claimed, like freckles, MPs were told. Professor Britton warned that a diagnosis of pleural plaques can seriously affect the patient and his family: “People's whole quality of life disintegrates and it leaves mental casualties.” At the end of February, a delegation of MPs met Justice Secretary Jack Straw and urged him to “get the insurers to the table.”10 MP John Battle told Journalist Mark Hookham: “I think he (Straw) will look for a way through this. I urged him to get the insurance companies around the table with the Ministry of Justice.” Amidst the furor of action over pleural plaques both behind the scenes and in front of the cameras, the 3rd national Action Mesothelioma Day (AMD) took place. Throughout the country, asbestos activists mobilized support with public rallies, balloon releases, conferences and events to highlight the country's ongoing asbestos epidemic.11 In the run-up to AMD, a survey was published which revealed that the majority of builders and gasfitters remain unaware of the asbestos hazard.12 Tony Whitston, Chair of the Asbestos Victims Support Group Forum UK, picked up on this theme when he told the Manchester AMD rally: “Asbestos is still a danger for our tradesmen today. We must do everything we can to ensure that our plumbers, joiners, electricians and construction workers are aware of the risks they face from asbestos… If we do not act now a whole new generation of people will develop mesothelioma [and other asbestos-related diseases] in 30 years time.” Rumors of a Deal Surface With no firm indication of which way the Government would jump, the publication of articles in the Yorkshire Evening Post on March 7 and the Sheffield Telegraph on March 10 was something of an anomaly.13 Journalist Mark Hookham quoted “Westminster sources” as saying that a voluntary deal was imminent whereby insurers would agree to set up an administrative process to pay compensation to pleural plaque sufferers in the region of £5,000: “The insurers are understood to be likely to agree to the arrangement because it will give them certainty over how much they will be paying out to sufferers in the long-term. They will also hope it will persuade ministers not to beef up the regulation of the insurance industry in future years.” Just a few days later (March 12) during Prime Minister's Question Time, MP Stephen Hepburn categorized the pleural plaque morass as a “dreadful, Victorian scandal.” Responding, Gordon Brown, who represents the Scottish shipbuilding constituency of Kirkcaldy and Cowdenbeath, said: 14 “Asbestosis and mesothelioma are terrible diseases, and all of us who have seen the effects that they cause know that we have to do more to help the victims of those diseases. On pleural plaques, we are looking at the matter at this very moment. We will publish a consultation document soon. We are determined to take some action, and I am very happy to meet this delegation [of MPs].” The following week, the Insurance Times confirmed that: “The government is seeking a deal that would see insurers pay up to £5,000 each to victims of pleural plaques. The proposal follows the Prime Minister Gordon Brown's intervention in the debate, and could cost the industry up to £500m… The ABI (Association of British Insurers) had denied the discussions had taken place, but a senior insurance source confirmed they had and that the industry was considering a new deal, adding: 'It's based on the fear that the Scottish Parliament may succeed in overturning the law and that would mean the government south of the border could follow suit.'”15 Should the ABI eventually make a deal on pleural plaques, it would mark a major shift in its position. On the day the Law Lords decision was announced, the ABI Director General Stephen Haddrill wrote a letter to Peter Hain, the Secretary of State for the Department for Work and Pensions, saying: “Some are proposing that the Government should change the law to reverse this judgment. We believe this would undermine confidence in the legal system, the highest court having taken a clear decision based on common law principles. We also believe that an extremely dangerous precedent would be set in other areas if exposure alone, not health effects, was allowed as a basis for compensation. The legal costs could be massive… I am copying this to Jack Straw, Alistair Darling, and because of the large number of cases that arise from the nationalised industries, to John Hutton.” Scotland: Taking the High Road Throughout this tale of public pressure, trade union mobilization and political machinations, the threat of unilateral action by the Scottish Government has concentrated the minds of elected representatives and political mandarins on both sides of the border. Given the pessimism generated by the seemingly pro-defendants' position evinced by the Law Lords during the hearing of the Rothwell appeal in June 2007, discussions amongst interested parties about viable alternatives in Scotland had progressed to an advanced stage by the time the disastrous ruling was published in October. Months earlier, representatives of Clydeside Action on Asbestos (CAA), in collaboration with Solicitor Advocate Frank Maguire of Thompsons Scotland and others, began work on a draft bill to preserve the status quo which existed in Scotland regarding pleural plaques compensation. The draft legislation, which was sent to the Cabinet Secretary for Justice Kenny MacAskill on October 17, was the subject of a meeting MacAskill attended on November 7 with CAA representatives Phyllis Craig and Harry McCluskey and Clydebank Asbestos Group representative Bob Dickie and Mr. Maguire. Afterwards, the CAA held a Parliamentary briefing as did the Association of British Insurers. During the one-hour debate on pleural plaques which was the final item of business at the Scottish Parliament that day (November 7), MSP16 David Whitton waved some papers in the air as he categorized the ABI position paper on pleural plaques as “disgraceful,” saying: “It has headings such as 'Pleural plaques do not impair health… Pleural plaques do not lead to any other disease' and 'Pleural plaques are not compensatable.' If I were a member of the association's corporate communications team, I would be embarrassed to put out such a briefing.”17 Closing the debate, the Minister for Community Safety Fergus Ewing cited the opinion of the Chief Medical Officer for Scotland, Dr. Harry Burns: “pleural plaques associated with exposure to asbestos signify greatly increased lifetime risk of about ninefold of developing mesothelioma, and a small but significantly increased risk of developing bronchial carcinoma of about 1.4-fold.” Ewing was in no doubt that the Scottish Parliament could and should take unilateral action over this issue: “we are the Scottish Parliament – Scotland is no longer the only country in the world that has her own legal system but no legislature… it is open to us to legislate on the issue. It is open to us to seek a political solution and to act.” Three weeks after the debate, an official statement by the Holyrood Government confirmed its intention to: “take steps to reverse the House of Lords Judgment and ensure that people with pleural plaques can continue to raise an action for damages… The Scottish Cabinet agreed at its 27 November meeting to introduce a Bill which will reverse the House of Lords Judgment and enable those negligently exposed to asbestos who have been diagnosed with pleural plaques to continue to be able to raise and pursue actions for damages in Scotland. The provision of the Bill would take effect from the date of the Judgment (October 17). The Government is currently considering what the earliest opportunity is for the Bill to be placed into the Legislative Programme. The law on damages is devolved and while there are many similarities in the law north and south of the border, in this instance the UK Government have decided that it would not be appropriate to legislate.”18 Revisiting the plaques issue on February 6, 2008, when a partial regulatory impact assessment on the proposed Scottish Bill was put out for consultation, Justice Secretary MacAskill announced a significant extension to the proposed legislation saying that the rights for those suffering from pleural plaques to raise a civil claim for damages would be extended to sufferers from asymptomatic asbestosis and asymptomatic pleural thickening.19 The expansion of the legislation signaled the Government's acceptance of arguments advanced by Solicitor Advocate Maguire on behalf of the Glasgow-based asbestos victims groups which were concerned about defenses being mounted in cases of other asymptomatic asbestos conditions since the Rothwell judgment. According to an official government source, it is expected that the Bill will be introduced before the summer recess. In the absence of any Parliamentary hiccups or interference from the Government in Westminster, the Holyrood legislation could be on the statute books by the end of 2008 and sufferers from pleural plaques and other asymptomatic asbestos-related conditions will again be able to obtain £5,000-£10,000, sometimes as much as £12,000, in court-awarded compensation. There is no chance that pressure on Ministers will let up. On April 2, meeting in Manchester to discuss recent developments, the Asbestos Victims Support Group Forum welcomed the proposal to introduce “a scheme that would pay a minimum of £5000 to all pleural plaques sufferers and allow court action for any subsequent asbestos disease.” On April 22, the GMB is holding a Pleural Plaques Briefing in the House of Commons for GMB-sponsored MPs. On May 14, the pleural plaques campaign is on the agenda of the annual House of Commons Asbestos Seminar. The National UCATT Conference will include a seminar on the pleural plaques campaign in mid-May and the GMB's annual meeting in Plymouth will also consider this issue at a fringe meeting in June. Concluding Thoughts The Government is running out of time. Despite all the fine talk about consultation and action, pleural plaques sufferers are in the same position they were in six months ago. While the resolution of this situation seems to have reached a stalemate under the Brown Government, Holyrood's expedited legislative process could ensure that within months Scottish pleural plaques sufferers will again be able to claim compensation for their condition through the courts. The frustration and grievances such a differentiated outcome would engender has been widely commented upon. MP John Battle asked the House of Commons whether he should advise his constituents to “Pack your bags and move to Paisley, because that is your only hope.” More than two months ago, Minister Bridget Prentice admitted that: “if the Scottish Executive act on their announcement after the House of Lords decision, it would make things very complicated. We have asked for information from the Scottish Executive about progress on the matter, and I am afraid to tell my hon. Friends that silence was the great reply. We have not heard much about what progress, if any, they have made … If the Scottish Parliament finds a way of dealing with it, we will examine that very carefully. I agree that it would be unacceptable in such a situation for people in one part of the United Kingdom to receive compensation and others in another part not to do so. That would be inequitable.”20 Inequitable for sure, but impossible, clearly not. 2. Universal Mesothelioma Compensation If everything goes according to plan, shortly after Parliament convenes for the Autumn 2008 session, anyone who is diagnosed with mesothelioma as a result of exposure to asbestos in the UK, whether through occupational, para-occupational or environmental exposure, will be entitled to compensation from the Government. When The Child Maintenance and Other Payments Bill comes into force, the UK will become only the 2nd national jurisdiction to have universal mesothelioma compensation.21 While some people including MP Michael Clapham “thought we would have had it (the Bill) through in a month and on the statute books,”22 the legislative process has been time-consuming and painstaking involving input from HM Treasury, the Ministry of Justice, the Department of Trade and Industry (DTI), the Ministry of Defence (MoD), the Department for Social Development, Northern Ireland, Jobcentre Plus and the Scottish Office as well as other stakeholders including the Association of British Insurers, the Association of Personal Injury Lawyers, asbestos victims' groups and others who work on various aspects of mesothelioma treatment and/or compensation.23 The Bill, which is awaiting its report stage and third reading in the House of Lords, should receive Royal Assent by the end of May 2008;24 after that, secondary legislation will be drafted to fill in details such as amounts to be paid out to claimants. There will be a sliding scale of payments depending on individual factors including age at diagnosis. It is anticipated that the average payment will be £10,000 during the first two years of the scheme operating. In later years, the size of payments would increase as funds allow; hopefully in year three, the levels of compensation from the mesothelioma scheme will be the same as those paid out by the Pneumoconiosis etc. (Workers' Compensation) Act 1979, currently averaging £19,500. The priority is to ensure that awards are paid out quickly so that claimants can have the benefit of them during their lifetimes. A close reading of the Regulatory Impact Assessment (2007) is informative on several counts: 25
In August/September 2008, Jobcentre Plus will organize regional events to explain the new legislation to lung cancer nurses, asbestos victim support groups and other interested parties. Lung Cancer & Mesothelioma: Facing the Challenge! On May 13, 2008, the Kent and Medway Cancer Network is holding its 4th annual event which will focus on lung cancer and mesothelioma. The venue is the David Salomons House in Tunbridge Wells. The agenda, which is oriented towards medical professionals, features presentations on lung cancer causation and diagnosis, mesothelioma symptom control, therapeutic interventions, CXR, CT and PET imaging, surgery and the changing role of the Clinical Nurse. For more information, contact: Frances McKay, Macmillan Lung/Mesothelioma Nurse Specialist on 01634-825212 or Caroline Williams, Macmillan Lung Cancer Nurse Specialist on 01634-825391. Conference: Asbestos & the Law This CPD-Law Society accredited conference will be held at the Merseyside Maritime Museum, Albert Dock in Liverpool on June 10, 2008 by the Merseyside Asbestos Victims Support Group. Invited speakers include: Barristers Carl Money & Chris Melton, Professor Tom Treasure, Solicitor Andrew McDonald and Radiologist Dr. Entwistle. For more information, contact John Flanagan at: 0151 236 1895 or by email: gfr15@dial.pipex.com XVIII World Congress on Safety and Health at Work From June 29-July 2, 2008, the world's largest international event on occupational safety and health will take place in Seoul, Korea. During the conference, jointly organized by the International Labor Organization, the International Social Security Association and the Korea Occupational Safety and Health Agency, three asbestos symposia will take place: Asbestos – A Global Disaster; ILO and WHO Action Towards the Elimination of Asbestos-Related Diseases; and Asbestos: International Trade Union Campaign on Eliminating Asbestos Use and Preventing Asbestos Diseases. For more information, see the website: http://www.safety2008korea.org/eng/ Mesothelioma Conference The 9th international conference held by the International Mesothelioma Interest Group (IMIG) will take place from September 25-27, 2008 in Amsterdam, the Netherlands. The organizers of this event hope that the gathering will continue IMIG's tradition of providing the opportunity for the international mesothelioma medical and research community to consider recent discoveries on genetics, epidemiology, pathology and the clinical treatment of mesothelioma. Within the auspices of the IMIG conference, a joint meeting with the European Association of Cardio-Thoracic Surgery will be held. For more information, see the website: http://imig-online.com/ Compiled by Laurie Kazan-Allen
___________ 1 Kazan-Allen L. The End of UK Compensation for Pleural Plaques? British Asbestos Newsletter. Issue 69, 2007-2008. 2 This quote is taken from a question asked during Prime Minister's Question Time by Jarrow MP Stephen Hepburn on March 12, 2008. 3 http://www.asbestosforum.org/ 4 MPs who spoke during this debate included: Jim Sheridan, Michael Clapham, Stewart Hosie, David Anderson, Robert Fello, Bob Spink, John Battle, Jim McGovern, Paul Rowen, Colin Breed, David Heyes, Ian McCartney, David Howarth and Henry Bellingham 5 http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080123/halltext/80123h0009.htm 6 http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=34977&SESSION=891 7 Hencke D. Insurance job takes Blair's earnings above £7m. January 29, 2008. 8 Kazan-Allen L. Landmark Demonstration against Pleural Plaques Ruling. January 30, 2008. 9 MPs in attendance included: Michael Clapham, Doug Henderson, Charlotte Atkins, Ian McCarthy, John McFall, Kevin Baron, John Battle, Jimmy McGovern, Iain Wright, John Robertson, Ann Cryer, Frank Doran, Tony Lloyd, Dennis Skinner, Doug Naysmith, Jon Cruddas, Julia Goldsworthy, Kevin Jones, Stephen Hepburn, Ian Gibson, Nick Brown, Peter Kilfoyle, Kelvin Hopkins, Gordon Marsden, Alison Seabeck, Nigel Griffiths, Celia Barlow, Jon Trickett, Dave Anderson 10 Hookham M. Calls for 'justice' in wrangle over asbestos pay-outs. Yorkshire Evening Post. February 28, 2008. http://www.yorkshireeveningpost.co.uk/news/Calls-for-39justice39-in-wrangle.3822975.jp 11 Kazan-Allen L. Day of Asbestos Action. March 3, 2008. 12 We Didn't Know About Asbestos Risks. February 22, 2008. http://news.bbc.co.uk 13 Hookham M. Payments hope for lung disease sufferers. Yorkshire Evening Post. March 7, 2008. 14 From 1983-2005, Brown represented Dunfermline East, but this constituency was abolished in a major electoral shake-up and was replaced by Kirkcaldy and Cowdenbeath. 15 Brown to offer insurers pleural plaques deal. Insurance Times. March 19, 2008. 16 MSP: Member of the Scottish Parliament. 17 One observer summed up the political climate in the Parliament during this debate as follows: there was, he wrote, “full support from the SNP, very solid, substantial support from the Labour MSPs and also Lib Dems and Greens. There was even support from the Conservatives.” 18 Scottish Government News Release. Asbestos claims bill planned. November 29, 2007. 19 Scottish Government News Release: Steps to strengthen asbestos claims bill. February 6, 2008. http://www.scotland.gov.uk/News/Releases/2008/02/06095939 20 http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080123/halltext/80123h0006.htm 21 The Government of the Netherlands was the first to award lump sum payments to all mesothelioma sufferers when it adopted a scheme in October 2007. 22 Blundell H. Interview: Michael Clapham MP. APIL Newsletter Vol 18, Issue 3. March 2008. 23 http://www.dwp.gov.uk/childmaintenance/pdfs/cm-bill-ria1.pdf 24 Child Maintenance and Other Payments Bill [As Amended in Grand Committee] 25 http://www.publications.parliament.uk/pa/cm200607/cmbills/118/en/2007118en.pdf ___________ Compiled by Laurie Kazan-Allen |