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Disease: Mesothelioma legislation – fatality figures

Mesothelioma deaths estimate

The government recently stated that it estimates around 60,000 people will die from mesothelioma between 2012 and 2041.   The figure was provided in an answer by Lord Freud in a question raised by Lord Alton in the Lords on 19 November.   The HSE has previously stated that the number of deaths from mesothelioma actually fell in 2011, to 2291 (from a figure of 2360 in 2010) but it expects the number of deaths to increase.  The statistical model suggests an uncertainty range of 5,000 deaths either side of that estimate. However, the true uncertainty range may be wider as longer-range predictions are reliant on assumptions about asbestos exposures that cannot currently be fully validated.  See extract from Hansard.   

Reforming mesothelioma claims consultation

In a ministerial statement on 4 December, the Courts Minister Shailesh Vara announced that ss. 44 & 46 of LASPO (ending of recoverability of success fees and ATE premiums) will apply to mesothelioma cases from July 2014. This is to coincide with the start of the compulsory payment scheme under the Mesothelioma Bill.  However, the government has declined to take forward the proposal for a Mesothelioma Pre-Action Protocol supported by a fixed recoverable costs regime, although they say they do wish to improve the process.  Read the government announcement and the ministerial statement.  The government says it will publish its response to the consultation shortly.  When it does, it is likely to appear on the consultation web page.

Mesothelioma Bill 2013 – latest news

This Bill had its second reading in a debate in the House of Commons on 2 December 2013 and went to Committee Stage on 10 December.  The Commons Public Bill Committee invited submissions from those with experience, expertise or special interest in the bill and it will now proceed to its report stage and third reading on 7 January 2014.  The Bill provides the legislative framework for a new Diffuse Mesothelioma Payment Scheme to make payments to people with diffuse mesothelioma who were exposed to asbestos either negligently or in breach of statutory duty by an employer, and who are unable to bring a claim for damages against the employer or an Employers’ Liability (EL) insurer.  The scheme is to be funded by a levy on insurance companies and, under current plans, would make payments to people first diagnosed on or after 25 July 2012.  It is hoped to make the first payments in July 2014.

This Commons Library Research paper sets out information for the Second Reading debate on the Mesothelioma Bill 2013 in the House of Commons.   

Asbestos (Recovery of Medical Costs) Bill (Wales)

The Bill

This Bill allows the Welsh Government to recover the costs of NHS treatment from defendants who have compensated claimants for asbestos related diseases when such NHS costs have been incurred due to the same injury.  The Bill is an extension of a similar scheme whereby NHS charges can be recouped from compensators in personal injury matters, as part of the CRU process.

It is estimated by the supporters of the scheme that it could raise between £1m and £2m per year for the public purse in Wales, although those figures are disputed by the ABI, who suggest that the figure would be significantly lower.  In fact, it is suggested by opponents that the costs of establishing and running the recovery system may mean that there is no benefit to the public purse at all by such a scheme.  Certainly, running a scheme for recovery of NHS charges associated with asbestos related diseases will not be as straightforward as operating such a scheme for personal injury or accident type cases.

Objections

The Bill was due to pass its final stages earlier this year but a vote on it was postponed at the last minute due to issues around its legality and whether the Welsh Assembly has the power to introduce it.  The insurance industry and others argue that because the Welsh Assembly does not have tax raising powers and given the fact the legislation does not specify that the money raised must be spent on the NHS specifically then, in effect, what the Bill would do would be to levy a tax on compensators.  It is also argued that the Bill may breach the Human Rights Act since it seeks to amend the scope of insurance policies issued both before and after the effective date of the legislation, thereby interfering with compensators’ peaceful right to enjoyment of their possessions.  It is noted that similar arguments were put forward in respect of the pleural plaques legislation introduced by the devolved parliaments in Scotland and Northern Ireland and did not succeed in those cases.

The presiding officer of the Welsh Assembly has indicated that the Assembly is competent to implement the Bill but at the same time she acknowledged that the conclusion was “finely balanced” with credible arguments on both sides.  This determination by the Presiding Officer would clearly not have any binding effect in relation to any subsequent legal challenges to the Bill whether by judicial review or otherwise.

Current Position

The Bill has just passed its final stage with a vote in favour in the Assembly and is now concluding a four week period of “intimation” (21 November – 18 December 2013).  During this period it is open to the Counsel General of Wales or the Attorney General to refer the question of whether the Bill, or any provision of the Bill, is within the Assembly’s legislative competence to the Supreme Court for a decision (using section 112 of the Government of Wales Act).  The Supreme Court is the body to which issues of competence from the devolved legislatures are passed. Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.  We can confirm that the Counsel General has indeed referred the Bill to the Supreme Court and we await a decision from the Supreme Court next year as to whether or not the Bill is within or outside the Welsh Assembly’s competence.

Looking Forward

As things stand, we are not aware of any current proposal to introduce similar legislation into the Northern Ireland, Scottish or UK Parliaments.  The administrative and logistical problems associated with establishing and running such a scheme on a UK wide basis would certainly be very significantly magnified, Wales being a relatively small jurisdiction.

The referral to the Supreme Court means that there is no need at least for now of a legal challenge by way of judicial review based on both the issue of retrospective imposition of a liability on historic insurance policies and also in relation to the competence of the Assembly to introduce such a law.

There is an obvious parallel here with the legal challenges brought by insurers to the pleural plaques legislation introduced by the Scottish Parliament in the form of the Damages (Asbestos Related Conditions) (Scotland) Act 2009.  Insurers challenged the validity of that Act on two bases:

  1. That it was incompatible with Article 1 of the European Convention on Human Rights, namely, insurers’ right to peaceful enjoyment of possessions and therefore outside the competence of the Scottish Parliament.

  2. That the Act was open to judicial review as it was an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament.

Ultimately, those legal challenges failed; the Supreme Court held that the insurance industry was a “risk business” and one of the risks insurers run is that the law will change during the term of the policy, and also that it was within the competence of the devolved parliament to legislate on social issues. If any judicial review had been required then it would have needed to overcome these same hurdles, the purported grounds of challenge being the same or similar to the challenges put forward by insurers to the Scottish Act. 

Indeed, it is also clear that the objections which the ABI have already put forward to the Welsh Bill have been drafted at least to some extent with the Supreme Court judgment in the pleural plaques case in mind.  There are grounds for arguing that the Welsh Bill is different to the Scottish pleural plaques Act. 

Firstly, there is a real issue as to whether the scheme would actually be cost effective and the ABI argues that it would not.  Due to the very nature of asbestos victims, it is often not straightforward to point to one single reason as to why the patient is in hospital and it is possible to see how this could lead to a large number of CRU appeals which could potentially “clog up” the system. 

Secondly, the issue of whether the Bill is within the competence of the Welsh Assembly gives rise to different issues than those relevant to Scotland and it is these that the process in the Supreme Court will concentrate on.  The Welsh Assembly does not have tax raising powers.  The Welsh Bill is effectively a way of raising money for the Welsh government as opposed to compensation being paid to private individuals as in the Scottish pleural plaques example.  Defenders of the Bill might argue that it is in fact legislation on the issue of health care (which is a devolved power), but the Bill does not specifically say that the monies raised would go to the Welsh NHS; they would go to the Welsh Exchequer more generally.  That being the case, there appears to be a reasonable argument that the effect of the Bill would be to impose a tax or levy, something which is outside the jurisdiction of the Welsh Assembly.

The above are just some of the issues which would be explored in future developments in this area, and we await news of progress in the Supreme Court.  If the Act comes into effect, then the other UK jurisdictions are likely to be watching with some interest how it works in practice. 

Keep track of the Bill’s progress on the Welsh Assembly website.

Contact

For further information please contact Patrick McBrien, Director on 0161 603 5236


By Patrick McBrien

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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