§ Sir Peter Lloyd (Fareham)
My purpose this evening is to raise with my hon. Friend the Minister of State for the Armed Forces the situation of service men who have developed asbestosis-related conditions as a result of exposure to that material in course of their duties before 1987.
The significance of the year is that it is when the Government invited and backed the private Member's Bill promoted by my hon. Friend the Member for Davyhulme (Mr. Churchill) to repeal section 10 of the Crown Proceedings Act 1947. The Government deserve full praise for taking that initiative, which enabled service men for the first time to secure damages for injuries sustained in service which were the result not of hostilities, but of error or negligence on the part of the Ministry of Defence or its agents. The ensuing Crown Proceedings (Armed Forces) Act 1987 put service men on the same footing as civilians employed by the MOD, and was intended to remove for the future a potent source of unfairness.
Naturally, like other legislation, the Act had no retrospective effect, and no service man who had sustained injury before 1987 could benefit from it. It simply drew the line under everything that had gone before. I well understand why that principle is followed by successive Governments of every political complexion when they legislate, especially on employment conditions, rights and obligations. Any other approach would nearly always produce too many difficult time-consuming cases, in which the evidence was no longer available or which produced unfairness and anomalies.
However, such common-sense rough justice, which ensures that everyone knows exactly where he stands, may be right for the generality of cases, but it does not serve for the very special circumstances of service men suffering from asbestos-induced disease and disability. The great difference when asbestos is involved is that the effects of exposure do not become apparent until many years later. So it is only recently, well after 1987, that service men are being disabled as a result of exposure in the 1960s and 1970s. Thus, with asbestos, no final line can really have been drawn in 1987. In fact, it is drawn again and again in practice, whenever the symptoms develop and an asbestos-related disability takes hold, and another service man or former service man finds his health. his job and eventually his life taken painfully away.
The unfairness to the former service man newly afflicted with the symptoms of asbestosis is not just in being told that he cannot apply for compensation because his condition is not really new, as it was the result of exposure before 1987; the unfairness lies also in the knowledge that a civilian MOD employee who has just developed the same symptoms, possibly from exposure while working in the same job at the same time all those years ago. can seek and get substantial compensation.
§ Mr. David Martin (Portsmouth, South)
I congratulate my right hon. Friend on bringing this growing injustice before the House. As he can see from the number of our hon. Friends who are attending the debate, it is a matter that takes up the time of, and causes anxiety to, quite a few of us. I hope that his debate will lead to early action by the Government.
§ Sir Peter Lloyd
I am grateful to my hon. Friend. He is quite right.
For the service man developing an asbestos-related condition in 1996, there is still only a war pension, while for the civilian MOD employee with exactly the same condition, there is industrial disability benefit and compensation. In a number of respects, the war pension is considerably more generous than IDB, although they both produce fairly similar sums weekly. Where disability is 100 per cent., that is about £90 to £100 a week.
It is in the availability of compensation, where the civilian victim can be awarded £150,000 to £200,000 in the severest cases, that the inequality lies. Compensation means a lump sum which can make the last months or years of a sufferer's life more comfortable, and can take away a great deal of worry about how his dependants will fare after his premature death.
The injustice is compounded by the cruelty of the condition. It can take many forms: from the deadly tumour of mesothelioma, to asbestos-induced lung cancer, to cancer of the larynx, asbestosis, pleural thickening and pleural plaques, in rough descending order of malignancy. Most are disabling and life shortening; all are a source of worry, discomfort and reduced activity.
This well-founded sense of injustice is further exacerbated by the knowledge that the MOD, like many other public and private employers, was culpably slow to act on the evidence, plentifully available in the 1960s and 1970s, that asbestos is a killer.
There is no doubt that the MOD failed to show the foresight and to exercise the proper care that it should have done. The fact that it has awarded compensation to almost 1,500 civilian employees since 1985 proves that point. I do not know how many service men have also developed one of these conditions. No doubt the information is present in the details of war pensions awarded. I was told in answer to a parliamentary question, however, that it would cost too much to sift out this information.
So what proportion of the 297,000 war pensions granted since 1985 are for asbestosis-related conditions is not known. It would not, I suppose, be unreasonable to assume that they are running at a level similar to that for civilian cases.
I know that I do not have to persuade the Minister of the pain and distress that these conditions bring to service men and their families. I know that he is aware of that. I know I do not have to win his sympathy for their plight. Nor do I have to convince him of the inequity of their treatment compared with their civilian colleagues, who were exposed at the same time and with the same horrific, though long-delayed, consequences. But I do realise that, as a Minister, he comes here tonight bound by the law and practice as they stand, and that he cannot offer the House a remedy off the cuff. I am not asking him for one.
I am, however, asking my hon. Friend to accept that this is a problem which simply will not go away. As the number of victims grows as a result of the after-effects of the intensive use of asbestos in the 1960s and 1970s, so will public disquiet and the sense of injustice, which cannot permanently be ignored. For it will not be until well into the next century that the number of new cases each year will begin to reduce.
1143 The fact that, unlike most Adjournment debates, I am not speaking to an empty House, but that my hon. Friends the Members for Portsmouth, South (Mr. Martin), for Portsmouth, North (Mr. Griffiths), for Isle of Wight (Mr. Field), and for Wyre Forest (Mr. Coombs), and the hon. Members for Leeds, West (Mr. Battle) and for Plymouth, Devonport (Mr. Jamieson) on the Opposition Benches have stayed to express their interest and support is an early sign of the strong and determined feeling that this subject will increasingly evoke.
I understand that my hon. Friend can promise no remedy now, but I make a particular request of him. Will he undertake with his colleagues in the Department of Social Security to study the problem, establish the facts, and make them available to the House?
It is unsatisfactory, to say the least, to be told that the number of war pensioners with asbestosis remains uncounted. I believe that the House should know how many there are and at what rate new applications are coming in; what the accurate comparisons between the financial circumstances of Ministry of Defence civilians and service suffers are, taking into account pensions benefits and compensation; and what is the nature and extent of the unprotected exposure of service men and MOD civilians to asbestos, and when it ceased.
If the outcome of my hon. Friend's study confirms, as I fear it will, a sharp inequity of treatment between service men and civilians, I am sure that he and his colleagues will need to give serious thought to how it might be ameliorated. I do not believe that retrospective legislation is the right answer. Instead, I wonder whether the expedient of the Secretary of State simply refraining from certifying asbestos exposure cases under section 10(2) of the Crown Proceedings Act 1947 would serve. I suspect that it might not, as he may have a duty to sign when a case meets the criteria. Perhaps my hon. Friend will reflect and let me know, if not this evening, in due course by letter.
I should imagine that the best way forward is by way of ex gratia payments designed to put the former service men suffering from asbestosis into a similar financial situation as the civilian. Again, there may be some difficulty, because, with the large number of cases that I fear there are, such payments may not be a legitimate source of discretion, which are designed to cover only special cases and not a whole category. Perhaps my hon. Friend will let me know what the legal considerations are here, too.
I urge my hon. Friend not to delay, not only because any extra help is needed by those service men and their families now but because I am sure that he would wish to forestall a case going to the European Court of Human Rights. The Portsmouth Evening News, which has been publicising the plight of these former service men, has opened a public fund to finance a legal opinion and initial test case. I shall not seek to lay out the grounds on which such a case might be based, as my hon. Friend has legal experts who can advise him more thoroughly than I—although I know that the Government have not always won judgments that they felt that they should have won from that court.
That apart, I believe that it would be a shaming end to this unhappy story if the Government, after more delay, were finally obliged to do the right thing for their 1144 asbestos-disabled service men only by the intervention of a bench of foreign judges. We should resolve this matter ourselves, willingly, justly and without delay.
§ The Minister of State for the Armed Forces (Mr. Nicholas Soames)
I warmly congratulate my right hon. Friend the Member for Fareham (Sir P. Lloyd) on securing this very important Adjournment debate. I acknowledge, as he did, the presence of other hon. Friends tonight, and that of the hon. Members for Leeds, West (Mr. Battle) and for Plymouth, Devonport (Mr. Jamieson) on the Opposition Benches. I am glad that this should be such a well-attended Adjournment debate. It induces a warm feeling in a Minister who is so used to speaking to an entirely empty House bar one other hon. Member—except yourself, Mr. Deputy Speaker.
My right hon. Friend has been an extremely assiduous campaigner on this issue, and I applaud his concern and, I understand, that of a number of his constituents, to see that ex-service personnel are not left without help or assistance, should they need it, after they have served their country well. I hope, however, that I can reassure him tonight that that is not the case. If I cannot deal with any of his points in my speech, I shall write to him. I assure him that we shall pay the closest attention to all that he has said.
Before I tackle the points that my right hon. Friend raised in his well-informed speech, I hope that he and others will forgive me if I set out a little of the history of asbestos usage. Asbestos is a natural, not an artificial, substance. Its widespread use dates from around 1890, and its common forms were used widely in industry for purposes such as insulation and fire prevention. Indeed, used in that way it certainly saved lives that would otherwise have been lost.
The hidden penalty was, of course, the long-delayed incidence of asbestos-related diseases resulting from the inhalation of airborne asbestos dust or fibres. Those diseases include certain extremely disagreeable types of cancer, and also the crippling lung disease asbestosis. They can take from 15 to over 40 years to develop.
One of the chief industrial uses of asbestos was in ships' boilers and engine rooms, including those of Royal Navy warships. Regrettably, people engaged in maintenance and repair work in such areas up to about the late 1960s could have been exposed to significant quantities of airborne asbestos dust and fibres. Thereafter, more comprehensive legislation was thankfully introduced to deal with the hazards of asbestos.
Much more stringent controls are in place today, and the use of asbestos has been discontinued in all applications for which there is a suitable alternative. All asbestos products require the approval of the Health and Safety Executive. Wherever possible, the Ministry of Defence employs specialist contractors, licensed by the HSE, to deal with asbestos.
Where MOD employees, service or civilian, have to work with asbestos, the same regulations now apply. The HSE must be notified, and the work is subject to scrutiny by the enforcement agency in just the same way as work in the civil and private sectors. We have also introduced procedures to record any exposure to asbestos dust above statutory action levels, and to provide appropriate medical surveillance.
1145 As my right hon. Friend knows, however—along, no doubt, with all other hon. Members who are present—the sad fact remains that, in the 1950s and 1960s, general controls on the use of asbestos were entirely inadequate. Royal Navy personnel and civilian workers engaged in ship maintenance and repair in boiler rooms and the like were allowed to breathe air containing much more asbestos dust and fibres than was safe, or than would now be permitted.
For that reason, there are likely to be a number of ex-service personnel, as well as civilian defence workers, among those from British industry generally who are now suffering and, sadly, dying from asbestos-related diseases. I fully acknowledge that, and we do not seek to avoid the issue in any way.
My right hon. Friend pointed out that ex-service victims of asbestos, unlike their civilian counterparts, have been debarred from suing for compensation by section 10 of the Crown Proceedings Act 1947. The law was changed in 1987. Before then, there had been some tragic cases of service men seriously injured by accidents on duty. If they had been civilians, they would have been able to seek compensation from their employer, when accidents resulted from negligence for which the employer was responsible.
Although the law was changed, so that service personnel now have exactly the same compensation rights against the MOD as their civilian counterparts have against their employers, Parliament accepted that repeal would not be retrospective, and that no ex gratia compensation would be paid for events that occurred before the repeal was announced in December 1986. That lack of retrospection was the subject of careful and detailed consideration at the time. Even for those tragic cases which had largely prompted the decision to repeal, compensation would not be paid.
In the light of recent representations from my right hon. Friend and others, we have looked carefully again at the asbestos issue. We all have the utmost sympathy with those who have suffered as a result of serving their country, whether the suffering began at the time or whether it set in later. However, to make payments now, on some sort of ex-gratia basis, to asbestos victims who are debarred by section 10 of the Crown Proceedings Act, would be entirely and wholly inconsistent with Parliament's decision in 1987.
How could we possibly justify compensating someone disabled now because of asbestos exposure pre-1987, and not compensating somebody disabled by a negligent accident pre-1987? At the same time, all the arguments against retrospection, which were accepted in 1987, apply even more so nearly 10 years later. It saddens me greatly to say it, but the fact is that we cannot reopen every page of these tragic histories and rewrite them with the aid of a blank cheque—which is what it would be.
§ Mr. David Jamieson (Plymouth, Devonport)
congratulate the right hon. Member for Fareham (Sir P. Lloyd) on securing the debate. He will appreciate that this is a cross-party issue. My hon. Friends the Members for Dunfermline, West (Ms Squire) and for Leeds, West (Mr. Battle) have a great interest in the matter, and I represent many service men and service women.
1146 Would the Minister at least give an assurance? We do not ask for a blank cheque. I have two simple requests for the Minister. First, will he make an assessment of how many service men receive war pensions due to exposure to asbestos? Secondly, will he make an estimate of what it would cost to compensate them at the same rate as civilian workers? If we got that from the debate, without an assurance from the Minister that an unquantifiable sum would be available, it would satisfy many hon. Members that at least the Government were moving along the right road.
§ Mr. Soames
Perhaps the hon. Gentleman will allow me to continue with my speech. I hope to deal with some of the points that have been raised in the debate.
My right hon. Friend has said that, with asbestos, unlike with accidents, the effect may have occurred after 1987, even though the cause was long before. This is correct, but it is still not a reason for treating asbestos victims differently. It has long been obvious, certainly since well before 1987, that cases of asbestos-related disease would continue to arise as a result of long-past exposure, for well into the future. As my right hon. Friend rightly said, they will continue into the next century.
I turn now to the comparison between former service men and former civilian workers. It is true that, where section 10 of the Crown Proceedings Act applies, ex-service men are not eligible for compensation, where their civilian counterparts are. On the other hand, ex-service men and their widows can apply to the War Pensions Agency of the Department of Social Services when disability or death has resulted from service in the armed forces, in war or peace. This includes those suffering from asbestos-related disease. The level of pension depends on the degree of disablement, but it can be, and often is, substantial.
I take as an example someone with 50 per cent. disablement through reduced lung function. That means being able to walk only for 200 or 300 yards on the flat. The basic rate of his war pension is over £50 per week. Someone with a more severe reduction in lung function who gets short of breath just from talking or dressing could be assessed as 100 per cent. disabled, and his basic rate of war pension would be over £100 per week. On top of this, he would qualify for extra supplements and allowances for attendance needs, inability to work, clothing, and so on. These could raise his war pension to anything up to about £370 per week. These sums are tax-free and index-linked. The rate for war widows in the age groups relevant here is from about £140 per week upwards, depending on allowances.
As my right hon. Friend knows, I am not able tonight to discuss individual cases. The pensions in question are not even matters for my Department. But let us imagine someone in his 50s or 60s, whose disability is moderate for a few years, then severe for further years. He then sadly dies from asbestos-related disease, leaving a widow who lives on for some years thereafter. War pension payments to the man and his widow could total many tens of thousands of pounds.
Of course, civilians with asbestos-related disease might qualify for help from the DSS. But given the level of benefits available for ex-service personnel under the war pension scheme, service men cannot be regarded as 1147 seriously disadvantaged through lack of compensation from the MOD for asbestos disease. The average compensation paid by my Department to former civilian workers with asbestos-related disease is under £20,000. Amounts vary greatly, of course, according to particular circumstances.
For example, someone who dies relatively young, thus losing career earnings, and also leaving dependants, would clearly be liable to get a higher rate of compensation. Compensation claimants can, of course, take the matter to court if they dispute the amount offered by the employer's insurance company. But the average pay-out to civilian asbestos claimants since 1987 for illness caused by asbestos when working for the MOD in previous decades is under £20,000.
Broadly speaking, I do not think that ex-service asbestos victims can be said to be disadvantaged compared with their civilian counterparts. They are disadvantaged compared with the position they would be in if they had been exposed to dangerous amounts of asbestos in the services since 1987, when the law was changed to allow service men to sue the Crown for compensation, in addition to war pensions. One hopes that no one has been so exposed in the services since 1987, but in any event that is a very different comparison.
I hope that my right hon. Friend will understand that the Ministry of Defence truly has the utmost sympathy for those who find themselves afflicted by those horrible 1148 diseases, and that the service personnel in question are most definitely not placed in a worse position than their civilian comrades.
My right hon. Friend is welcome to write to me, and to come to see me, if he knows of ex-service asbestos cases for which overall Government provision appears inadequate. I would ask him, however, to take each person's war pension into account. Anyone seriously disabled with asbestos-related disease through service in the armed forces can get a substantial tax-free income from the War Pensions Agency of the DSS.
My Department will study with great care the points raised by my right hon. Friend, the hon. Member for Plymouth, Devonport (Mr. Jamieson) and my hon. Friend the Member for Portsmouth, South (Mr. Martin). I will write to my right hon. Friend to deal with any issues that I have not dealt with tonight in detail. I give him an assurance that the MOD wishes to continue to study the problem.
I am aware of the campaign that is being run and the legal appeal fund that has been set up in right hon. Friend's constituency. We will continue to keep the matter to the forefront of our mind. I share my right hon. Friend's anxieties, and I warmly applaud the steps that he has taken so far to lobby and to raise the matter on the Adjournment. We will continue to study the issue, and I will be pleased to see my right hon. Friend to discuss the matter further.
§ Question put and agreed to.
§ Adjourned accordingly at three minutes past Eleven o'clock.