HL Deb 26 July 1985 vol 466 cc1491-7

1.5 p.m.

Baroness Trumpington rose to move, That the draft order laid before the House on 22nd July be approved. [30th Report from the Joint Committee.]

The noble Baroness said: My Lords, I beg to move that the draft Vaccine Damage Payments order be approved. As I have said, I am taking this order separately at the request of my noble friend Lord Campbell of Alloway, and of course I am glad to accede to his wishes. I am grateful to him for giving me prior notice of his questions.

This is an order which I am sure will be welcomed by the whole House, enabling, as it does, my right honourable friend the Secretary of State to double to £20,000 the vaccine damage payment, which has stood at £10,000 since the Act was first introduced in 1979. Any successful claim made on or after 16th August, when the order comes into effect, will attract a £20,000 payment. In addition, we are making arrangements for the same sum to be paid in the case of any successful claims made on or after 18th June, when my right honourable friend first announced his proposal to increase the payment. We should have needed to increase the payment to £17,750 had we wanted to give the payment its original 1979 value. Thus the increase is significantly beyond what was called for by inflation. My Lords, I beg to move.

Moved, That the draft order laid before the House on 22nd July be approved. [30th Report from the Joint Committee.]—(Baroness Trumpington.)

Lord Campbell of Alloway

My Lords, I am extremely grateful to my noble friend the Minister for having made arrangements for this order to be taken separately. I shall be brief, but that is not because it is not an extremely important matter. No doubt at the outset noble Lords on all sides of the House would welcome this order as the Government's immediate response to the mood of your Lordships' House when this matter was last raised by the noble Lord, Lord Allen of Abbeydale, and would acknowledge the debt which we all owe to my noble friend the Leader of the House for his good offices and timely intervention in this affair. I am sure that all noble Lords, wherever they sit, will endorse that sentiment.

But there is a problem of clarification. Clarification is sought of the draft and the Explanatory Note, which your Lordships will see at the end of the order. Unless Section 23 of the Social Security Act 1985 (which is not yet available, so one cannot see it) relates to the increment on the date on which the claim is made as distinct from the date of determination of a claim made before 16th August 1985, then there is nothing on the face of this order to exlude the increment from those determinations which are at this moment under consideration on claims made before 16th August, 1985.

I agree that if Amendment No. 5 to the Social Security Bill is now Section 23 of the Social Security Act, such increments on claims made before 16th August pending determination are inevitably excluded. They are excluded from increment, as stated in the Explanatory Note to the order. I am merely seeking confirmation from my noble friend the Minister because, unless Section 23 does what Amendment No. 5 appears to do, the order and the explanatory note would lie in conflict.

I have given my noble friend the Minister some notice of the questions that I now propose to put. First, would she agree that the Pearson Committee found that these brain-damaged children were in a special category of disability because the vaccine was administered in the public interest? Secondly, is my noble friend the Minister aware of any intention on the part of Her Majesty's Government to replace this statutory regime, which is temporary—it was introduced by the party opposite as a temporary measure—by implementing any of the recommendations of the Pearson report on strict liability irrespective of percentage disability (it is now 80 per cent. of nothing) and payment of true compensation analagous to that which would be awarded by a criminal injuries compensation board?

Fortunately I have given notice of the question; otherwise it would not be very fair to ask it. If the answer is no, is my noble friend aware of any intention by Her Majesty's Government to review the workings of the vaccine damage tribunals, which have attracted a measure of criticism in the courts on judicial view? Thirdly and lastly, is my noble friend the Minister, in any event, aware of any intention on the part of Her Majesty's Government to consider the introduction of strict liability, on certain drugs and on certain vaccines, which excludes the development risk defence? Or is she aware of any current intention on the part of Her Majesty's Government to adopt the concept of the draft directive in the European Community on product liability which will afford both the development risk defence and the state of the art defence?

I wonder whether, in this context, my noble friend the Minister can deal with these matters. With respect, they are related to the order that deals only with a temporary Act. These are therefore matters of public interest that have really no political content whatever.

1.15 p.m.

Lord Ennals

My Lords, I am very grateful that the noble Lord. Lord Campbell of Alloway, rose to speak before I did. The noble Lord, with his legal knowledge, has mentioned one or two questions that I was going to raise. He has also had the courtesy, which I did not show, of indicating the nature of those questions to the noble Baroness the Minister. I cannot criticise myself more than that.

This is an interesting example of the way in which this House can change the course of events, even if only mildly. I do not believe that the Minister would doubt that it is largely because of the question that was tabled by my noble friend (if he does not mind being called a friend of mine; he has been a friend over many years) Lord Allen of Abbeydale and the strong feelings addressed not only by the noble Lord, Lord Campbell of Alloway, but also by my noble and learned friend Lord Elwyn-Jones, by myself and by others on all sides of the House. I have already expressed my thanks to the Leader of the House for having picked up this issue and for conveying it, obviously, to those who take these decisions, so that we have now before us the result of our pressure.

I really want to know now the extent of the thanks that I owe to the noble Baroness the Minister, because I am a little doubtful. I wish therefore to put a few simple questions expressed in my own simple way. We have to examine matters from the time when the scheme was introduced in 1978. For instance, how many recipients have there been since the scheme was introduced? How many have therefore received a £10,000 award? I had intended to go on to ask how much the Government have paid out, but my simple arithmetic should enable me to work that out.

We expected, at the time that I introduced the Bill and the scheme, that it would be something of the order, at that stage, of between 600 and 800 people. I have to say that at the time that we were introducing the scheme I was not allowed to use the word "interim". That is because "interim" always implies that there is going to be something to follow. The Pearson Commission report had not been considered in detail and therefore I was not empowered to say, although I wanted to say, that this was an interim payment that would be followed by a system of compensation such as that referred to by the noble Lord, Lord Campbell of Alloway.

My first question, as I say, is to ask how many recipients there have been. It would be interesting to know how many applications have been rejected. That would enable us to see roughly what was the proportion. But the first major question that I wish to put is whether the measure is to be backdated. It would appear from the wording as though it were not to be. If that was to be the case, it would be very unfair. Here we have a relatively small number of families responsible for a child, or even a young adult responsible for himself. After all, it was possible to claim right back to the beginning of the National Health Service—a considerable period of time. Those who received an award three, four or five years ago will not have had any of the benefit of the increase unless the noble Baroness is able to say that there will be some element of backdating. I am certain that there should be.

This leads me to my second question, which is to ask what is roughly the estimate of the Government of the number of people who will benefit from the extra payment. The number estimated to apply each year is quite small. The number of people who have been vaccine-damaged and whose disability is to the tune of 80 per cent. cannot be very large. So no doubt the Minister, with appropriate assistance, will be able to say roughly what is the number over the last two or three years. There was of course a rush when the scheme first came about. We have now reached a stage at which we can estimate roughly how many people each year are applying. If there is no back-dating, we are simply dealing with the number who are vaccine-damaged to the extent of 80 per cent. per year. That would enable the Government to estimate the cost to them of this order. In fact, as my last question was the same as the first question or the major question which was put to the Government by the noble Lord, Lord Campbell of Alloway, I hope that the Minister will reply to it.

We cannot go on for too many years without a proper system of compensation such as was recommended by the Pearson Commission. As I understand it, the Pearson Commission—and my noble friend Lord Allen of Abbeydale will be able to correct me if I am wrong, because he was a member of it—sat for five years. I remember that at the time, because I was concerned about vaccine-damaged children, I had what could be described as secret meetings with the noble Lord who chaired the commission to find out what was going to happen, what they were going to say about vaccine damage, and also when the report was due to come out, because it was taking so long. I was extremely anxious that we should get at least an element of extra support to those families who have suffered so much. On the last occasion the noble Earl, Lord Caithness, argued that the policy was simply for the protection of the individual. I argued—and I certainly argued at the time when the legislation was introduced and I carried it through another place—that vaccination is public police. It has always been said that there are certain circumstances in which a doctor will advise that vaccination should not take place. For example, he may advise someone not to have a vaccination if that person has signs of 'flu, and so on. However, normally it would be wise to be vaccinated.

The batch of questions which I have asked all hang together. I do not feel that I should necessarily have given notice of them, because most of them are simple, factual questions, the answers to which no doubt the department has readily at its fingertips.

Lord Campbell of Alloway

My Lords, will the noble Lord accept my apologies for having spoken ahead of the Official Opposition? I intended no discourtesy.

Lord Ennals

My Lords, if there were anything for which to apologise I would of course accept the noble Lord's apology. However, I do not think that there is anything for which to apologise. I said right at the beginning that I was pleased that the noble Lord had spoken before me, because he dealt very adequately with an important issue which I had planned to raise; but I would probably have done so inadequately, bearing in mind the noble Lord's legal background and knowledge which I do not possess.

Lord Allen of Abbeydale

My Lords, as some reference has been made to me perhaps I may say a few words. It is slightly strange that we should be discussing this order made under powers which are not currently available to us. However, far be it from me to complain about the speed with which the order has been drawn up and presented.

I welcome the opportunity of thanking the Government for the concession which they have made and for the expedition with which the law was amended. It has been pointed out that the House of Lords can claim credit for persuading the Government that there was a case for change—a fact which readers of the recent articles in the Sunday Times and listeners to the BBC programmes may have found rather hard to identify. While I welcome the concession, I hope that the Government will not think that this is the end of the story. There are other things wrong with the 1979 Act—if it survives.

Although this is not the occasion for developing the argument for a more substantial change in the law in the direction of making the appropriate public authority strictly liable in tort without proof of fault, nevertheless it is only right to put the Government on notice that, at a suitable opportunity, I hope to return to this major theme. Who knows?—perhaps on that occasion we may even be told why it is that, in the interests of the community, it is possible to hand out payments to victims of crime comparable with those which are awarded by the courts, but not to do anything remotely similar for those who suffer serious damage in consequence of vaccination, also carried out in the interests of the community, as the noble Lord, Lord Ennals, has suggested, notwithstanding the points to the contrary which Government spokesmen have made in the various debates which we have had on this topic.

However, I return to the draft order. I suppose I was in Government circles too long not to appreciate the reasons the powers have not been made retrospective, although I regret it. I am bound to say that the amendment as drafted in Section 23 of the Social Security Act—if, indeed, we have the right words—seems to be unnecessarily mean in relating the award to the time of the claim and not to the date of payment. However, I understood the noble Baroness to say that, notwithstanding that legal provision, there were to be ex gratia payments in respect of applications made after the date of the announcement in this House. I may not have understood the Minister correctly and therefore perhaps the noble Baroness will be able to tell us again just what concessions have been made in this direction.

As for the rest, I await with great interest the replies to the various questions which have been posed, particularly that posed by the noble Lord, Lord Campbell of Alloway, in relation to the products liability agreement which we were discussing in another context here yesterday and on which we are hoping to hear more from the Government before we go away for the summer break. Apart from that, there can be no doubt that we should approve the order.

Baroness Trumpington

My Lords, I am grateful to noble Lords who have spoken on this important matter. I am glad to say that the answer to the first point raised by my noble friend Lord Campbell of Alloway is a simple Yes; the amendment does what my noble friend requires. As regards the first point, of which my noble friend was good enough to give me notice, my answer is, "No, my Lords". My noble and learned friend the Lord Chancellor in his reply to a debate on compensation for personal injuries, initiated by the noble Lord, Lord Allen of Abbeydale, on 8th May this year, made it quite clear that the Government do not accept the recommendations of the report of the Pearson Commission on this matter. I do not think that I could usefully add to what my noble and learned friend said on that occasion.

As noble Lords will be aware, we have just started the biggest-ever survey into the needs of disabled people and it is sensible to await the outcome of that survey before considering further arrangements for compensation for this or any other group of disabled people. In the meantime, this increase represents significant extra help for this particular group of people, the vast majority of whom are likely to qualify for severe disablement allowance when they reach the age of 16 years.

In answer to my noble friend's second question, I should first like to put the matter in perspective. The seven vaccine damage tribunals have between them heard some 1,360 cases since the scheme began and there has been very little criticism. What criticism there has been as regards the three cases which have been subject to judicial review has, I understand, been concerned with the failure to give adequate reasons for a decision. The decision itself is of course a medical one.

As noble Lords may be aware, the 1983 Act—the Health and Social Services and Social Security Adjudications Act—set up a new system of adjudication with the prime aim of increasing the expertise of adjudicating bodies. The Act established that the offices of president of social security appeals tribunals and medical tribunals, including those for vaccine damage, are part of this system. I am sure that the president, His Honour Judge Byrt, will have noted what criticism has been made and will have noted the remarks of my noble friend Lord Campbell of Alloway.

With regard to the third question my noble friend asked, I am pleased to be able to say that the directive on the approximation and administrative provisions of all member states concerning liability for defective products was adopted yesterday evening by the Council of Ministers in the EEC. The directive, which must be implemented within three years, covers all products, including pharmaceuticals, and will make producers throughout the Community strictly liable for damage caused by defective products that they put into circulation.

I should like to thank the noble Lord, Lord Ennals, for his kind remarks addressed to my noble friend the Leader of the House. The noble Lord asked me some lovely short questions. First, the number of recipients at £ 10,000, and the answer is 800. I have written down his second question as, "How many rejected applicants?". I can tell him that the total number of applicants, including those rejected is 3,096 up to April 1985.

Thirdly, the noble Lord asked whether it was going to be retrospective. My answer to that is, No. That answer also includes the noble Lord, Lord Allen of Abbeydale. We have accepted that the people who claim now should have a revalued sum in the light of the passage of time since the Act was first introduced in 1979. However, those who claimed earlier did so on the basis of the Act as it was, and £10,000 was the sum then. Most of these people have already had their payments. It would be unfair to pay the increased amount to those who claimed some time ago but whose claims have not yet been settled.

The fourth question asked by the noble Lord, Lord Ennals, was approximately how many people will benefit each year. The answer is that mercifully the number of children found on the balance of probabilities to have been severely disabled as a result of vaccination is not large. The numbers are difficult to estimate, but we would expect to make about 20 to 25 payments in a full year, some of which will be from earlier claims and they will continue to receive the £10,000 payment. The cost will be about an extra £120,000 a year. I am grateful to those who have taken part in this brief debate. I beg to move.

On Question, Motion agreed to.