Justice 2 Committee, 24 Oct 2001

Meeting date: Wednesday, October 24, 2001

Official Report 226KB pdf

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Petition

Asbestos (PE336)

I welcome Duncan McNeil MSP, who has come along for item 2, which concerns petition PE336.

The petition is from Frank Maguire on behalf of Clydeside Action on Asbestos and relates to civil justice for asbestos victims. As the committee membership has changed since we first considered the petition, I will establish the key points again so that new members can consider their positions. The clerk has prepared an extensive note—paper J2/01/27/1—to help to guide members on the key issues.

It might be helpful if I summarise the main issues. Some urgency surrounds the cases that are waiting for court hearings because claimants are literally dying. The petitioner has informed us that one of the patients that he has been representing has died while waiting for his court case to be heard. The petition says that the issues of disagreement between the two parties are not identified at an early enough stage. It also points out that, as a result of the number of delays in the cases, there is not the number of jury trials that there should be. The written pleadings in the system seem to count against the pursuer because the defender need use only the skeletal defence of denying the basic facts. In one case that has been highlighted, a company denied that it had been named as the company in the case.

We have corresponded with the Lord Justice Clerk. Lord Coulsfield is preparing a report which, it is claimed, will address some of those issues. We have not had a specific reply to our query; we have received only a copy of a letter from the Minister for Justice. I feel that that is inadequate because it leaves the committee unsure about precisely which recommendations will be implemented and which will not. Whatever else, the committee is owed a specific explanation of what the report will recommend.

That is an important point. When the committee discussed the petition on 26 June, we said that we would continue our consideration of it when we had received further information from the Lord President. I am not sure whether we have received that, but what we have is a written copy of what we were told on 26 June. We hoped to receive an indication of what was likely to come out of the report and what was likely to be implemented. Without some indication of what is likely to be implemented, it is difficult for the committee to decide whether the matter is being dealt with appropriately.

I congratulate the petitioners on the energy that they have put into pursuing the petition. They took the trouble to brief Bill Aitken and me, who are new to the committee, and I believe that they have also spoken to Margaret Ewing. Having read the papers, I believe that the case is broadly well made and that we should respond to it. In the absence of a related item in the legislative programme and given the concerns about communication between the committee and the Lord President, we should consider inviting the Lord President to attend the committee to allow us to take evidence from him on the subject.

I agree with Scott Barrie and Stewart Stevenson. The response that we received is not clear about what might be implemented. The committee cannot therefore be sure whether the requests in the petition have been answered.

For that reason, we must pursue the matter. We are all concerned by the delays that the petitioners have faced in the past and we want such delays to be stopped to ensure that cases are dealt with as quickly and efficiently as possible. However, we do not have the information that would enable us to say that that will happen, even after the Lord President's working party has reported. If the matter would be advanced by having the Lord President give evidence to the committee, that would be welcome. However, it is for the committee to decide how to take the petition forward.

As somebody who has for some time been involved with Clydeside Action on Asbestos—along with other colleagues—I am relieved that committee members are saying that we need to pursue the matter. As individuals, we have tried to find out what the Coulsfield report actually means. We welcomed the report's warm words and we wanted to believe that the issue was finally being taken seriously. However, when we asked what proposals had been accepted, what impact those proposals would have on the problem, what outcomes could be expected to improve the situation, what recommendations had been rejected and why those recommendations were rejected, we did not get any answers. If the committee agrees this morning to pursue the matter, that will assist those of us who have been trying individually to get answers. I hope that the committee decides to take that action.

There is universal sympathy for the petition, but at issue is how we should proceed with it. I accept that there will be a temporary hiatus, because at the moment we do not have a Lord President and Lord Justice General. Nevertheless, the unanimous view of the committee is that we should pursue the matter with the Lord President as quickly as possible. I suggest that, when we question the Lord President, we concentrate on the terms of Lord Coulsfield's report. It is not clear what action has already been taken on the basis of that report and what action is proposed. There is also some uncertainty about the effectiveness of the implementation of a number of Lord Coulsfield's recommendations. At the moment we are confronted with a totally unacceptable situation and a genuine injustice is being done to the petitioners.

It is important that the committee takes action on the petition. I have been involved with cases of asbestos poisoning since 1974 and have a substantial file on the matter. The committee should not provide the petitioners with tea and sympathy and send them away saying that it has considered the matter, but that there is nothing that it can do. This morning The Herald has a story entitled "Damning verdict on Scottish judges". According to that story, in surveys seven out of 10 Scots say that judges are out of touch. Cases of asbestos poisoning provide Scottish judges with an opportunity to show that they are in touch with Scottish society. That is a crucial factor.

I endorse the idea that we should pursue the matter with the Lord President's office. However, I recommend to the committee that that should be only a first step. Depending on what the Lord President and his office say in response to the committee, we should consider further steps to remedy the situation, if necessary. The current situation cannot continue. As the convener said, people are dying while we try to deal with the problem. The Scottish Parliament has high expectations of the legal system and this is an area in which we could take a distinctive lead.

I would like to add a couple of points. I refer members to Frank Maguire's letter of 20 September. He rightly points out that

"The Lord President and the Deputy Minister for Justice have failed to address"

the issue of written pleadings. That is one of the key parts of the petition. In common with most of the committee, I have a basic understanding of the issue, but I now understand that pleadings are among of the main reasons for delays. However, none of the letters that have been put before us has addressed that point, which seems to be a glaring and obvious omission.

A number of suggestions have been made about the way forward. It is clear that committee members wish to progress the matter. We must now set out in a manner that is crystal clear the steps that we wish to take.

I referred to the point in Mr Maguire's letter that the convener highlighted. The committee seems to be of one mind on how to progress the matter. I agree that we need to take further evidence from the Lord President. However, to expedite matters, perhaps we should appoint a reporter, as we have done in the past?

That suggestion follows the point that was made by Margaret Ewing and would allow detailed work to be done. The reporter could give the committee concrete recommendations on how we should progress the matter. Rather than only taking evidence from the Lord President and deciding after that what to do, we could have somebody doing detailed work in tandem with that. We might otherwise seem to be stopping and starting—something that might have seemed to be the case since June.

Bill Aitken referred to the fact that there is not, at present, a Lord President for us to call before the committee. Do we know when that will change?

No, but we understand that the appointment will be made soon. If that does not happen, we could take evidence from the Lord Justice Clerk. However, if we decide to hear evidence from the Lord President, I do not expect a problem, because when time is found for the meeting following my writing to make the request, an appointment should have been made.

Scott Barrie made a point about the appointment of a reporter. Given the committee's work load, it might be useful to do that. It would push things on a bit. We need to iron out the outstanding issues. Until now, we have not spoken to anybody; we have dealt only with correspondence. It is also important that we to reply to Jim Wallace's correspondence, because that might establish exactly what the recommendations are and whether proposals are to be implemented. To do so would allow us to make preparations to call witnesses.

If we call the Lord President at some stage, I suggest that we also call the petitioner. Are we agreed?

Members indicated agreement.

Do members feel that it would be useful to appoint a reporter?

I can see merit in the idea, but in the interests of getting the matter moving quickly, might not it be helpful for the clerk to write a paper that would encapsulate the outstanding issues? That would allow us to move the matter forward more quickly than we would if a reporter were carrying out individual research.

The note that we have from the clerk sets out clearly the outstanding issues. That work has been done.

I accept that, but what concerns Scott Barrie—as it concerns us all—are issues such as the implementation of some of Lord Coulsfield's recommendations and their timing and effect. To me, those questions scream out for answers. The clerk is in a position to provide them.

I hear what the convener says about the committee's work load. For that reason, among others, and because committee members seem to agree that we should progress the matter as quickly as possible, it would be a good idea to appoint a reporter. My previous experience is that the clerks have fully supported the work of reporters. Therefore, to appoint a reporter could encompass Bill Aitken's suggestion.

What time scale do you envisage for a report from the reporter? It is important that the committee know that.

It is for the committee to decide how quickly it wants a report. I am sure that we all realise that the issue is urgent and that we want to make progress on it quickly.

It is important to identify which proposals are already in the pipeline for implementation and that is not clear from the correspondence. We need to ask why the problems with the written pleadings system have not been addressed. We need to dig a wee bit deeper as a matter of urgency in case something is missing from the correspondence and something is happening about which we do not know.

We can do that through correspondence. The clerks cannot do any more than that until we get more information. They can easily pull all the information together again to show the differences between the issues that the petitioner raises and the recommendations in Lord Coulsfield's report. We will then be able to see where the gap lies and that will allow us to take the matter further.

Our work load affects the point at which we will be able to invite the Lord President and the petitioner to give evidence. We will do our best to try to find a slot for that. It is worth considering meeting some people in between times to pull together more evidence in preparation for the committee's taking oral evidence.

As long as the reporter is able to bring clarity where there is confusion and speed where there is delay, it would be a good idea to appoint one.

I will make a general point. Although the petition is on behalf of Clydeside Action on Asbestos, the problem pervades Scotland. My predecessor asked a question earlier this year that indicated that six people in Banff and Buchan had died as a result of asbestos. The situation will be similar throughout Scotland.

People from elsewhere who are aware that the problem is Scotland-wide will be listening. I congratulate Clydeside Action on Asbestos on taking the lead on the matter, the urgency of which cannot be overstated.

I thank Stewart Stevenson for making that point. It is now on the record.

If, at some stage, we call the petitioner before the committee—which we have agreed to do—we will merely raise the issues and allow the petitioner to reply. However, Stewart Stevenson is absolutely correct: to do a thorough job, we must recognise that the problem goes beyond one geographical area and affects all Scotland.

Do members feel that we should appoint a reporter, or should we delay that until next week?

We should not delay. We need to take action today—or at least decide how to progress.

Are you volunteering?

I am happy to be the reporter if that is what the committee wishes.

Is the committee happy to appoint Mary Mulligan as the reporter?

Members indicated agreement.

I am willing to assist.

That allows Mary Mulligan and Margaret Ewing to consider the available information. If they agree to the committee corresponding further with the Minister for Justice, they will be able to have some meetings and report back to the committee in due course.

If Duncan McNeil, who has come along specially, does not want to say anything further, we will move on. I thank him for attending.