Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-5360, in the name of Cathy Jamieson, that the Parliament agrees to the general principles of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill.
Today's short debate comes after many years of campaigning by those most affected by the dreadful effects of mesothelioma. The changes that the legislation brings are absolutely about justice: justice for the individuals and their relatives, who suffer both the immediate effects and the longer-term consequences of the disease.
I record my sincere thanks to the asbestos groups, Des McNulty MSP, Thompsons Solicitors, the various trade unions, the former Deputy Minister for Justice, Hugh Henry, and all those who worked hard to get us to this point today.
I also thank Pauline McNeill and the Justice 1 Committee for their supportive stage 1 report and for their thorough exploration of the issues with witnesses.
As members will be aware, the Justice 2 Committee in the previous session of Parliament was instrumental in the speeding up of settlement of mesothelioma personal injury claims. Those measures were intended to allow more sufferers to have the chance of receiving and benefiting from damages before death, but they have inadvertently served to compound the predicament that arises for mesothelioma sufferers.
We know that mesothelioma is a dreadful disease. It is a rare form of cancer that attacks the inner lining of the internal organs. It is almost always caused by exposure to asbestos and it takes, on average, 20 years to develop. Sufferers often die within just a few months of diagnosis. There is no known cure and victims spend their final months in considerable pain and suffering.
Under the Damages (Scotland) Act 1976, the immediate family of an injured person is prevented from making a claim for their own grief and suffering if the mesothelioma sufferer has already settled their own claim in full prior to death. That presents mesothelioma sufferers, who face certain but not immediate death, with an agonising dilemma: either they pursue their own damages claim at what is already a difficult time for them, or they take the decision not to pursue the claim before they die so that their relatives can claim.
The reality is that around 80 per cent of sufferers choose not to pursue their own claims so that they do not deprive their families of the substantial additional sums that they can claim. That stark choice means that they miss out on any practical support or comforts that compensation might provide before they die. That is an intolerable additional worry for families at a particularly difficult and distressing time.
The situation is unjust, unacceptable and must end. That is why the Executive added the bill to our existing legislative programme. Our ability to get the bill introduced into Parliament 14 weeks after our announcement that we would do so was helped by the very significant amount of work that had already been done by Des McNulty MSP and by the information on compensation that had been provided by Thompsons.
The bill's purpose is straightforward: to address urgently, and exclusively, a problem that is encountered by mesothelioma sufferers. It will allow the immediate family of someone who has suffered from the disease to claim damages for their grief and suffering irrespective of whether the deceased has already recovered full damages or obtained a settlement. Sufferers of this horrible disease need no longer feel prevented from pursuing their own claims.
We know that, sadly, more sufferers will be identified: there may, by 2013, be as many as 2,400 deaths per year across the United Kingdom. Sufferers know their likely life expectancy and that their disease is caused by exposure to asbestos. Under the so-called Fairchild exception, they do not need to meet the normal test of causation in civil actions, so the question how to handle their compensation claim arises immediately they are diagnosed with mesothelioma.
There was unanimity among those who gave oral evidence to the Justice 2 Committee that in the light of the unique nature of mesothelioma and the dilemma sufferers face in relation to damages claims, the bill should be confined to that disease.
It is important to state that the purpose of the bill is not to right any perceived wrong in the long-held principle that relatives' rights are extinguished if the deceased settles their claim in full prior to death. The need for the bill has, however, highlighted that there are areas of the law of damages that should be reviewed. We have therefore asked the Scottish Law Commission to undertake a review of the law of personal injury damages, taking into account underlying practices and procedures. That has been welcomed by the Justice 1 Committee.
The review will consider the position of other personal injury victims and the continuing appropriateness of the exclusion of relatives' rights in the 1976 act. The Scottish Law Commission intends to report in 2008.
The Justice 1 Committee considers that there might be benefit in initiating a single action in relation to claims for the mesothelioma sufferer and their immediate family. I accept the committee's recommendation that we explore that with the Court of Session, the insurance industry and solicitors. The Executive has already been in contact with the relevant stakeholders to seek their comments on whether raising a single action in these cases is feasible and would be beneficial to all parties.
I am also grateful to the committee for raising the issue of retrospection. I hope that members will agree that we have moved promptly and positively.
The minister will be aware that Greenock and Inverclyde, like other areas in Scotland, has a large number of sufferers of asbestos-related disease and that, despite their illnesses, they have fought for justice. I bring a message from those victims—some of whom are here today from Clydebank—that they very much appreciate the gains that they have made and the support that they have received from ministers and all parties in the Parliament. The progress that the Scottish Parliament has made on this issue has made big changes to their lives.
While there are colleagues from Clydebank here today, many victims cannot travel. Will the minister assure me that when she or another minister next visits my constituency, they will take time out to meet the victims who cannot be here today but appreciate the work that the Scottish Parliament has done, listening to their experiences and hopes for the future?
I thank Duncan McNeil for his comments and for reminding us of the people who have fought for justice on this issue for so long. I have had the opportunity to meet people from a number of the various action groups, including Clydeside Action on Asbestos, and some of the people from the Inverclyde area to whom Duncan McNeil refers and I have no doubt that many of those who will welcome this legislation will still want the opportunity to make representations to me as a minister or to some of my colleagues. I assure Duncan McNeil that I will work with him if there are particular ways that we can make that happen.
I particularly want to refer to the announcement that Johann Lamont made on 13 December: that the legislation will apply to cases raised on or after 20 December 2006. That announcement was warmly and widely welcomed, and we will lodge an amendment to that effect at stage 2. I hope that members will be encouraged to hear that there is already an increase in the number of claims that sufferers are raising in the Court of Session. That means that sufferers from this terrible disease are already benefiting from this exceptional piece of legislation.
The Justice 1 Committee undertook a thorough, focused piece of work to produce its stage 1 report. It dealt with a difficult issue sensitively and made suggestions on which we have already been able to act. Today, I have given a commitment to act on further suggestions. I hope that today all members will support a short but vital piece of legislation that will bring real benefit to mesothelioma sufferers and their families.
I move,
That the Parliament agrees to the general principles of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill.
I join what I am sure will be a consensual debate, with all members pointing in the same direction, by saying that we support without reservation the bill that is before the Parliament today. We welcome the fact that it has been possible to get to this position.
Before I move on, I would like to add something to what the minister said. The Justice 1 Committee was told that there is no known cause of mesothelioma other than exposure to asbestos. It is important to eliminate even a scintilla of doubt about whether there can be other causes. What we are doing, which is focused on mesothelioma alone, to the exclusion of all other diseases, is founded on the absolute certainty of the causal link between mesothelioma, in either of its two variants, and exposure to asbestos.
There is a saying that is apt in this context: success never wants a father, but failure remains a bastard all its days. I apologise for my language, Presiding Officer. The bill has, quite legitimately, many fathers and mothers. That is very welcome, because civic and political Scotland has joined with the legal profession to promote the legislation that we are debating today.
Is mesothelioma a big problem? The "British Cancer Journal" suggests that there will be 90,000 deaths from the disease between 1968 and 2050, and that two thirds of them will take place during this century. I am sure that that is a United Kingdom figure. The projections are well founded, because they are backed up by a considerable amount of epidemiological research. Mesothelioma will affect a large number of people, admittedly over quite a long period of time.
The problem is concentrated in areas where there was shipbuilding, but it also affects other areas. I want to talk briefly about one of the mothers of the bill, who can no longer speak on behalf of victims. I refer to Margaret Ewing, who on behalf of those of her military constituents who had been exposed to asbestos was tireless in raising the issue and lodging parliamentary questions about it. I do not single her out above anyone else, except for the narrow and particular reason that she is no longer here to speak up on people's behalf. We all regret that.
The case of Margaret Ewing illustrates that people of all parties, rather than just one party, have been involved with the issue. In his Justice 2 Committee incarnation and otherwise, the Conservative member Bill Aitken has been equally closely involved with it, as have the many Labour members who represent a large number of the people who suffer from the disease, and their families. We must not forget sufferers who were in the military, whose legal position is slightly different because of concerns about whom they might sue and Crown indemnity. So far, there has been no sign that those issues will create difficulties, but I hope that my making the point will ensure that it is noted elsewhere.
The Parliament, through its committees, has touched on this subject before. The Justice 2 Committee in the previous Parliament, under the convenership of the present convener of the Justice 1 Committee, Pauline McNeill, was very active in promoting the Coulsfield rules to secure further reform of the operation of a particular part of the court system.
The committee had the best intentions and its work definitely had some value in giving some people a degree of certainty and some ability to bring forward the date of their engagement with the legal system but, with all the complexities of law, the reform also had the unintended side-effect of creating more anguish, as those in the terminal stage of their illness were faced with the choice of suing while they were still alive and feeling settled in their own mind and knowing that, in doing so, they were disadvantaging their relatives, who could sue only after the sufferer's death. This simple bill removes that choice. I certainly commend the size of the bill to the Executive, to my colleagues who might introduce bills in future and to everyone else in government.
On retrospection, I welcome the speedy, effective response to the agreement that the committee was able to negotiate between the witnesses representing various points of view. Initially, the Association of British Insurers was—not unreasonably—somewhat sceptical about the proposals and expressed some fear that mesothelioma might simply be a stalking horse for other conditions. The committee—and, I am sure, the minister—played a role in talking through these issues with the association, whose fears were calmed and who, in the end, said, "As long as we have certainty about what is happening, the date when it happens can be brought forward." I might have put the date back a bit more, but that does not matter; we all agreed that the provisions should apply retrospectively to cases raised on or after 20 December 2006. I am sure that Johann Lamont fulfilled one of her more pleasant parliamentary tasks when, during her evidence to the committee, she was able to tell us that the Executive had agreed to the proposal. However, she is nae off the hook, because we will scrutinise the amendment very carefully.
I am absolutely sure that there is good faith on the Government benches and that after we have progressed with the bill without any dissent, in a unanimous, cross-party manner—as we undoubtedly will—the people in the public gallery, their friends and relatives and those who come after will be grateful for this excellent piece of parliamentary business that does considerable credit to everyone who has been involved in it.
This bill seeks to rectify the unintended consequences for mesothelioma sufferers and their families of, first, section 1(2) of the Damages (Scotland) Act 1976 and section 1(4) of the 1976 act as amended by the Damages (Scotland) Act 1993 and, secondly, of the Coulsfield recommendations on accelerated court procedure for personal injury cases in the Court of Session.
Sections 1(2) and 1(4) of the 1976 act provide for additional damages to be paid to a sufferer's immediate family only if the sufferer does not settle their claim in full prior to their death. As a result of the Coulsfield recommendations implemented in April 2003, personal injury claims in the Court of Session are now being concluded within a shortened period of 12 to 13 months. Because mesothelioma sufferers survive an average of 14 months, by and large they live long enough to settle their claims. In such cases, section 1(2) of the 1976 act comes into force.
In practical terms, what this all means is that mesothelioma sufferers have opted to forgo their claim so that they safeguard their relatives' ability and right to claim for loss of society and guidance and the grief, sorrow and distress sustained as a result of their death. It is clear that the current legislation puts all parties in an invidious position and has merely served to worsen an already distressing and harrowing situation.
I have frequently and, I believe, justifiably criticised the Executive for legislating to solve a problem when it is unnecessary and often counterproductive to do so, either because a remedy already exists under common law or because the problem can be solved by approaching it in another way—the Scottish Commissioner for Human Rights Bill and the Emergency Workers (Scotland) Bill are cases in point—but I have no doubt that the bill that we are considering today is not only the best, but the only way of resolving a dilemma that, frankly, no family should have to face.
The bill addresses the effect of the current law through provisions that will ensure that the sufferer will no longer have to decide whether to forfeit the claim to which they are entitled, in recognition of their asbestos-related condition, in order to protect their family's financial security. The committee is particularly grateful to Phyllis Craig of Clydeside Action on Asbestos for her poignant and comprehensive explanation of the full extent of the dilemma that sufferers face.
It was decided not to extend the bill's provisions to other conditions, but to confine them to sufferers of mesothelioma, which is a unique condition. The argument for that was advanced convincingly by Frank Maguire, whose firm of solicitors handles 500 mesothelioma cases. He explained that asbestos-related lung cancer is not an analogous condition because it is not possible to say that it has inevitably been caused by asbestos—there are competing causes such as smoking, as well as various very possibly unknown factors, which defenders would seek to blame.
In mesothelioma cases, it is clear from the symptoms that the illness is caused by exposure to asbestos. Defenders accept that a causal link has been established. In those circumstances, the committee was persuaded that it is appropriate to confine the bill's provisions to mesothelioma sufferers alone, although it welcomes the Executive's decision to ask the Scottish Law Commission to review the law of damages in general.
The committee went on to consider the possibility of making the provisions retrospective, so that they cover cases that are settled before the bill is enacted—which will be the seventh day after it receives royal assent—to address the deferral of hearings until after the bill's implementation to ensure that mesothelioma sufferers' families benefit from its provisions.
Representatives of the insurance industry pointed out that although, in general, retrospection is problematic, they were not unduly concerned by what the bill proposed. They volunteered that, after the Barker v Corus case, they had agreed with the Department for Work and Pensions that all claims that followed that judgment but which preceded the passing of the Compensation Act 2006 would be treated under the act. A precedent already existed and the certainty that the insurers sought to achieve had not been compromised. The committee therefore welcomed the Deputy Minister for Justice's statement that the Executive intended to amend the bill at stage 2 to allow it to apply to cases raised on or after 20 December 2006.
The bill is good. It is only fit and proper that I pay tribute to the minister, previous justice committees, the campaigners from Clydeside Action on Asbestos, Frank Maguire and, above all, Des McNulty, without whose work the Scottish Parliament would not be in a position to approve the bill's general principles. It is to be hoped that the knowledge that the bill will mean that their relatives will be adequately provided for after their deaths will give mesothelioma sufferers the peace of mind they seek.
I am very pleased to speak in the stage 1 debate on the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, which is certainly the shortest bill that I have had to deal with in my time as a member of the Justice 1 Committee—or as a member of the Justice 2 Committee. Indeed, the Law Society of Scotland briefing on the bill was the shortest I have ever seen from the society.
The shortness of the bill in no way detracts from the fact that, for a small group of people who have suffered greatly as a result of exposure to asbestos and for their families, it will be one of the most important pieces of legislation that the Parliament passes.
I pay tribute to the members who campaigned on the issue, particularly Des McNulty. It is a shame that he will not speak in the debate because he is a minister—I am sure that he wanted to speak. In May 2006, he produced a proposal for a member's bill that would address the problem and the Executive quickly took up the matter on his behalf, which was sensible. Way back in 2000, Duncan McNeil, who is not in the chamber but will probably be back, secured a members' business debate on the issue.
The most important part of my job as a member of the Scottish Parliament is representing my constituents and taking up their causes. The bill is an example of what happens when MSPs campaign hard for their constituents and the Scottish Executive listens to the campaign and introduces legislation that addresses the problem.
We have heard about the problems that arise when claims are made under existing legislation. The bill will change all that, so that not only will mesothelioma victims be able to make a claim before their death but their relatives will be able to do so after the victim has died. The committee heard that the Scottish Law Commission is considering whether only one claim, rather than two claims, could be made. The minister mentioned that.
During stage 1, I was pleased that the insurance companies acknowledged that there was a problem and strongly agreed that it needed to be solved. They thought that the bill offered the right way forward for the people who have suffered for so long. Other members talked about the numbers; there is a big problem.
The committee spent a good deal of time considering the need for retrospective legislation. Although the committee acknowledged that such an approach is almost always resisted and would not often be welcome, when we heard the evidence we thought that there should be retrospection in this instance. I am delighted that the minister has agreed to lodge an amendment at stage 2 to make the bill's provisions apply to cases that were raised on or after 20 December 2006.
There is no doubt that the bill addresses a small but significant problem. The Executive was right to introduce a bill that makes provision on a single matter and I am pleased that sufferers of mesothelioma and their relatives will get decent compensation, as is right and proper. I heartily support the general principles of the bill.
As members have said, we are debating one of the shortest bills on record. However, the bill has probably secured the greatest consensus, not just across the parties and among members of the Justice 1 Committee, but among witnesses who came to give evidence. Although it had been suggested that there would be opposition to the bill, by the time witnesses came to give evidence any opposition had disappeared.
During my time as a member of the Justice 2 Committee in the first session of Parliament, and as a member of the Justice 1 Committee, I have probably considered more legislation than most members, but I have never witnessed such a level of consensus on proposed legislation. As Mike Pringle and others have said, there was probably never a greater need for legislation than for the bill that we are considering.
I knew that by the time I got to my feet in this debate everything would have been said—I have been throwing away bits of my speech as the debate has continued. Marlyn Glen and Mary Mulligan, who have yet to speak, will probably find even less to say that has not already been said.
However, we should repeat some of the important messages. In Duncan McNeil's intervention, we heard about diseases that are associated with industries such as shipbuilding, construction and heavy engineering. It is mostly men who work in those industries, and many have worked all their lives only to discover something that they did not know at the time—that they were contracting a fatal disease. As Stewart Stevenson pointed out, the incidence of mesothelioma is rising, not falling, so we need legislation to deal with that. Projections suggest that the peak will be in 2013—incidence of the disease will certainly get higher before it gets lower.
This has been one of the most shocking and heartbreaking issues that any committee I have been on has had to deal with. Like other members, I want to record my appreciation for the exemplary work of Clydeside Action on Asbestos—which has kept at it and has kept on lobbying Parliament—and for the work of Frank Maguire, who is clearly an expert lawyer in this field. He provided clarity on this complex issue.
Work that has been done in this session of Parliament has demonstrated that committees can do all sorts of things if they want to. I am pleased that Bill Aitken is here; he will vouch for the fact that the collaboration between the committee and the judiciary showed that it is possible, if minds are put together, to do good things. As Stewart Stevenson said, as a result of that work we now have a shortened procedure, although that has brought other difficulties. As we have heard, under section 1 of the Damages (Scotland) Act 1976 the immediate family of an injured person is prevented from claiming damages on the death of that person if the deceased has already settled. We know what the bill is intended to do, and we understand the dilemma that families face. The average life expectancy after diagnosis is 14 months.
The fact that there has been consensus does not mean that we should not test the competency of the bill. I want to emphasise that there being little opposition to it did not stop the Justice 1 Committee from testing the bill.
We started with retrospection—it was the obvious place to start. We know the difficulties and pitfalls of retrospection, but let us not underestimate what I imagine might—I do not know—have been the behind-the-scenes discussions among ministers and their officials that brought about the announcement, before we have reached stage 2, that we will not have to argue over retrospection. I am grateful to the ministers for having made that announcement now so that we can amend the bill at stage 2. I will rely on their legal judgment that the retrospection in the bill will not be challenged. I am confident that it will not be.
I whole-heartedly welcome what Cathy Jamieson said about the single action. That matter was raised with the committee. If a single action will be enough, without Parliament interfering unnecessarily with the rules of court, that will be very welcome.
Does Pauline McNeill agree that it is vital, if a single action leads to payments being made before the action is concluded, that the payments are secure and can under no circumstances be reclaimed? That should be the proper test of an action that continues both before and after death.
I have no difficulty in agreeing with that. The purpose of the single action would be to ensure that families would not have to pay more legal fees than necessary and would not have to attend more court sessions than necessary. Once the initial action was established, people would obviously have to go back to court at some point to argue for the damages claim that will be allowed under the bill. We have to make things easier for families in such circumstances.
The Justice 1 committee tested the idea that mesothelioma is a unique disease. We had to be sure that legislation that would apply to mesothelioma would not also apply to situations that we had not envisaged. After taking evidence, the committee was satisfied that, given the circumstances and the nature of the disease, we could legislate and be sure about what we were doing.
The committee considers that the bill offers the best way to remove the dilemma of mesothelioma sufferers. We say that because at one time, some of the evidence suggested that there might be other less formal ways of allowing victims to have interim payments. We tested that idea deeply and are satisfied that the bill is the best way forward.
We tempted fate at the outset by suggesting that the bill would be straightforward—we have been there before—but having concluded stage 1, I am pretty sure that it is straightforward. We know roughly what we intend to do at stage 2 and we look forward to that.
Again, I thank the former Deputy Minister for Justice, Hugh Henry, and I thank Johann Lamont and the Minister for Justice, Cathy Jamieson, for what she said today. The bill has unanimous support and I look forward to amending it at stage 2.
As others have rightly pointed out, the need to legislate was brought about by the dilemma facing sufferers of mesothelioma and their families. The unstinting work of Clydeside Action on Asbestos and others to bring justice to victims must be applauded and commended, as everyone else has said. I am also glad that interested parties' concerns about the bill have been resolved, which has cleared the way for unanimous support for the bill at stage 1.
I further welcome the commitment that was made by the Executive to amend the bill at stage 2 so that it will apply the provisions retrospectively and thus end the uncertainty that sufferers experience. I hope that the Executive's consultation of the Court of Session, the insurance industry and solicitors on the possibility of victims proceeding with one court action rather than two, as Mike Pringle mentioned, will be fruitful. Pursuit of a single action would be in the best interests of all parties and would lead to a more expedient and less harrowing process.
The Public Petitions Committee, of which I am a member, has dealt for several years with petitions on the issue from concerned groups. The evidence that we heard about victims' suffering was truly harrowing, as other members mentioned. I commend those groups on their contributions to the Public Petitions Committee as well as to the Justice 1 Committee. They contributed to the debate and highlighted the need for the bill. There is no doubt that the bill is welcomed by all members from all parties, for which we are grateful.
Although the provisions in the bill are welcomed by everyone, the bill will not put an end to the suffering. We must be ready to face other challenges, about which the Public Petitions Committee has received petitions. One of the great concerns that has been expressed by petitioners is about the need to provide adequate medication for people who suffer from this terrible disease. That is especially necessary when we consider the terrible death that is suffered by the victims.
At present, Alimta is the only drug that is available to treat the condition. It has been available in Scotland since July 2005, based on the advice of the Scottish Medicines Consortium. However, the drug is not freely available in England, where the National Institute for Health and Clinical Excellence—the United Kingdom-wide authority that has responsibility for licensing the drug—rejected its provision through the NHS. The drug is not part of the bill, so it is important that we consider it in that context. An appeal to NICE is currently in progress, but if that appeal fails—NICE has never overturned a ruling—there is, because NICE guidance supersedes that of the SMC, a real danger that mesothelioma sufferers in Scotland will be denied the only treatment that is available to them. We all accept that we should consider that situation.
That concern was put to me by the same people who lobbied for the bill, not just through the Public Petitions Committee, but at meetings and through letters. Those people ask that we consider availability of Alimta as we consider the bill. Although I recognise that the problem does not relate directly to the bill, I urge the Executive to take this opportunity to allay sufferers' fear that the SMC's decision will not be upheld in the event that NICE rejects the provision of Alimta for the treatment of mesothelioma. Many sufferers have voiced concern that enactment of the bill will make it easier to withdraw free provision of the drug—which has been free since 2005—because sufferers will be considered to be able to pay for the treatment out of their own pockets, which would avoid the need for free provision on prescription. Although I support the bill whole-heartedly, as all members do, I would like the Executive to reassure us that the provision of Alimta will remain free in Scotland, regardless of the NICE decision.
I will speak briefly, as somebody with a medical background who is aware of the devastating effects of mesothelioma. I associate myself with Sandra White's concerns about the continued availability of Alimta, although that issue is not strictly pertinent to the bill. I echo the sentiments that the minister and other members expressed in thanking those who have been affected by and campaigned on the issue over the years, especially Des McNulty, whose member's bill on the matter we supported. Thanks are due to Parliament's justice committees which, over the past few years, have scrutinised legislation on the issues that face mesothelioma sufferers and their families. As a result of that consideration and legislation, Parliament has made substantial and positive changes to the prospects that those people face.
In part, the bill is a product of the fact that we have created victims of our success. The effective implementation of the recommendations by Lord Coulsfield on accelerating the timetable for the settlement of all personal injury cases since 2003 has created a dilemma because, for the first time, mesothelioma sufferers have a high chance of receiving damages in their lifetime. Ironically, the justified and welcome increase in the amount of damages that a family can receive to compensate for grief, suffering and emotional distress has also worsened the predicament that sufferers and their families face. As has been mentioned, it was uncovered in evidence to the Justice 1 Committee that the situation has led to about 80 per cent of sufferers not pursuing their claims in order to protect their loved ones. The bill will remove that anomaly for mesothelioma sufferers and their families and will allow them to make choices about compensation together, in the sufferers' lifetime, without risking the families' access to further compensation in the future.
I commend the ministers' decision, following the committee's recommendation, to allow the bill to apply retrospectively. The Executive's proposal to amend the bill at stage 2 to include cases that have been brought since December 2006 is a wise and conciliatory move. The committee's report underlines the consensus among all the groups that are involved that the bill is the most appropriate means of resolving some of the issues that mesothelioma sufferers and their families face. The bill will make their lives more comfortable, which is why the Scottish Greens support it whole-heartedly.
This morning, I met a school group from Low Port primary school in my constituency. I am sure that members will agree that one of the more frequently asked questions by such groups is, "Why did you want to be an MSP?" Even after nearly eight years as a member, I still say that it is because I wanted to make life better for people. I realise that that can sound trite and insincere, but I believe that all members want the same thing, although we are divided on how to achieve the aim and on the priorities.
Bills such as the one that we are considering allow us to demonstrate how we can improve lives. They show the benefits of having a Scottish Parliament that arise from the speed and efficiency with which we can respond to situations. Few members of the media are in the public gallery today—although I am sure that they are in another place listening to us intently—and I know that the bill will not be the top item in any news bulletin this evening, but it is important to many people throughout Scotland.
Why do we need to pass the bill? As has been said, in the early days of the first session of Parliament, a petition was lodged on asbestos poisoning as part of a strong campaign from the Inverclyde and Clydebank areas that was supported ably by my colleagues Duncan McNeil and Des McNulty.
The petition was referred to the session 1 Justice 2 Committee, and Pauline McNeill and Bill Aitken produced a report on the issue. Another report of the time—the Coulsfield report—said that settlement for damages should be accelerated, but the Justice 2 Committee report went further and recommended special procedures for mesothelioma cases. The reason is that mesothelioma is a particularly aggressive disease: it can take 20 years to develop but, once it is diagnosed, the average life expectancy of a sufferer is 14 months and there is no cure. There was across-the-board support for the Justice 2 Committee's recommendations. However, as we have heard, there was to be an unintended consequence, which is what we are dealing with this afternoon.
Mesothelioma sufferers are entitled to damages for their suffering and premature deaths. However, if they claim for damages in their own lifetimes, they prevent their families from recovering damages. One sufferer who did not pursue his claim spent the last months of his life without the additional support to which he was entitled. Before the settlement of claims was speeded up, that was not an issue because, tragically, the claimant probably died before the claim was settled. Under the reforms, sufferers were faced with an appalling dilemma that no one should have to deal with.
One of the main concerns that I and other committee members had was whether we should extend the bill to sufferers of conditions other than mesothelioma, but the evidence that we received convinced us that the bill should apply to mesothelioma alone. The disease has unique characteristics: it is caused by exposure to asbestos; there is no cure; and, after diagnosis, life expectancy is short. I assure everyone that we have not agreed to restrict the bill to suit any interested party—neither the drafters of the bill nor the insurers, who eventually agreed with us. The groups that represent mesothelioma sufferers also supported the restriction and said that it is important that we not lose the bill's focus.
Executive officials reported, as the minister said today, that the Scottish Law Commission is conducting a more wide-ranging review of the law of damages. I stress that review's importance. Others who seek damages have, at various times, had problems in reaching settlements and I am sure that the committee will support me when I say that such people should benefit from improvements to the system of awarding damages just as mesothelioma sufferers will.
The bill is short but worthy. Members should be assured that the committee scrutinised it as thoroughly as it would a longer or more complicated bill—it would not be the Justice 1 Committee if it did not.
I began by praising Parliament's role, but I also want to praise the Deputy Minister for Justice, Johann Lamont. The committee took evidence on retrospection in recognition of the fact that some sufferers were delaying their cases to see what the committee and Parliament would decide. We managed to convince everyone, including the representatives from the insurance industry, that retrospection to a set date was the right approach. Having kept herself informed of our deliberations, the minister was able to come to the committee and say that the Executive would support retrospection to 20 December 2006. That means that people who are dying can settle their claims now.
The debate has been good. It is important that we ensure that everybody knows the business that Parliament is carrying out. I look forward to reaching stage 3 and concluding the bill's consideration.
I offer my support for the bill. No greater injustice has come before Parliament than the situation of mesothelioma sufferers and their families. Nothing could be worse for people who have worked all their lives in really hard jobs, and who have looked forward to retirement at the end of their working lives, than to be diagnosed with a terminal illness that is related to those hours, weeks, months and years of hard labour. Those people face the prospect of being unable to enjoy their families or see their grandchildren growing up. It is bad enough to be diagnosed with a terminal illness and to face all the difficulties that that poses for a person and their family, such as organising care and dealing with grief and bereavement, without having to contemplate embarking on a legal action and without having to contemplate a terrible unsolvable dilemma. I can only imagine what that must be like.
I have friends and family who have been affected by the disease, which does not bear thinking about. I suppose that that is why I will inject a wee bit of discord into the consensus. The bill is welcome and necessary and I am glad that it has been introduced, but the amounts of damages do not match the suffering and the injustice that people have experienced as a result of their work. Even recently, the sums have been between £20,000 and £28,000 to a widow; from £5,000 to £10,000 to an adult child; and from £3,000 to £10,000 to an elderly parent who loses an adult son. That is really not a lot of money. Even the money for a widow does not match the average annual salary. People are losing 10, 20 or 30 years from their lives and from the time they can contribute to the family income, so those sums are not enough. The bill does not deal with that, but it needs to be considered and the level of damages needs to be increased.
I am glad that the minister will lodge an amendment to introduce retrospection, but will the arbitrary date create problems? I do not imagine that terribly many people are approaching the cut-off date, but is it appropriate to consider amendments that would take the retrospection further back? Is the Justice 1 Committee considering that?
I had not meant to intervene in the debate; I came simply to listen. However, 20 years ago, I produced a BBC documentary in which I reported on mesothelioma. I met many of the people to whom Stewart Stevenson referred, as well as their families. Those people's illness has matured in those 20 years and they now approach the time when they really need the money. Anything that the minister can do to make the retrospection more generous would not be unreasonable.
I can only concur with Margo MacDonald's sentiments. I hope that extension of retrospection can be further explored.
I pay tribute to organisations such as Clydeside Action on Asbestos and Thompsons Solicitors, and to MSPs for pursuing the matter vigorously. If Parliament had not been established and we were relying on Westminster to sort out the situation, we would wait another 10, 20 or 30 years. That is something to congratulate this Parliament on.
An element of me wonders why, oh, why we had to reach this stage when the injustice is obvious and obviously had to be righted. Although I agree with members who expressed concerns about other situations and other conditions, I understand completely why the bill's focus must be on mesothelioma, because of the injustice and the dilemmas with which people have lived. However, I hope that the Executive will consider other conditions in the future and that retrospection will apply to them, too. In summing up, will the deputy minister give a timetable for the review that has been mentioned? When will it start and how long is it expected to take?
We have consensus today, but we must put the bill in a wee bit of perspective. As we know, mesothelioma is concentrated in certain areas. Damages in no way make up for the suffering and hardship and the impact of the disease on families and communities, and in no way does the level of damages make up for having to live with the disease for years and years. I repeat that, even recently, the compensation awards from the courts go nowhere near far enough to make up for that.
We move to the wind-up speeches and I call Mike Pringle. Sorry, Mr Pringle, it is Marlyn Glen. Sorry, Marlyn.
Thank you, Presiding Officer. I was beginning to feel disappointed about not getting the opportunity to speak in support of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill at stage 1.
The bill is an excellent example of joint working between affected groups, the committees and the Executive. The history of the bill, which has been introduced to Parliament in a short period of time, shows how well and how responsibly our system can work in response to a specific and urgent problem. Sometimes—too often, in fact—the good work of our Parliament is not given the recognition it deserves. We should take the opportunity to emphasise that work. I do not apologise if, in speaking late in the debate, I repeat some of the points that have been made already, because they bear repetition.
The Justice 1 Committee evidence sessions on the bill were at times extremely difficult, because of the seriousness of mesothelioma and the tragic and inevitable consequences of contracting it. They were also difficult because of the challenges that people have faced in seeking compensation. However, because of co-operative joint working, we managed to allay the fears of witnesses about the terrible dilemma of choosing the right time to seek compensation. In fact, as we heard in the minister's announcement that there would be a degree of retrospection, from 20 December 2006, we have already improved on the bill as introduced. The witnesses to the Justice 1 Committee were descriptive and moving in their presentations, and throughout the process there was a sense of everyone working together to address the difficulties as far and as soon as possible.
Other members have outlined the course of the disease and the short time people can expect to live between diagnosis and death. A mere 14 months is the expected timescale, but even that can be optimistic. According to the evidence that the Justice 1 Committee received from Ian Babbs of Asbestos Action (Tayside), that extremely short period is what makes the bill so important to sufferers and their families. Asbestos Action (Tayside) is a charity that was set up in Dundee a year ago to ensure that there is a local point of contact for the 20 per cent of sufferers who reside in the east of Scotland. It complements successful west coast groups, such as Clydeside Action on Asbestos, that have been campaigning for more than 20 years. The bill represents a significant step forward in that campaign.
The Tayside group's intention is to give practical support and advice to people with asbestos-related disease and to provide an accessible, local service to respond to queries. I endorse the call on its excellent website for volunteers to ensure the continued availability of the service. It is distressing that three of the members who joined the group at its launch did not survive until its first anniversary—a truly dreadful reminder of the consequences of exposure to asbestos in the workplace in places such as shipyards, including, on the east coast, Rosyth, and Robb Caledon in Dundee. The latest available figures show that, throughout Scotland, 197 cases of mesothelioma were diagnosed in 2003 and there were 161 deaths in 2004. It is with those figures in mind that I support the principles of the bill.
Thank you, Presiding Officer. You caught me out earlier, so I am glad that I had a chance to catch my thoughts before speaking.
Discussions during the passage of the bill and on other occasions have highlighted how other members' constituents have been particularly affected by mesothelioma. No cases have been brought to me by constituents who have suffered from this terrible disease, for which I am thankful.
Stewart Stevenson made the point that the bill addresses one specific illness, because we are not aware of mesothelioma being caused by anything other than asbestos. That is absolutely right, and I take it on board as, I am sure, does the minister. I also agree with Stewart Stevenson's comments about the size of the bill.
Margaret Mitchell made some good points. She read out a list of people whom she complimented on their efforts to introduce the bill—the people from Clydeside and so on. I failed to mention them in my opening speech, so I endorse her comments.
Pauline McNeill said that, by the time she was called to speak in the debate, everything had been said. I have some sympathy with her. Even speaking third in the debate, I thought, "What more is there to say?" Of course, often there is not consensus in debates—there is on the bill—and, as the representatives of political parties, we often make political points. That is why today's debate has been a little difficult—we all agree about everything, which is extremely good. As Pauline McNeill said, this is the smallest bill that has been introduced in the Parliament, and there is absolute agreement on its principles.
Sandra White referred to the fact that medication is not covered by the bill. I confess that the subject is new to me, as in Edinburgh South the issue has not come across my radar. Nevertheless, if it is a problem I hope that, as a result of today's debate and what Sandra White has said, not only the minister but perhaps the Health Committee will pursue the issue. Clearly, the small group of mesothelioma sufferers have suffered enough already and should not be made to suffer further because of a lack of medication.
Mary Mulligan talked about the first question that she was asked by a school group that she met this morning. The two questions that I am always asked first—perhaps it has something to do with my age—are, "How old are you, mister?" and, "How much do you earn?" I agree entirely with Mary Mulligan. As I said in my opening speech, this is an extremely important issue and we are here to represent our constituents before any particular political party.
Carolyn Leckie raised the issue of retrospection and the question whether the cut-off date should be beyond 20 December 2006. The Justice 1 Committee took evidence from Frank Maguire at stage 1, and stated in its report:
"Frank Maguire indicated to the Committee that applying the Bill retrospectively would be welcomed. He informed the Committee that he had 62 cases where mesothelioma sufferers were deferring their hearings until after the implementation of the Bill, so as to benefit from its provisions. He suggested that if the Bill were to apply retrospectively then he would be able to proceed with these cases."
The committee also heard that point in other evidence. The minister may want to comment on the issue in her closing remarks. The committee considered the matter thoroughly, and if it had felt that an earlier date was appropriate it would have gone for it, but 20 December 2006 will include everybody who has not made a claim but who wants to make a claim under the bill.
I welcome the bill and I am delighted that there is consensus among all members on it. I am sure that, as Marlyn Glen said, we want to get to stage 3 as quickly as possible and get the bill into statute so that people can start to benefit from the provisions of this little, but most important, bill.
I should begin by making a declaration of interest in that, by virtue of previous employment, I am a beneficiary of an insurance pension fund. Members will understand that it is my personal inclination to be a drain on that fund for as many years as possible, and it is somewhat ironic that today I will take a decision that might prejudice my future earnings. However, it is the right thing to do.
Life is all about decisions, and sometimes we have to make hard decisions, but surely there could never be a crueller dilemma than that which is currently faced by those who are dying of mesothelioma. We would have failed in our duty had we not reacted as we have done in the past five or six years.
When people ask me why we should legislate uniquely for mesothelioma, I say that we should do so for a number of reasons. The cases are invariably terminal and they are finite in number. Clearly, the numbers will peak at a certain point, but then they will fall away because of the change in industrial processes that came about in the mid-1970s, when the dangers of asbestos became apparent. Eventually, there will not be the volume of cases that we have at the moment.
I think that I am correct in saying that blue and brown asbestos were not made illegal until the late 1980s. People whom I spoke to at the time did not know that they had that one fibre in their lungs that causes mesothelioma. They are now coming to the end of the time in which they might develop the disease.
I am not certain that that is the case. It may be an arguable point, but my clear understanding and professional recollection are that the dangers became apparent in the 1970s.
The point about the claims is that they are immediately apparent and can be identified. The proximate cause of the condition is the asbestos in question. Liability, although not absolute in legal terms, is absolute in practical terms. Although there may be disagreements about quanta from time to time, eventually somebody is going to have to pay up, therefore there is no bar in terms of law or commercial practice on dealing with the cases as we propose in the bill.
The Parliament frequently has to ask itself—although frankly it does not do so nearly enough—whether legislation is necessary or whether an undoubted problem could be dealt with by other means. The minister has heard me wax eloquent on that over the years. However, in this case, the argument is clear: there is no alternative.
Interim payments were not the solution, although they have been possible for many years. There was a lack of confidence on the part of pursuers in going down that route because, in the Scots process, liability had not been confirmed. I find it inconceivable that such liability would not have been confirmed in due course, but it was a hard decision—a gamble—particularly on the part of people who were dying. They could have been left in the position of having to worry in their final days about whether their family would be affected by a recovery from insurers and have to pay back the damages. Understandably, people were reluctant to go down that route.
Some of us worked hard to improve the existing system. Pauline McNeill and I used our possibly doubtful powers of persuasion to persuade the justiciary that it was the way forward, but we must recognise that it was simply not the answer. It was always going to be an interim solution and only part of the overall picture. That being so, the bill is necessary. It reflects well on the Parliament that action has been taken in such an expeditious manner.
Clydeside Action on Asbestos is entitled to claim great credit for what it has done. It made its representations clearly and in a moderate, courteous and persuasive manner. The fact that the bill will pass stage 1 today is in many respects due to the way in which it conducted the process. The group was very persuasive indeed; others could learn a great deal from it.
It is a pleasure to be associated with a bill that will do an awful lot for an awful lot of unfortunate people. Tragically, nothing can be done to improve their health in the long term, but surely passing the bill will be some comfort to them. The bill reflects well on all those who have been involved in the process.
As Bill Aitken and others have said, this has been a consensual debate. That is as it should be. If the debate had not been consensual, it would have been shameful and the victims, their families and the people of Scotland would not have forgiven us. Thankfully, the tone and tenor of the debate were set early on by the Minister for Justice, who made it clear that the matter is about justice. Some things are not about partisanship and narrow party politics, even when an election is looming; they are simply about justice and doing what is right.
When something is manifestly wrong, as it is in the case that we are discussing, those of us who are privileged enough to be in the legislature for the people of Scotland have an obligation to set things right. The bill reflects well on the Parliament and all those involved—ministers past and present, the Justice 1 Committee and others. It also reflects well on the campaigners who have pursued the issue doggedly. Clydeside Action on Asbestos has been mentioned along with other groups, such as Asbestos Action (Tayside), which my colleague Shona Robison knows well. For them, the passage of the bill is simply one further hurdle that they have had to face.
I first came across asbestos and the diseases related to it when, as a young agent, I moved to Glasgow in the early 1980s. Mesothelioma was just beginning to come through. Hindsight is a great thing, and we can look back and wonder why we allowed men, in particular, to work with asbestos in the shipyards, but we also put it in our homes, our schools and our hospitals. We did not understand that problems would arise.
When the chickens came home to roost, those men experienced difficulties and deaths began to occur. At that point, some shameful actions came to light—not by all companies, but by some. A company would close down and a new company would be opened up, and the insurance agents—perhaps understandably, because of the terms of their contracts—would say that their company was not involved. People had to pursue cases with dogged determination, despite innumerable difficulties, some of which came about by accident rather than by design.
With the wisdom of hindsight, we can see the problems with asbestos—be it brown, blue or another colour—but we could not see those problems at the time. That might be understandable, but the actions that some companies took were unforgivable. They knew what they were doing when they went out of their way to frustrate things. In many instances, they dragged out the process to ensure that a legitimate claim by an individual expired with their death. Thankfully, we have changed the process and accelerated the progress of cases through the courts. I have no doubt that there will be other hurdles, however, and it will be the duty of a future Parliament to ensure that those are addressed.
As I said, the minister set the tone of the debate. She was right to say that the matter is about justice. As somebody who was involved in the law for 20 years before I was elected to the Parliament, I know that justice does not always equate with the law. The law can sometimes be an ass. Sometimes, the law is simply the rules and regulations that we, as legislators, have created. When matters go before the courts and the law is interpreted, people sometimes do not fall within the precise criteria in legislation. However, some things are so manifestly unjust that it is our obligation to take steps to ensure that we address them. Thankfully, that is what we are doing today.
The member is saying that justice needs to be done. On that theme, does he agree with the following point, which has not been made today but which is contained in the Justice 1 Committee's report? One of the practical effects of changing the law is that sufferers will have a chance of getting damages in life, while they are suffering, and their families will have a chance of getting damages when they die. That is a significant impact of changing the law.
Absolutely. We have all talked about the Hobson's choice that has had to be made, which is manifestly wrong. We want to strike the right balance, which is the least that we can do for these individuals. They should have the opportunity to claim money to allow them to have a final holiday, perhaps, or to enjoy themselves with their families. When they pass away, their families should also have some recompense for their loss. We are trying to do the very minimum. As Carolyn Leckie said, no matter how high the damages awarded, we can never replace the loss of a loved one. That is a valid point.
I turn to the issue of the numbers involved. I had a chat with Harry Benson when he was here to take the Presiding Officer's photo, and he told me that many of the photographers who had been at the 9/11 tragedy are now suffering from asbestos-related problems, which I had not realised. We might think that, given the demise of our shipyards, we have seen the end of asbestosis and related diseases. Given the problems in construction and demolition, it is likely that the law of unintended consequences will kick in and that we will see the incidence of these diseases increase as a result of something that we did not expect—although perhaps not as a result of a tragedy as massive as 9/11—in the same way that we did not appreciate what would happen when we started to use asbestos.
We have addressed correctly the issue of retrospectivity. It is difficult to consider whether we need to roll back further the date on which the provisions come into effect. Clearly, sometimes the companies involved knew, or ought to have known, what would happen. We have made the position quite clear to the insurers, who are not being prejudiced in any way. We are not rolling back the date many years, which is usually what causes the problem with retrospectivity. In the circumstances, it is fair and appropriate to make the bill apply retrospectively. The insurance companies, which will ultimately have to pay out the money, are not being prejudiced in any way, because the minister made it quite clear what they would have to face. The appropriate balance has been struck.
The minister referred to the Scottish Law Commission's review of personal injury law, which is to be welcomed. Those who have suffered from mesothelioma have found it difficult to find a company that they could sue and which would accept responsibility. In some cases, they pursued a company only to find that it was a shell company and that all its assets and money had been moved to another company bearing the same name, but with, for example, "(1980)" at the end.
There are shifting sands and we have to ensure that our legislation moves along with them. We welcome not only the tenor that the minister set for the debate but her reassurance that the Scottish Law Commission is reviewing personal injury law, because there are a number of other matters relating to personal injury that we need to address. It is our obligation to make amends not just for the injustice of mesothelioma but for the numerous other injustices that still exist.
This has been a consensual debate, but it has not been born of consensus. We recognise that people have struggled for many years for recognition: recognition of the problem, and recognition of the need for Government to act to solve it.
It is an absolute privilege to be involved in this debate, not simply because everyone welcomes this important bill at stage 1, but because I have had to do very little to make that happen. That is to be welcomed, and having a nice time at committee is even more of a pleasure. However, although there is consensus and people have come together, we acknowledge that it was not always thus.
We also acknowledge that during the evidence taking at stage 1, all those involved in the debate, from all sides—or from what could be perceived to be sides—came together and were focused on achieving the solutions that the bill identifies.
Mary Mulligan said that we can be perceived as trite when we say that we wanted to become an MSP because we wanted to make a difference. However, I hope that people in Scotland will take confidence from seeing a real closing of the distance between elected representatives and those whom they represent.
I believe that the bill shows that it is possible for the walls of a Parliament to be breached and for those in our communities who have suffered injustice and who are entitled to have that injustice sorted to have the matter addressed by a Parliament. Sometimes, solutions come through conflict and argument, but sometimes solutions come through building a consensus round an entirely logical position. I believe that this is a good day for the Parliament and that the bill will make a significant difference to those who have campaigned on the issue for so long.
Carolyn Leckie said a lot of people suffer from the problem as a consequence of the jobs that they did. The cruelty of someone suffering in their retirement as a consequence of what they did before they were retired has already been identified. The way in which people resisted taking responsibility for that reflects a time of reckless disregard for the health and entitlements of others in the workplace. It is good that there has been movement and that there is now recognition of the significance of health and safety measures in protecting working people in their everyday lives, so that, later in life, people will not have to live with the consequences of such recklessness.
This is a straightforward and simple bill. It demonstrates the Executive's and the Parliament's ability to respond quickly, positively and with compassion to secure changes in the law when faced with a compelling human need.
We know about the cruel dilemma that the bill seeks to address. We know that sufferers are forgoing, or have forgone, the comforts that compensation might provide before they die so that they do not disadvantage their families. We know that most sufferers are men who were exposed to asbestos in the course of their work, but members of their families have also been at risk through contact with the fibres.
Most deaths from the disease occur between the ages of 60 and 80, with only 18 per cent occurring before the age of 60, and we know that the problem will continue. About 80 per cent of cases can be associated with occupations in which there was a greater likelihood of exposure to asbestos, such as shipbuilding and construction—as evidenced in Des McNulty's and Duncan McNeil's constituencies—but I recognise the point made by Stewart Stevenson, and we should be alive to the fact that other groups have also suffered.
Although I came late to the matter, I had responsibility for the bill in committee. During the oral evidence sessions, I was particularly struck by the fact that the issues go far beyond financial considerations, such as damages—that is one of the dilemmas. For example, someone who suffers wants the person who caused their suffering to acknowledge that. They are denied not only that but the finance that would give them comfort at the end of their life. They are denied the opportunity to hear someone say, "This was my fault. It is my responsibility. This is what I have done to you." The sufferers want that acknowledgement. I found that a powerful message: even if this is not about the money, it is important for us to address the provision of an opportunity for the suffering of individuals to be acknowledged.
The bill will allow sufferers to hold someone to account before they die without worrying about disadvantaging their family. I have been genuinely heartened today to hear from members throughout the chamber their warm support for the bill.
I will make some brief points on the issues that have been identified. As Mike Pringle said, there was a great deal of discussion of retrospection in committee. Frank Maguire stated:
"I take the convener's point … that the insurers and defenders have not had notice that that"—
that is, retrospection—
was going to happen. If the Scottish Executive indicated now that, once royal assent is given, the act will be retrospective from now, that might make me feel a bit easier regarding any human rights challenge in future."—[Official Report, 6 December 2006; c 4127-28.]
That measure gives certainty to those who want to use it from now, but at the same time it reduces the opportunity of challenge. The evidence to support that exists: in the month before 20 December, only one sufferer took up a case, but since 20 December 13 sufferers have been able to raise a case. Dealing with retrospection to enable us to capture that small group has been a significant step, which addresses a slightly different point from the one made by Carolyn Leckie.
On the issue of one court action rather than two, we have recognised the importance of the point made by the Justice 1 Committee and we are currently taking the recommendation forward with external stakeholders.
Sandra White identified the issue of Alimta. As she said, an appeal against the NICE final appraisal document has been upheld on several counts. NICE is therefore looking again at Alimta and plans to announce its decision in September. When NICE has come to a view, NHS Quality Improvement Scotland will consider the appraisal and advise whether it should apply in Scotland. Once NHS QIS has come to a view, Scottish NHS boards will be expected to follow its advice. I do not pretend to be an expert in this area, but my understanding is that that advice would be taken in line with the criteria for which the boards have responsibility; it would not be about the sufferers' incomes. Whether someone has secured damages ought not to be taken into consideration if Alimta is considered to be appropriate in their case.
Work has already begun on the Scottish Law Commission review of the law of personal injury damages. It cannot be done very quickly, but the Scottish Law Commission will report in 2008. It will be a major and important piece of work, as has already been said. The level of damages is a matter for the courts, or for a jury, if one is involved in the case.
We recognise the importance of what we are doing here today. We are sending a signal to those who are suffering about their right to have their suffering recognised, to have those who are at fault held to account and not to have the dilemma of worrying about their families.
I thank the members of the Justice 1 Committee, the clerking staff and the officials who had to deal with me at such a late stage in the process for their support. I am grateful for the thoroughness of all those who were involved in the process.
Clydeside Action on Asbestos has been referred to but I would like to highlight the prominent role in all these issues played by the Clydebank Asbestos Group, which is represented here today.
Indeed. As was said earlier, Des McNulty also represented those interests. We have already recognised the very significant role of all the groups in forcing the issue on our attention.
We are showing the flexibility of the Scottish Parliament in using the most appropriate solution to remedy the problem. We are sending out an important message about our accessibility and willingness to seek solutions to the problems that people have identified. Perhaps those solutions will not make the headlines, but they will make a significant difference.
We are considering another appropriate solution to a problem—this time, that faced by people in Scotland who suffer from mesothelioma. The bill was the right thing to do. It will provide justice to those who suffer from this terrible disease. We were encouraged by the unanimous support that was given last summer to the legislative consent motion in relation to the Barker judgment, and I hope that today members will support the motion on the general principles of the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill in a similarly whole-hearted way.