The government's U-turn on mesothelioma is wrong

There's something about U-turns that automatically rings alarm bells.

On the roads, they're banned in almost every circumstance - for a good reason. A driver executing a U-turn goes against the prevailing traffic, causing danger and the risk of an accident.

Governmental U-turns are no less dangerous. Last week we were confronted with one by Justice Minister Shailesh Vara. It is difficult not to see it as both a disaster and an injustice.

A manifest injustice

It transpires that the government has decided to revoke the exemption of mesothelioma claims from the success fee and after the event premium elements of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This follows a consultation launched in July last year.

The consultation was initiated to determine whether sections 44 (on success fees) and 46 (on ATE premiums) of LASPO should be brought into force in relation to mesothelioma claims. Along with many other personal injury practitioners, I was concerned to ensure that they remained exempt. Bringing them into force for mesothelioma claims could only result in a manifest injustice, which was summed up succinctly by my colleague Matthew Stockwell, the current president of the Association of Personal Injury Lawyers. As Matthew put it:

"It's impossible to rationalise why dying people should have to pay for the inherent risks of pursuing redress, when they certainly never asked to be in a position where they need compensation.

"Mesothelioma claimants know they are going to die, and they know they have to race against the clock when they make a claim. They are simply trying to make their last few months more bearable, and to ensure that their families will have some security when they're gone. If ever a claimant needed full compensation, it is surely the claimant facing a death sentence just because he turned up for work."

Adding to the distress of sufferers

Matthew's sentiments are absolutely right. Moreover, Shailesh Vara's declaration that "the Government carried out the section 48 review as part of the consultation on reforming mesothelioma cases, which concluded on 2 October 2013" and that, as a result, the government has "concluded that they intend to apply sections 44 and 46 of the LASPO Act to mesothelioma cases" comes across as dry and insensitive to the point of indifference.

This feeling is bolstered by the Justice Minister's additional statement. He said that the government understands “mesothelioma victims face an appalling and fatal disease with which they and their families have to come to terms, while also having to engage with the claims process. Without in any way seeking to minimise the distress this entails, however, there are many other serious personal injury and fatal claims, to which the LASPO reforms already apply, that produce difficult challenges for victims and families."

What is this statement, other than one which minimises, if not enhances, the distress of mesothelioma sufferers and their families?

To her credit, Conservative MP Tracey Crouch has joined with Labour MPs in saying that a proper review has not been carried out. Shadow justice minister Andy Slaughter has also urged the Justice Minister to conduct another consultation. We can only hope that sense, justice and fairness prevail, and that the government reverses its decision. For once, that would be a U-turn that makes sense.

The Litvinenko case and the principles of public life

Nearly seven years ago, in November 2006, the former Russian KGB spy Alexander Litvinenko was poisoned with radioactive polonium in London. His widow, Marina, has since been engaged in a protracted struggle to find the truth behind her husband's death. Regrettably for Mrs Litvinenko, it seems that what has already been a frustrating search is set only to get worse.

Two weeks ago, the Home Secretary rejected calls for a public inquiry into Litvinenko's killing. Theresa May outlined the government's reasons in a letter dated 17 July to Sir Robert Owen, the coroner who had asked that an inquiry (under the Inquiries Act 2005) be established as a matter of urgency.

Full, fair and fearless?

Sir Robert made his request on 4 June. Among the factors persuading him that a public inquiry was desirable was the government's seeming determination to keep a variety of documents secret. This, he felt, meant that it would not be possible to conduct a "full, fair and fearless" inquest. A public inquiry, which would, if necessary, enable certain evidence to be considered behind closed doors, was the only way for the truth to be established.

Theresa May did not agree, and expressly alluded to the political machinations behind her decision: "It is true that international relations have been a factor in the government's decision-making." This was taken further by Elena Tsirlina, Mrs Litvinenko's solicitor, who said the decision not to hold a public inquiry followed "months of talks between the two governments at the highest level" including discussion between the prime ministers of Russia and the UK. She added: "What deals have been made behind the scene is difficult to know."

It is easy to sympathise with Mrs Litvinenko. Here we are, seven years after her husband's murder, and no one is any the wiser as to why it happened and who perpetrated it. Rumour and counter-rumour continue to swirl, and the Russian authorities refuse to extradite two men suspected of the killing, former agents Andrei Lugovoi and Dmitri Kovtun (both of whom deny any involvement). The Litvinenko family intend to launch a judicial review on the grounds of "irrationality" into the decision not to hold a public inquiry.

The principles of public life

I empathise with the family's plight. Their plan to initiate judicial review proceedings is understandable. Along with just about everyone, I cannot pretend to know the facts, but then again, that is the point: a man has been killed in deeply suspicious circumstances, and both his family and, given his occupation, we, the public, have a right to know what happened. I also wonder if the decision not to hold an inquiry could have been more sensitively handled.

By way of a wider point, openness and transparency should be watchwords for those who govern us, as, indeed, is enshrined in The Seven Principles of Public Life, also known as the "Nolan principles" given their genesis in the first report of the Committee on Standards in Public Life.

I republish the principles here. They're worth taking to heart by anyone, in whatever sphere, who serves the public.

The seven principles of public life

All candidates for public appointments are expected to demonstrate a commitment to, and an understanding of, the value and importance of the principles of public service. The seven principles of public life are:

Selflessness

Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.

Integrity

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability

Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

Openness

Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands it.

Honesty

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

Holders of public office should promote and support these principles by leadership and example.

Ethically Correct

In the wake of the latest scandal to hit the government the need for a reinvigoration of sound ethical principles could not be more pressing.

It is, in fact, extraordinary that we are once again confronted with the dismal spectacle of MPs on the make. Nearly 20 years ago The Guardian exposed Britain's then best known parliamentary lobbyist, Ian Greer of Ian Greer Associates, for paying bribes to two Conservative MPs in exchange for asking questions in the House of Commons.

Cash for questions (again)

The 'cash for questions' affair, as it became known, led to understandable public outrage and to the Nolan Committee being set up by Prime Minister John Major.  Its task was to review the issue of standards in public life; in turn, it led to the creation of the Committee on Standards in Public Life.

Amid the collapse of high profile libel actions brought by Neil Hamilton and Ian Greer the Nolan Committee published its First Report, which articulated what it described as 'The Seven Principles of Public Life'. It is difficult to believe that each and every one of our current crop of MPs honours these principles, despite the fact that they are also enshrined in the Ministerial Code. By way of a reminder, here they are:

• Selflessness - Holders of public office should act solely in terms of the public interest. They should not do so in order to gain financial or other benefits for themselves, their family or their friends.

• Integrity - Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.

• Objectivity - In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

• Accountability - Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

• Openness - Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

• Honesty - Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

• Leadership - Holders of public office should promote and support these principles by leadership and example.

What was in Patrick Mercer's mind when he agreed to produce a Parliamentary report for a client for £2,000 a month? Evidently not the Seven Principles. Following a sting by The Telegraph and BBC's Panorama programme the MP for Newark has now resigned from the Conservative party and stated that he will not contest the next general election. One commentator said that in resigning Mercer had "acted honourably" but it strikes me that more honourable would have been not to have been tempted by financial gain in the first place.

The need for an ethical revolution 

Also embroiled in the scandal is Lord Laird, who has confirmed that he was approached by two BBC journalists posing for a fictitious consultancy group, which was supposed to be acting for the Fijian government. His Lordship says he has referred himself to the House of Lords standards watchdogs and to Black Rod, the House's senior official, and avows that he has not broken any rules.

This may well be the case. This story has some way to go yet, with Panorama airing at 9pm tonight. Doubtless the media will follow up tomorrow; Lord Laird may yet be exonerated - or he may face serious criticism.

But even if, in Lord Laird's case, rules were not broken, it seems to me that we cannot hope to avoid another case of egregious conduct by MPs if they insist on acting solely by reference to the rulebook. What must happen is that MPs, and all of us who serve the public, absorb the Seven Principles so that they become second nature. We must strive to act ethically at all times, so that even if, according to the rulebook, a course of action may seem acceptable, we may yet decide not to take it because it doesn't seem ethically correct.

This need for an ethical revolution is as prevalent in the professions as it is in politics. We can all make mistakes - to err is, after all, human - but if we managed to act according to the Nolan Committee's recommendations we might find that our mistakes aren't so frequent - and that they're not so costly.

Asbestos in Schools: A Missed Opportunity

Towards the end of last year Cwmcarn school in Wales was closed after a structural survey identified asbestos in the main block. The report by Santia Asbestos Management Limited concluded that the health risk posed by asbestos was so great that the school should be demolished.

The dangers posed by asbestos have long been known - and they remain a real issue. In the past 10 days Bronglais Hospital in Wales has been in the news, after a critical review of its management of asbestos. It is feared that up to 30 maintenance staff at the Aberystwyth hospital could have been exposed to asbestos.

In light of any number of similar stories and the wealth of available data on how carcinogenic asbestos dust is, you would be forgiven for believing that the government, in its recently commissioned review of the buildings that comprise the education estate, would put 'Asbestos Risks and Management' at the top of its assessment list. This is not the case. In fact, assessment of asbestos is barely even a footnote to the brief. Our schools are being reviewed by sundry experts, at taxpayer expense, and yet clear and identifiable risks to their constituents - children, the most vulnerable sector of society - are not being considered.

A Flawed Survey

Let’s rewind to the genesis to what is now known as the Property Data Survey Programme (PDSP). As part of the government's response to the Review of Education Capital in July 2011, the Department for Education (DfE) agreed that urgent work should be undertaken to collect up-to-date information on the building condition of the education estate. Collection of such data had ceased in 2005. The aim, as stated by the DfE, was to "deliver the most accurate, consistent and comparable data set possible on the condition of the English schools estate."

In September 2011, Partnerships for Schools (now the Education Funding Agency) was commissioned by the DfE to deliver the PDSP. Some 23,000 educational establishments throughout England would be surveyed in order "to ensure future capital maintenance funding is targeted to meet the most urgent condition needs." Work duly began in early 2012. The various surveying companies contracted are expected to complete their analyses in summer, possibly autumn, this year. Their findings will be used to calculate the 2014-15 capital funding allocations. The government then plans to continue with a rolling 20% sample of the education estate each year, so as to enable "a credible full picture of the estate’s condition every five years."

The word "credible" beggars belief. How can the PDSP be regarded as credible if it fails to include an assessment of asbestos in schools?

The PDSP will not assess the danger of asbestos in schools - but it does pay it some lip service. As such, the survey will only seek confirmation that the school has carried out its statutory obligations, i.e. maintaining an up-to-date Asbestos Management Plan and/or Asbestos Register. It will not direct them to the DfE website and relevant guidance. No detailed assessment of the documents will be carried out by the surveyor but if, presumably because they are blindingly obvious rather than carefully investigated, the surveyor identifies any asbestos issues, he or she will bring them to the attention of the school. Each school is then to be left to undertake any corrective measures. This is in keeping with the Control of Asbestos Regulations 2012 (previously 2006) and related legislation, which leaves responsibility for asbestos firmly with local authorities and schools.

In other words, when it comes to asbestos the PDSP passes the buck. It amounts to a huge missed opportunity to determine the scale of the asbestos problem in England's schools and educational establishments. Despite spending millions of pounds on the surveys (£500-£750 for nurseries, £750-£1,200 per 17,000 plus primary schools and £2,000-£3,000 per 3000 secondary schools), no central information will be gathered on the scale of the asbestos problem in our schools.

And Some Flawed Regulations 

Perhaps the government feels that express engagement with asbestos in the PDSP is not merely an extra cost but unwarranted. After all, the Control of Asbestos Regulations 2012 (which updated previous asbestos regulations to take account of EU Directive 2009/148/EC), articulate the so-called "basic principle" that "asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard". Two other basic principles hold that asbestos should not be removed unnecessarily ("removing it can be more dangerous than leaving it in place and managing it") and "not all asbestos materials present the same risk. The measures that need to be taken for controlling the risks from materials such as pipe insulation are different from those needed in relation to asbestos cement."

When it comes to schools, the basic principles are seriously flawed. Schools are full of people who, by definition, act in spontaneous and unpredictable ways. It is ludicrous to expect children not to disturb asbestos.

It is tragedy that we are saddled with such inadequate primary legislation but t is all the more disturbing that the PDSP will not collate vitally needed data on asbestos in schools and make it available nationally. Please join me in urging the government to reassess the brief underpinning the PDSP so that our children's lives - and the lives of those who teach them - can be better protected.

The Government’s Proposed Changes to the RTA Portal are Wrong and Unjust

As the year comes to a close I'd like to look back and write positively about events in 2012. After all, this was the year in which Britain hosted - to universal acclaim - the Olympics and Paralympics, Bradley Wiggins became the first Briton to win the Tour de France and Chelsea, my beloved football team, scooped the Champions' League trophy.

Regrettably, the feel-good factor generated by sporting success is not matched in other sectors of society. As my recent letter to The Times pointed out, Britain is bedevilled by ethical lapses in politics, journalism and finance. We must try to rectify these and instil higher standards of professionalism across the board, but so too, as the long-awaited Jackson reforms come closer to reality, should we take a long, hard look at how well we serve victims of accidents.

Slashing Costs in the RTA Portal Scheme

I say this because of the unconscionable changes which the government has proposed to the RTA Portal scheme. Fixed recoverable costs for Protocol claims were negotiated between insurers and claimant representatives just two years ago, before the Portal came into being. The figures took into account the amount of work required by law firms to process claims, from inception to conclusion. The fixed costs agreed represented the average cost of cases rather than the lowest possible level. They are not exactly generous: typically, time spent on RTA cases far outweighs the costs recoverable at the conclusion of the claim.

But, emboldened by its ban on referral fees and in cahoots with the insurance industry, the government now seeks to slash fixed costs in Portal claims by £700. This proposal is contained in the Ministry of Justice's consultation document. Put boldly, it means that for RTA claims of up to £10,000 no more than £500 in legal fees will be recoverable.

In Cahoots with Insurers

It seems likely that this arbitrary reduction is a reaction to the perceived levels of referral fee that some PI solicitors are thought to be paying. Undoubtedly, the proposal comes on the back of an 'insurance summit' held between the government and insurers earlier this year - to which not a single claimant representative was invited. It also follows a relentless campaign by the Association of British Insurers to influence policy under the guise of reducing motorists' premiums.

On top of this, further changes are proposed. The government seeks to extend the Portal vertically, to handle claims up to £25,000. It intends to fix recoverable costs for such claims at £800 - which is a third less than the current recoverable costs on injuries between £1,000 and £10,000. That's not all. The horizontal extension of the Portal is also proposed, so that it will include employers’ and public liability (EL/PL) claims up to £25,000. Here the costs recoverable will be £900.

A Manifest Injustice

The proposals are manifestly unjust. An injury valued at £25,000 is very serious. It may be permanent; it will almost certainly be long-lasting. Such cases routinely require multiple medical reports, extended periods of treatment and often have a multitude of losses such as past and future loss of earnings, handicap on the labour market and considerable treatment costs. How can it possibly be right that injuries like this are dealt with for a total of £800? The number of hours of work required in such a case bears absolutely no correlation to the proposed recoverable costs.

The same is true of ostensibly smaller claims. £500 yields little of even a junior solicitor's time - unless that solicitor is paid the minimum wage.

When it comes to EL/PL claims, the proposals are no better. By their nature these claims are labour intensive. They do not sit comfortably within a portal regime. Again, though, lobbying by the insurance industry would see these claims shoe-horned into the Portal environment, despite the absence of any considered analysis of whether they are suitable and the correct level of legal fees for such work. Indeed, by way of a general point, Professor Paul Fenn (a leading expert in the interpretation of data from the RTA Portal) has concluded that it is simply too early to glean any meaningful data from the Portal. His suggestion that a further period is allowed for the Portal to settle is all the more compelling given the fact that some 50% of claims presently exit the Portal.

A Drop in Service

As I say, then, I wish I was looking back with a warm glow at 2012 – but when I think of the palpable injustice to victims of accidents that will flow from the proposed changes to the Portal I feel only anger and dismay. There is no doubt, if the changes are implemented, that the qualification and experience of fee earners handling Portal claims will drop. Just as depressing, from the client's point of view, is that many law firms will be forced to recover significant costs from injured peoples' damages in order to meet the massive shortfall in costs.

The government is wilfully neglecting the rights and trauma of accident victims out of a shocking obeisance to the insurance industry. Join APIL, MASS, the TUC and the Law Society and others next year in campaigning to stop the changes becoming reality - and, in the meantime, have a happy and safe Christmas.

The DWP’s Mesothelioma Scheme: Just Not Good Enough

Amid all the excitement of the Olympics it is perhaps no surprise that a press release issued at the end of July attracted little attention. It came from the Department of Work and Pensions, and sounded like a piece of very good news in announcing that, from 25 July, £300m was being pledged for the support of mesothelioma victims.

There was a catch – and hats off to The Observer for disclosing it last Sunday. In this piece, Jamie Doward highlighted the fact that the scheme is only available to future victims of mesothelioma, a form of cancer caused by exposure to asbestos.

To be fair, the DWP’s original press release, issued on 25 July, made clear that the scheme would only apply to “newly diagnosed victims”. It stated that the scheme “will allow around 3,000 mesothelioma victims across the UK who are unable to claim compensation because they cannot trace a liable employer or employers’ liability insurer to receive approximately £300m in payments in the first 10 years”, adding that around “300 mesothelioma sufferers a year currently lose out on compensation because they are unable to trace a liable employer or employers’ liability insurer”.

Lord Freud, the Minister for Welfare, declared: “We have worked tirelessly together with the insurance industry to agree this package of measures on behalf of those who face this terrible disease. The new scheme will mean that, for the first time, sufferers of diffuse mesothelioma, who cannot trace either a liable employer or employers’ liability insurer, will have access to extra payments.”

That sounds fine, so far as it goes – but the trouble is that it doesn’t go far enough. For starters, it seems that there will be a two year delay in the implementation of the scheme owing to the need for primary legislation. Mesothelioma is a terribly aggressive cancer, and the life expectancy of anyone diagnosed with it is nine months to a year. This means that anyone diagnosed with the disease now is likely to die before the scheme comes into force.

Moreover, as The Observer reports, there is considerable disquiet at the fact that the scheme only benefits suffers of mesothelioma. People suffering from asbestosis, pleural thickening and asbestos-related lung cancer are excluded from the scheme, but campaigners say these conditions amount to 50% of all asbestos diseases.

No wonder Tony Whitston, the chairman of the Asbestos Victims Support Groups Forum, told The Observer he was “bitterly disappointed at the exclusion”. He went further, accusing the government of acceding to the wishes of “rich and powerful insurers”.

I have previously alluded to the rather too cosy relationship that exists between the present government and the insurance industry, and have much sympathy with Mr Whitston. There is something about the wording of the DWP’s press release that is worrying. Lord Freud comes across as too keen to praise insurers (in saying how “tirelessly” they have worked with the DWP), and the press release is also at pains to point out that the scheme is “funded by insurers”. Then comes a quote by Otto Thoresen, the Association of British Insurers’ Director General (rather than someone from, for example, the Asbestos Victims Support Groups Forum). Mr Thoresen has this to say:

“Mesothelioma is a particularly aggressive cancer and the insurance industry, working with government, is determined to do all it can to ensure that sufferers get the support they need as soon as possible. This package of measures will deliver help to claimants much faster, including to those who would otherwise go un-compensated.”

Regrettably, though, this conjunction of the government and the insurance industry has not done all that it can. The scheme only applies to people suffering from mesothelioma since 25 July this year, will not be wholly effective for two years, and excludes a vast swathe of asbestos-related conditions. The bottom line is that many people will continue to go un-compensated, and, as so often when it comes to this government and the PI sector, so-called ‘reform’ simply isn’t good enough.