7 Conclusion |
35. We set ourselves the task of examining whether
the Government's decision to apply sections 44 and 46 of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 to mesothelioma
claims was appropriate. The claims process for mesothelioma must
take account of the principal factor which distinguishes the disease
from others: the short life span which can be expected by those
diagnosed with the invariably fatal disease. To a large extent,
as we heard, legislation and court practices already seek to accommodate
this feature of mesothelioma. The question is whether a further
specific distinction should continue to be drawn in relation to
the system of funding claims.
36. All who are involved in formulating policy on
mesothelioma claims, and in handling them within the legal process,
are acutely aware of the profoundly distressing circumstances
in which mesothelioma sufferers find themselves, in most cases
as a result of the negligence of a past employer or employers.
That shared awareness plainly does not translate into practical
consensus on the best mechanisms to apply to ensure that claims
are dealt with swiftly and fairly. Indeed, we cannot recall any
subject into which we have inquired on which there has been such
a pronounced binary division of opinion and approach.
37. This is also an issue on which
it is not easy to disentangle questions of process and substance.
There are telling criticisms which can be levelled at the way
the Government has handled this matter, some of which we have
spelt out in this Report. The existence of an undisclosed "agreement"
between the Government and
the insurance industry is not conducive to the creation of trust
among victims' representatives, claimant lawyers and others that
an opposing viewpoint will be heard. The haste with which the
Government embarked on a review and consultation, and the way
in which it presented them, left those who favoured retention
of the LASPO exemption for mesothelioma potentially disadvantaged
in terms of marshalling a persuasive case.
38. We conclude
that the Government, perhaps as a consequence of being
forced into the concession of including an exemption for mesothelioma
in the LASPO Act pending a review, did not prepare the ground
for its section 48 review in a thorough and even-handed way. We
recommend that the Government defer the introduction of the change
it has announced until it has undertaken a further consultation,
which should be framed unambiguously and centrally on the question
of whether the LASPO provisions should be brought into effect
for mesothelioma. This consultation should be informed by an updated
cost-benefit analysis, on which respondents should be asked to
comment. We consider that such a consultation should not be undertaken
until sufficient time has elapsed for the effects of the LASPO
changes in non-mesothelioma cases to be assessed.