HC Deb 14 November 1930 vol 244 cc2029-106

Order for Second Reading read.


I beg to move, "That the Bill be now read a Second time."

This is the fourth occasion since the famous decision in the highest court of the realm on which this or a similar Measure has been before the House. Practically everything that can be said in relation to it has been discussed, and I think everyone is familiar with almost every point. The Bill is slightly different from the previous Measures. It has been altered in order to meet what we conceive to be the requirements of the present day. The Bill was first introduced by the hon. Member for West Middlesbrough (Mr. Griffith) within 24 hours of the decision to which I have referred being given, and, although it was introduced under the Ten Minutes Rule, it was accepted by the House, indicating that at least there was universal agreement against the legal decision. When it was before the House last year, the Noble Lord the Member for Hastings (Lord E. Percy) said there was no doubt that the existing law as now interpreted needed to be changed. The hon. Member for Canterbury (Sir W. Wayland) later declared that his experience of the employment exchanges and as an employer had shown him that some of the very saddest cases occurred when a man was looking around for light work. We hope to-day that that sadness will be wiped out by the adoption of the Measure.

It contains three principal parts. It deals with partially incapacitated men. The case that. brought the Measure about was a case of miner's nystagmus, one of the most terrible diseases from which anyone can suffer. All the medical skill and science so far has not been able to find the causes that bring it about. We have heard it stated by medical referees that it is possible for a man on one day not to suffer from it to the extent that he is entitled to full compensation, and on the next day to be in such a state that he is entitled to it. He may be certified for light work that does not involve sitting or standing. The occupation that entitles a man to lie down at his task has not so far been discovered, yet not dozens or scores but hundreds of decisions have been given along those lines. Cases can be enumerated that show the absolute folly of the Law as it stands in relation to these cases. The Bill proposes to enact that, if a workman has so far recovered from his injury as to be fit for employment of a kind, and has failed to obtain such employment, he shall be deemed not to be able to earn wages. Ever and anon in the past we halve heard arguments, and shall doubt hear them to-day, as to whether earning wages means that a man is able to perform any particular kind of work. We contend that, if a man suffers as the result of an accident or a. scheduled disease and is unable to find work, that entitles us to declare that a judge shall be in a. position to order that his incapacity shall be treated as total incapacity resulting from the injury for such period. A proviso has been added giving to men suffering from partial incapacity a privilege similar to that which is given to unemployed workmen. The onus is put on the employer of showing that a man has not taken reasonable steps to find work. What is good enough for the unemployed ought in common fairness and justice to be accepted in the case of men who are partially incapacitated.

Though the Bill has been brought about as the result of a decision affecting the miner, this is not a Bill for miners alone. There is not a class of workmen or women engaged in industry from which cases could not be cited. You have the most ridiculous decisions that have ever been known. The fact that a man is able to do a watchman's job, or a caretaker's job, is held to be a reason for reducing his compensation. The fact of his not having a job ought to be a reason for giving him full compensation. That is the standard that we desire the House to adopt. During the last few days appeals have been made through various avenues on behalf of those who have suffered as the result of naval and military campaigns. Appeals have been made for justice to be done to them. To-day we are asking that justice shall be done to those who have suffered from, and who bear the scars of, the industrial warfare. The victims are greater, and consequently the injustice is worse and more severe. I ask the House to view the question from the point of view which has been put forward on many occasions. It has always been contended that if only we could see these matters from a non-party point of view, it would be possible to get them through. The question of an injured workman ought not to be made a matter of party contention, coming, as we do, from an industrial area where we see these victims. It has been our lot to accompany men who have had to go before the medical referees. The medical referee, in handing over his award, has said, in effect: "Here is practically what amounts to your death warrant being given to you, because we realise that the decision which was given, while in accordance with the law, was morally wrong, because you were unable to find a job owing to the injury or industrial disease from which you suffered."

I ask that this Measure should not merely have a Second Reading. Whatever may be said in relation to any of the so-called legal difficulties which may be in this Measure, there can be no question or doubt that it ought to be the desire of all Members of this House to see that at last, long after the decision to which I have referred has been given, this injustice, which is admitted and now operates against injured workmen who are able to do only light work and are partially incapacitated, ought to be wiped out. It is for that reason I have pleasure in moving the Second Reading of this Bill.


I beg to second the Motion.

As my hon. Friend the Member for Barnard Castle (Mr. Lawther) stated, this Bill has been before the House on several occasions previously, but, although it has had a large measure of support, it has failed to reach the Statute Book. I contend that the Bill ought to be put on to the Statute Book at the earliest possible date in order to remedy some of the injustices which my hon. Friend the Member for Barnard Castle has just outlined. The amendment of the Act of 1925 is very urgently needed. I think it is agreed on all hands that the workman who to-day is only partially incapacitated is not in thousands and thousands of cases getting the compensation which the legislators of this country originally intended that he should receive. I can speak with some experience, having had to deal with this kind of case. Before the war, as a lodge official in the Miners' Federation, I knew of scores of cases of serious injustice, but since the decision in the case of Bevan v. Nixon's Navigation Co. was given, the position has become very greatly aggravated, and insurance companies and the employers have taken a different line altogether.

I know that we shall hear from hon. and learned Members opposite that the present law is adequate, but, in the case quoted by my hon. Friend the Member for Barnard Castle, the decision was not a unanimous decision of the Law Lords. Two of those eminent Law Lords were against the decision which was given in that case. Nevertheless, it has been interpreted in a certain way and has been the means of deciding thousands of eases which have not come into the courts. When a decision is given like that, it serves as a guide to cases which are settled outside the courts, because everybody knows that it is absolutely useless, in face of such a decision, spending money on law costs by going to the courts again. Many of us, when we obtained the 1923 Act., thought that Section 16 gave us what we are now seeking to obtain in this Bill. Section 16 of that Act became Sub-section (4) of Section 9 of the Act of 1925, but we have found, since that Act was put into the Statute Book, that it appears to be more difficult to get a partial incapacity case treated as total incapacity than it was before. In fact, as a result of this decision, in many cases which I could quote, we have found the employers taking up a different stand altogether. My hon. Friend the Member for Barnard Castle has given an explanation of the meaning of the Clauses of the Bill, and I do not propose to do so, as I think he has said sufficient on that matter. I remember that when the Bill was before this House in November last, the hon. Gentleman the Member for Kidderminster (Mr. Wardlaw-Milne) who seconded its rejection, tried to argue that there was no grievance or that there had been no grievances stated and no cases quoted either by the Mover or the Seconder of the Bill at that time. These are the words he used: I have in mind the perfectly genuine eases, and I waited with great interest to hear whether either the Mover or the Seconder would give us any details or any reason to think there was a real grievance under the present law or that there were known to be many cases not covered by the present Act.''—[OFFICIAL REPORT, 29th November, 1929; col. 1884, Vol. 232.] I propose to give one or two cases to the House which, in my judgment, are crying aloud for the decision to be reversed. I am not now quoting miners' cases. Here is a case known as Barnes v. The London and North Eastern Rail way Co., which was decided in January, 1929, by the Court of Appeal. The facts were that an infant who was employed by the railway company lost his left foot in an accident whilst at work. He was fitted with an artificial foot and was employed, until he came of age, when he was dismissed. Imagine it! Employed until he became of age, with a foot amputated, and then dismissed, the employers regarding it as no obligation on their part to find him work any longer. The case went to court and all that the trade union could get for that victim was compensation on a partial incapacity basis. Here is another case of a man who was a blacksmith's striker, which went to the Court of Appeal. His arm was amputated above the elbow. Again, no attempt was made to find the man work, and an award was given of partial incapacity or partial compensation. I submit that it is almost impossible for a man with an amputated leg or an amputated arm to get work with any employer except on charitable grounds. I can quote a case where a man has been found work on charitable grounds alone, the employer taking compassion on him because his previous employer would not find him work. In these cases, you have partial incapacity awarded repeatedly, and I want to reiterate the sentiments uttered by my hon. Friend the Member for Barnard Castle. I hope that there will be no ambiguity about the desires of hon. Members on this side. We say that if a man is injured or suffering from an industrial disease, and the employer will not or cannot find him work, and he fails to get work elsewhere suited to his capacities, it should be obligatory under the law for the employer to pay him com- pensation on the basis of total incapacity. The hon. Member for Barnard Castle said that men are sent to the medical referee to get a decision, certifying that they are only partially incapacitated. Since the Bevan v. Nixon's Navigation case we find that the employers in this country are taking up a different attitude in nystagmus cases, with the result that a man who is suffering from miners' nystagmus is assumed to be only partially incapacitated at the beginning. We present a certifying surgeon's certificate and the man is then sent to see the employer's doctor. He hears nothing further until he goes for his compensation, and then he is told that the employer's doctor says that he is only partially incapacitated. Then the man is left weeks until he can get evidence from an ordinary medical practitioner and he is sent to the ophthalmic referee for a decision. In nine cases out of ten the men are being put on the partial incapacity basis.

The position is quite different from what it used to be, and the reason is that to-day in the large industries the employers are insured either in powerful indemnity companies or in insurance companies. It is not the employer who has to deal with the cases but the insurance and indemnity companies, who seem to be without either heart or conscience in dealing with the cases. It is not the number of cases that come through the courts that are the significant thing. As trade union representatives, from our own experience, we could give not scores but hundreds of cases. There must be thousands of cases up and down the country. I hope the House will give a Second Reading to the Bill and that the Government at an early date will provide time for the Measure to be put upon the Statute Book, in order to give these victims of industry the justice to which we think they are entitled.


This is a very short Bill and is designed to cure a disease which followed inevitably from a decision of this House which was made contrary to what the learned Law Lords thought was the rough justice of the ease. It was also a direct contradiction of the intention of this House. For this reason this Bill has my very greatest sympathy. But I remember that in the Committee discussions on the previous Bill that a very keen advocate of the Bill as it, then came before the House said that the only interest to reconsider was the interest of the worker. Accusations are bandied about in this Rouse from one side to the other that we represent one single class or another, with varying degrees of justice, but when we hear an observation of that kind coming from a responsible representative it fills one with suspicion and banishes any idea of a Council of State, an ideal that seems such a remote contingency at the present time. I regard the disease created by the Bevan decision as a disease which we must cure, but my doubt is how we are going to do it and whether we can do so by the Bill. When the Act was passed in 1923 a Section was inserted which allowed compensation to be given on a total incapacity basis if the incapacity to work was wholly or mainly due to the injury. Many people thought that that provision had solved the case, but they found that they were wrong and as a result of the Bevan case the law is again in uncertainty. Let. this be a warning to this House of the evil that comes from ill-considered legislation. The judges are constantly complaining of this very thing, and we must not blame the judges if they form their opinion upon what this House has done.

I would point out the very great danger which would result from the passage of this Bill. This Bill if passed in its present form will create greater injustices than the one which it is seeking to cure. There are more considerations than the most conspicuous one, namely, that of the workmen. There is justice to the employer and there is justice to the unpopular organisations behind the employers, the insurance companies and their shareholders. The House must consider this matter in an impartial way in order to find out the true justice of the case. By the Act of 1923 this House intended to say—I am paraphrasing it—that workman who was able to do some other or lesser work than before was entitled to get full compensation if his lack of power to do work was wholly or mainly due to his original injury. The Bevan case result said that a man who was thrown out of a special class of employment and who would certainly find employment at the present time in that special class, could not when thrown into a wider and more dangerous field recover on the total incapacity basis, in spite of the fact that his lack of employment was due to trade conditions in the wider field and not to his injury. That is the great injustice which this Bill seeks to cure.

I am not in any way dogmatising on this matter, but I have considered it very carefully, I do not want to put my opinion as necessarily better than the provisions of the Bill, but it is put forward in good faith and I ask the promoters of the Bill to consider it in that light. I have drafted an Amendment which I am putting forward informally now as worthy of consideration. It is much simpler than the Bill itself and is designed in my opinion exactly to cure the result in the Bevan case. I will read the Amendment. If a workman by reason of his injury is prevented from obtaining the kind of employment in which he was engaged at the time of his injury, but has so far recovered from the injury as to be fit for employment of another kind, proves to the satisfaction of the judge of the county court that he has taken all reasonable steps to obtain and has ailed to obtain such employment, notwithstanding that the cause of his failure to obtain such employment or to earn such wages is due to trade conditions, the judge shall order that his incapacity shall for the purposes of this Act continue to be treated as total incapacity. I do not expect hon. Members to understand the full implications of that proposal by a mere reading of them.


Do I understand that the onus of proof is to be on the workmen.


I will deal with that consideration later. I ask hon. Members to consider the suggestion I have put forward. If you read the judgments in the Bevan case you cannot help thinking that two lines of thought were in the minds of the eminent law lords and judges. On the one hand you will see a judgment which seems to be influenced by sympathy for the employer. You have phrases like this: The employer does not guarantee the labour market. The labour market is totally outside the field of workmen's compensation. The employer is not an insurer for the right to work but for the capacity to work. In an extreme form you have this opinion expressed by Lord Fletcher Moulton. He takes the case of an expert fitter who has ceased to be an expert fitter by reason of loss of eyesight or touch and can only be classed as an ordinary fitter, and he says: The position after the accident is that be has lost thereby the difference of earning power of a first class fitter as compared with an ordinary fitter. But ho has lost no more. I cannot agree with such a contention. He has lost a great deal more. He has passed from the region where employment is almost certain to a region where employment is less certain. He has passed into a much wider field, where he is exposed to the full blast of the industrial gale and the terrible and tragic conditions of the present time. He has removed from a safe harbour into the open sea and has to face the full blast of the industrial tempest. He has been driven out to sea because of his injury and he has a real grievance which must be remedied in the law of this country. That is my view, and that is what I think we ought to do in this matter. Let us take an extreme example. Take the case of a man employed on the construction of spectacle lenses. A bit of glass gets into his eye and he is useless for his old work. But he is perfectly fit otherwise and is in admirable health, but he has to go out from the field of employment where his employment is sheltered and certain to a field where employment is uncertain. I cannot agree with Lord Fletcher Moulton. He has lost a great deal more than the mere difference of wage earning power. He has lost his chance of employment and a very considerable chance of employment.

On the other hand, you find another view taken by eminent judges which is unfair to the employers. You have the idea that there is some question of a vindictive punishment for the accident against the employers, that the workmen has a right because of the injury itself and not because of the result of the injury. That is not a fair or just view. No one will contend that it fair to the employer that the workman should be in a better position because of his accident, and that result must follow if this Bill is passed in its present form owing to a later decision of the High Court in the Tannock case. One form of words has caused tremendous difficulty in the courts and that is the words "certain kind of employment." In my view they should be removed for ever. In the Tannock case it. was held that the words "employ- ment of a certain kind" would cover the original employment of the man when lie suffered his injury. That means that a man would be able to claim full compensation although in the field of employment in which he was engaged when he suffered the injury total unemployment prevailed and he would be able to enjoy full compensation not because of his injury but simply because of the unemployment which prevails.

The true view is that the employer should be asked to some extent to guarantee the labour market outside the special sphere in which the workman was engaged; that he should not be called upon to guarantee the state of the field of employment in which the man was originally engaged, otherwise you would have a. man drawing compensation which would have no basis whatever in the result of his injury. I think hon. Members will appreciate the distinction. if this Bill went through as it is now drafted it would place an undue and unfair burden on the employer. That itself would be unfair, but the Bill goes further. When the Bill was originally introduced it contained these words: The judge shall order that his incapacity shall for the purposes of this Act continue to be treated as total incapacity. Mark the words "continue to be treated." They imply that from the start he was totally incapacitated. In some mysterious way those words have been removed from the Bill. Perhaps to say "mysterious" is not wholly candid, because anybody who has studied the Committee proceedings will see exactly how these words fell out, but the result is now that according to this Bill it is possible for a man only partially incapacitated in the beginning to receive compensation on the basis of total incapacity. That is not only unjust but also illogical, and I am sure that the majority of the House would never allow such a paradox to go on the Statute Book. There is another point which we must consider. It is an entirely new provision which has crept into the Bill which puts the full onus of proving that the workman has tried to find work upon the employer and not upon the workman. Many arguments in favour of such e change have been advanced but I must confess that I profoundly disagree with the conclusions to which these argu- ments point. The workman has to go and prove his case. Why should be not say that he has tried to get employment and has failed. He need only show that he had lost a thumb or has suffered an accident to his sight; why should be not prove his case? Why should the employer have to set spies upon his men and prove the whole of the case against them? I do not think this will help the relations between employers and employed, and I cannot see why the workman should not be called upon to prove his case in this matter. Let me remind the House of the results of the abolition of the "genuinely seeking work" condition. I am unwilling to introduce controversy here, but there were many arguments put forward for removing that condition. Let us reflect on the result on the unemployment figures; if there is anything prophetic in the closest possible analogy, we should take warning. Here the victim will not be the State, but a private company or individual, and it will place a heavy and unjust burden on industry if you alter the burden of proof.

There is another modification of the Bill which we must demand having regard to the fact that it was conceded by the promoters on the last occasion. They gave an undertaking that the Bill should not be retrospective. I know they have many cases in their minds which they wish to see put right which have occurred in the past, but I would also remind them of the usual and cogent arguments against retrospective legislation. We have to consider the rights of employers and the many insurance policies which were entered into on a totally different basis. The arguments against retrospective legislation are so sound that I will not remind the House of them at this moment. On the last occasion on which this Bill was before us for Second Reading we were told by the Home Secretary that it was not perhaps perfectly framed and that it was essential to amend it in some particulars. We gave it a Second Reading, and it was sent to another place. The result was that when the Bill came back it covered a much wider field and was much less acceptable to hon. Members on this side of the House, who wished to see legitimate grievances cured. I ask hon. Members opposite not to lose that which they really want by asking for too much. Let them remember the grammarian in Robert Browning's famous poem, who aimed at a million and missed the unit. I ask them with great respect to narrow their claims in this particular matter if they wish to get this Bill through.

Finally. I must remind the House of the future of this Bill. What would happen? I can assure hon. Members that the Bill is full of difficulties and ambiguities even to the most highly trained legal mind. There will be a great plethora of legal cases. The Bill is designed in the interests of the workman. The litigation will go on for many years. I find it very difficult in principle to support the Second Reading of the Bill as it stands, although I am moved to do so for the purpose of seeing this injustice put right. My difficulty in supporting the Bill is due to the fact that the net is cast so wide and the wording is so wrongly made and so ambiguous that it will lead to many more injustices than the one which it is sought to cure; and in the end the only class which will profit out of the Bill will he the old trade union which, as far as I know, has never been praised in prose or verse by any member of society except by one of themselves, and is regarded by the general public sometimes with amused irony but often with acute impatience and dislike. I refer to the great profession to which I have the honour to belong.


I wish to support the general principle of the Bill, the details of which will be very carefully considered in Committee in the light no doubt of the very able speech which has just been delivered. I think the point we are discussing was first introduced to this House by my hon. Friend the Member for West Middlesbrough (Mr. Griffith), who introduced a Bill to deal with the point within a very few hours of the delivery of the judgment in the Courts. I am sorry he is not here at. the moment, but it is possible that before the Debate is over he will have an opportunity of expressing his views. I represent a number of miners who have very often spoken to me about the matter and told me of cases of suffering through this judgment. I am certain it is their desire that I should give every possible support to the Bill. It seems to sue that it ought to be a moral obligation upon every employer, when one of his workmen suffers per- manent injury in his service, to find him employment, if he can reasonably do so, for the rest of his days. At any rate if the employer cannot do that, he ought to pay full and adequate compensation. It is clear to everyone that under the present law, contrary to the will of Parliament, adequate compensation is not being given. Without going into the details or the merits of the Bill I desire, on behalf of my constituents, strongly to support the general principle of the Bill and to express the hope that before the Session ends it will pass into law.


I am very pleased, in company with other hon. Members who have spoken, to have the opportunity of trying to assist the House to come to a unanimous decision in favour of this Bill. My heart rose to great heights when I heard the hon. Member for Eastbourne (Mr. Marjoribanks) start. his speech. He warned us against hasty legislation. That warning can be accepted on all sides. Before he concluded his speech I thought it was not only hasty legislation we should be warned against, but the honourable profession to which he said he belonged. I am not capable of arguing this matter purely from the academic and legal aspect. I have lived amongst the workers all my life and in a small capacity have had to deal with numerous cases of the kind that will be remedied by this Bill. I do not approach this question particularly from the miners' standpoint, for my experience has been in the steel industry. If it did not weary the House I could give thousands instances of injustice, of men suffering under this interpretation of an Act of Parliament which I think was honestly intended to provide for the particular cases for which we are pleading.

This is a fitting occasion to pay our tribute to the pioneers of compensation law—men of different parties from my own, who in their day and generation passed Acts which have brought untold blessing to thousands and thousands of workers. I believe it was the honest intention of Parliament. that the workers should benefit under the 1925 Ant, as We wish that they should benefit under this Bill. The classical instance in the Courts has been referred to many times. It must not be forgotten that two of the learned judges dissented from that decision, which has brought in its train suffering to thousands of people. The strength of our case to-day rests chiefly upon some chapters that we are prepared to take out of the industrial book of lifer I shall not weary the Housing with reciting particular eases. The Bill itself is safeguarded there is no danger of the Bill being exploited by unscrupulous people. The hon. Member who spoke last seemed to convey the idea that there would be terrible dangers. There are always dangers, of course, when we legislate in this House. The person whom we have in mind, however, is only one of a very small percentage. We do not deny the existence of persons who might use a decision of this House wrongly to their own advantage.

The claim of the Bill is a very modest one, and modesty is a characteristic of the worker when he asks for anything. What is it that the worker does when engaged in industry? He invests his all in that industry. Men who have given 30 or 40 years' service to a particular firm, who have met with an accident in the performance of their duty and who can no longer follow their occupation, often have in their minds the idea that can be expressed in this way, "Well, as a long service man surely I can be employed!" But. I want to be fair to the employer as well. In these difficult industrial times, with so large a number of unemployed, can we rightly suggest that an employer should employ a man who is partially incapacitated by the loss of a hand, foot or leg, when it is possible for that employer to get a man who is sound in body and limb? It is rather too much to ask of employers, though they do it in thousands of cases. These men who have invested their lives in industry should be compensated, and when it- is proved that it is not possible for them to get employment they should receive full compensation.

As I said this is a modest claim. When we, the workers, want some information about compensation we should go to what are called the professional classes. I served on a small urban district council which was afterwards merged into a larger body, and when that amalgamation occurred, the manager of our little gasworks was compensated—and he is being compensated to-day—to the tune of £7 a week for loss of status. He is earning more to-day than he earned as the manager of that little gas-works. [An HON. MEMBER: "Did you oppose that?"] The trouble there, my friends, is that you are right and we are wrong. We workers come forward with a modest request that we should be compensated in the way which is here proposed. I repeat that it is a modest request and I hope that the House will pass this measure of justice for which thousands of cases are crying out—cases affecting thousands of good men and honest men. We often say in this House and hear it said on platforms outside that our workers are the finest in the world. So they are. Let us not be meagre, then, in meting out this measure of justice to men who have given all they possibly can give in their industrial lives, and who have met with accidents which disables them from following their occupations. I hope that on this occasion this Bill will meet with the unanimous approval of the House and that justice will be done to those who deserve it so highly.


I beg to move to leave out the word "now," and, at the end of the Question, to add the words "upon this day six months."

12 n.

So far as everyone who has spoken in connection with this Bill has spoken in favour of doing away with the injustice caused by the decision in the case of Bevan v. Nixon's Navigation Company, I am wholly in agreement with them. I recognised from the moment when that decision was given, that not only had a grave in justice been done to many thousands of work-people in this country, but also that the purpose and intention of the Workmen's Compensation Acts had been defeated by that decision, in so far as these matters are concerned. I have put on the Paper a Motion for the rejection of this Bill and my reason for doing so can be very briefly explained to the House. A Bill very similar to this and one which, in my opinion, would have been wholly inoperative had it been passed in the form in which it came before the House, was introduced last year. When the Bill was introduced the Home Secretary gave a clear and definite undertaking in these words: I am advised that the words in the Bill may not, indeed would not, safely and surely cover the intentions behind the promoters … I shall be glad to give the right hon. Gentleman— that was my right hon. Friend the Member for Hastings (Lord E. Percy): —the fullest assurance that I will do my very best to meet him in what he is asking." —[OFFICIAL REPORT, 29th November, 1929, cols. 1887–1889, Vol. 232.] My right hon. Friend was asking that the Home Office should consider the matter and bring forward their Amendments during the Committee stage of the Bill. When we got to Committee upstairs the Home Secretary said he had been further advised that there was no necessity for any change in the Bill. I then raised certain matters connected with the Bill, which, I think, showed that it did not really touch the injustice and in fact would not be operative at all. I secondly showed that the Bill instead of purporting as far as its terms were concerned to deal with the injustice, would, in fact, completely alter the principles on which the Workmen's Compensation Acts were founded. The latter criticism was met by a complete refusal on the part of the members of the Government to put in any words which would make the Bill work in accordance with the principles of the Workmen's Compensation Acts. In the circumstances it would have been impossible fur those of us who thought that those principles should be maintained, to have supported the Bill even in its amended form. I ask the House now to concentrate upon the principles of the Workmen's Compensation Acts to which I have referred, and to consider how those principles have been invaded by the decision in Bevan v. Nixon's Navigation Company. I think the House will see at once why this Bill is one which would reverse the principles and intentions of the Workmen's Compensation legislation.

The principle of the Workmen's Compensation[...] has been that a man who is injured in the course of his employment should gel compensation along certain lines, wherever that injury resulted in his being able to earn less money than he was able to earn before the accident. As far as I know no one has ever quibbled with the position that. the loss of wages must be due to the injury. Where has the difficulty arisen? That has always seemed to me to be a plain statement capable of very easy application. Unfortunately, two phrases in the Bill have given rise to difficulty. One is the. phrase "able to earn" and the other is the phrase "due to the injury." In my humble submission it is because the highest court in the land went astray in the definition of these two phrases that the difficulty has arisen. In the first place, they said that the phrase "able to earn" was limited to physical ability to earn and left out of account the fact that ability to earn must, if it is going to be properly provided for, include ability to get the work at Which the man can earn the wages. That was the initial difficulty. The second difficulty was that they narrowed down the words "due to the injury" and said that those words excluded a number of considerations which they held to be extraneous. One of those was the condition of the labour market.. Again, in my humble submission, they went wrong in the way in which they applied even that exclusion to particular cases.

Let us see what actually came about in the case of Bevan v. Nixon's Navigation Company. There you had a man who had been capable of doing his full work as a miner and had worked as a miner before his disability came about. The man was then quite unfit to do the work of a miner, but he was able to do a considerable amount of light work on the surface. At the time when his case came before the county court judge, there would hive been plenty of work for him if he had remained in his old grade as a miner—die would have been in full work and earning full wages—but in the very restricted area of light work he could not get employment because there was a very small demand for light work. The House of Lords said, "Oh, but 'light work' is really a sort of recognised phrase, and he is physically able to do light work. If he got it, his wages would be so much, and therefore he must be taken as being able to earn that Which he could have physically earned had there been the work for him to do."

Lord Shaw pointed out, very definitely and clearly, that that left out of account the fact that the man had been taken from a large area of employment into a small and restricted area, and that one of the results flowing from the disability which made it impossible for him to earn as much, and to earn at all in that ease, was the fact that his grade had been completely altered. It seems to me that Lord Shaw was right and that those who dealt with the matter in the other way—


It seems to us he was wrong.


That interruption is wholly irrelevant. I am dealing, I hope seriously, with a very serious matter, and I hope the hon. Member will keep from wholly irrelevant interruptions. The difficulty arose from a decision of Lord Justice Moulton, which my hon. and learned Friend, who spoke very movingly and truly on this matter a moment or two ago, pointed out. Lord Justice Moulton said, "If you get a man and degrade him from the rank of a skilled fitter to the rank of a common or garden fitter, all that you have done is to make him now capable of earning the earnings of an ordinary fitter instead of those of a skilled fitter." That is all very well. If there is as much demand for ordinary fitters as for skilled fitters, and as much chance of getting employment, that may be the true standard, but if the position is that for every dozen skilled fitters that are wanted only one of the others is wanted, then he has a very much smaller chance of employment and there will be times when he is out of employment altogether. That is a result of the injury just as much as anything else, but Lord Justice Moulton laid down the matter in that way, and the House of Lords adopted his decision with two definitely dissentient judgments.

The House of Lords also said that where a man is in some recognised grade and there merely is a less wide demand for people in that grade, the man who cannot get employment in it is unable to get it merely because of market conditions and nothing else. But it left out the all important preliminary calculation that the fact that he was in that grade was a result of injury in his employment. Quite apart from all that, and while that decision has been acted upon, there is another type of decision, curiously enough, where the fact that a man is put in a less favourable position is regarded by the courts. Where you get a man who is so reduced by his injury that he can only do odd jobs, as to which there is no recognised grade, in his case, if he proves that there is no market in odd jobs, he can get compensation—and is was to some extent for that purpose that the Section which we are being asked to amend was passed—on the basis of total incapacity.

The difficulty has arisen, not from any questioning that the right to compensation is dependent upon the difference in earning power being a result of the accident, but entirely because of the wrong way in which the preliminary considerations have been regarded by the courts; and surely the way to put that right would be to take care in future that everything which is a real consequence of the injury is taken into account. If you do that, you have done everything which can be reasonably asked, unless you say that we must alter the whole principle upon which workmen's compensation is based.

My hon. Friends who have spoken from the other side of the House were very careful in their speeches to use the words "result of the accident." The Mover of the Bill, who made a moderate and convincing speech, was very careful to use those words; the Seconder certainly adopted thorn; and the hon. Member who has just sat down on the other side also used them, because obviously that is the principle, but curiously enough that is the one thing which is left out of this Bill altogether. The original Act laid down this very carefully:— If a workman who has so far recovered as to be fit for employment of a certain kind proves to the satisfaction of the county court judge that he has taken reasonable steps to obtain and has failed to obtain such employment, and that his failure to obtain such employment is a consequence wholly or mainly of the injury, lie shall order"— and so on. I think it may very well be that if those words "wholly or mainly" were left out, a great deal of this difficulty would not have arisen. If you pass this Bill, you leave out altogether the question as to whether the failure to obtain employment is a result of the injury. That consideration is even left out of the proviso which you put at the end of the Bill. That proviso is not appropriate to a Workmen's Compensation Bill at all. It is only appropriate to an Unemployment Insurance Bill, because if we are going to have something appropriate to this Bill, surely, as it had not been mentioned before—I will conic to the question of whether or not this is the right method of doing it in a moment—if those responsible for this Bill wanted to retain the principle that the failure to get employment should be a result of the injury, they could have said: Provided also that no such order shah be made if it is proved to the satisfaction of the county court that the workman has not taken all reasonable steps to obtain employment as aforesaid, or that his failure to obtain employment is not a result of the accident, but that is left out, and if this Bill were to pass in its present form, the position would be that if a man proves to the county court judge that he has had an injury, and that since that injury he has not been able to obtain employment, although he has recovered so as to be fit for work, then that man is to be considered by the county court judge as incapacitated as a result of the accident, unless the employer is able to prove that he has not made reasonable attempts to get work. That, clearly, has got rid of the whole principle of workmen's compensation, and it cannot be defended unless you say perfectly frankly that we are not going to bother in future as to whether the man's inability to get employment has anything to do with the accident or not. If you say that, you had better say so in so many words, and not do it under the guise of a Workmen's Compensation Act.

That is the position, and if hon. Members opposite really wait to deal with this question, as their speeches suggest, this is not the most perfect way to do it. Even if they said in their Bill that the workman who has so far recovered as to be fit for employment of a certain kind as the result of the accident, fails to get such employment, they would, at any rate, be keeping to the principles, but they have been extremely careful throughout the whole of this Bill to leave out anything which would necessitate proof of any kind that the inability to earn wages was the result of the accident. I do submit, in these circumstances, that this Bill is quite contrary to the expressed views of the promoters. There is one other matter with which I want to deal. During the time that my hon. and learned Friend was speaking, ho was interrupted from the other side of the House by an hon. Gentleman who said, "But you are putting the onus on the workman."


I did not. I simply asked if that were so.


But that would put the onus on the workman. I certainly gathered that the interruption was for the purpose of indicating, at any rate, that in the mind of the hon. Member who interrupted the onus should not be put upon the workman.


The hon. and learned Member is going too far now. I was simply asking for my own information. I did not know whether the onus of proof was on the workman or not.


I am surprised that my hon. Friend takes up that position. [AN HON. MEMBER "He was asking a question."] I am not grumbling. He made an inquiry, and he has, therefore, very carefully and properly refrained from saying that that inquiry indicated any view on his part. The effect of the Clause is to put an onus upon the employer in very peculiar circumstances, namely, to put an onus upon him where the workman has not even shown that his inability to earn wages has anything to do with the accident from which he suffers. How can that possibly be put in the Bill? Apart from that, it is clear that the object of the promoters as expressed in the Bill itself, is to change the onus of proof. Otherwise, I do not know why the words in the original Section have been left out, because these words have nothing whatever to do with the decision in the case. I do not know why, if their purpose is merely to correct the decision, they should have left out the words that failure to obtain employment was a consequence of the injury. The very fact that they have left them out shows perfectly clearly that they are trying to relieve the workman from the duty, which he has always had, to prove his case, just as every other litigant has to prove his case.

Here is a man asking for compensation. He is asking for it under a Statute which says that he is entitled to it if his earning capacity is taken away as the result of an accident. Surely you are not asking him to do anything which is wrong when you ask him to prove that his loss of earning capacity is due to the accident? That has always been the principle of workmen's compensation. If this Bill passes, that principle goes for ever in the Workmen's Compensation Acts as far as concerns the man who, thereafter, is unable to obtain work, and if you take the effect of it, it is still more serious. In Tannoch's case, as I read that case, three out of four Law Lords held that the words "employment of a certain kind" were capable of being interpreted as the man's original employment. That is implicit in the speeches of Lord Thankerton and Lord Dunedin, and it is almost equally clear in the speech of Lord Warrington.

That is the position. That would be the definite result of passing this Bill. Translated into plain English, instead of the English about which there has been some doubt in interpretation, it would read in future that if a workman, who has so far recovered from an injury as to be able to resume his old employment, shows that he is unable to get such employment, then it should be deemed by the county court judge that he is unable to earn wages, and that his incapacity for the purposes of the Act is total incapacity resulting from the injury. Anything more calculated to create injustice, anything more calculated to make workmen's compensation a complete farce it is impossible to imagine. If this Bill were passed in its present form, the effect would be definitely to substitute for workmen's compensation a system of unemployment insurance applicable to men who, at some time or other, had been injured, and put the whole burden of that unemployment insurance upon the particular employer who happened to employ him at the time he was injured.

I cannot think for a moment that that is the real intention of hon. Members opposite, but it is the expressed intention put into their Bill. If there is a clear indication from the other side of the House that they are prepared to consider Amendments to the end that they have suggested is the real end of this Bill, namely, to do away with the injustice caused by a decision of which we all complain, if they are prepared so to amend this Bill as to bring back—[Interruption] —I hear an hon. Member opposite say "You would leave things as they are." If he had done me the justice of listening to what I had said, and had followed what I had done in this House in connection with workmen's conpensation, he would know I have striven on every possible occasion within the principles of workmen's compensation to make it as complete as it possibly could be made.


I was on the Committee which dealt with a predecessor of this Bill, and I have not forgotten that the hon. and learned Gentleman fought very strenuously for that which would have left the position of the injured workman exactly as it is to-day.


All I can say is that all my hon. and learned Friends who have gone into the matter have expressed the view that if my Amendment had been adopted the purpose of the Bill would have been carried out without any alteration of the principles of workmen's compensation. What has happened is that certain judges have altered the position to which we want to get back. If the Government will indicate that they are prepared to accept Amendments which will bring about, and give due effect to, the principle which I have enunciated, then, as far as I am concerned, I shall not press my Motion for the rejection. On the other hand, if they want to provide compensation where the loss of earnings is not due to the accident, as in the Bill in its present form, I, for my part, must vote against it on every occasion. The one principle is clear. We do not want to whittle down the workmen's compensation law of this country to provide for every man who, as the result of an accident in the course of his employment, is lowered in his earning capacity and is earning less wages that he did before. The workmen's compensation law of this country should. provide for that, and it will not be complete until we have put right judicial decisions which have been given.

Major GLYN

I beg to second the Amendment.

I have listened with great interest to my hon. and learned Friend who has moved the rejection of this Bill, and I am certain that there is a general understanding in every part of the House that those of us who support the Amendment do so more on technical grounds than on grounds of sentiment and what we believe is desirable. There is a general feeling among everybody Who knows anything about industry that at this time we must not impose fresh burdens on industry. This Bill in the way in which it has been drafted will not necessarily cure the evil which we want to see cured, and yet there is not a single Member but who desires to alter the results that have flowed from the Nixon's Navigation decision. We want to keep the question of compensation distinct from the question of unemployment benefit insurance. As I understand it, after taking the best advice I could find, it means that if a man were employed by a firm and suffered an accident and recovered, and was subsequently employed by another firm in a capacity similar to that in which he was engaged when he had the accident, and was discharged from the second firm owing to bad trade, he could come down on the first employer to pay him total incapacity benefit. He could not draw that as well as unemployment benefit, but he could have his choice of whichever was the greater, and draw it from the original employer, although quite clearly the accident had nothing to do with the subsequent employment.

No hon. Gentlemen opposite, especially those who have dealt with trade union matters throughout their lives, desire to see a collusion between unemployment insurance and the real merits of workmen's compensation. The hon. Member for North Lanarkshire (Miss Lee) made some disparaging remarks about one branch of industry and trade, but in my experience all good employers recognise that they have a moral obligation to a man when he suffers injury in their employment to do their utmost to see that the man is retained in their employment. You will never get happy relationships between those who work in industry and those who manage it unless there is understanding and fair play; and it is obvious that all great corporations have the desire to employ a man or woman who has suffered as the result of his or her employment and has been reduced to a lower earning capacity as a result. As in the ease quoted by the hon. Member for. Eastbourne (Mr. Marjoribanks), if a man is in a highly skilled category of trade—such as spectacle making—and a splinter of glass enters his eye so that he can no longer follow that highly-skilled and restrictive occupation, he goes into the wider field of employment and gets, under the Workmen's Compensation Acts, partial benefit to com- pensate him and to bring him up to that level of pay which he has lost through no fault of his own.

There is one aspect of this matter which we have seriously to consider. There are three forms of accident, and, under the law as it stands, the employer is liable—and I do not quarrel with it— for each form of accident. There is the accident which is due to the negligence of the employer in protecting the worker engaged on his work by providing devices calculated to give extra safety. There is the form of accident due to the carelessness of the workman through familiarity breeding contempt, and through his not using all these devices; that is not the fault of the employer, but the employer is recognised as being liable under the Workmen's Compensation Acts. Then there is the form of accident which nobody can avoid, the real accident which is a mischance and for which it is hard to account. These three forms of accident are all taken into account by the law. But what will be the effect of this Bill if it becomes law? An employer who has in his work a man who suffers from an accident due to his own carelessness or negligence has to pay not only compensation but possible unemployment benefit as well. Is it to be laid down that we will not do something to encourage the workpeople to use the safety devices? If we do not, I am afraid that we shall find the proportion of accidents in certain trades increase.

There is a heavy toll of life and injury in certain trades in this country, such as the mining and railway industries, and tremendous safeguards are imposed by law in order to protect life and limb. This Bill will not help us to bring the compensation which we wish to see to workers who are injured, and it will cause an enormous amount of litigation. It will impose a tremendous extra financial burden on industry, because the attitude of the insurance companies will be that the risk is increased by this Measure, and that therefore the premiums will have to be increased. That will mean that all the great basic industries will have to put an extra charge on to their budgets and as at this time it is with the utmost difficulty that works can be kept going, the present is not a fit occasion on which to run any risk of passing a which does but little to meet the par- ticular case about which we all agree. It will open the floodgates of litigation, and will probably mean that employers will be liable for very much larger sums as "compensation", which will not be a real compensation for injury but a kind of alternative form of unemployment benefit.

We have in industry a situation where it is essential that we should have the strong co-operation of trade unions with the managements. I am one of those who believe that the real future for industry in this country lies in organised labour working as a partner in industry, If things are occurring which are thought to be unfair and unjust, an atmosphere is produced which does not conduce to good work or success in any enterprise. It is vital that we should get rid of the effect of the judgment of the House of Lords in the Bevan v. Nixon's Navigation Co. case, but I think it ought to be done by some other means than this Bill which will not achieve the object we have at heart. We could pass without dissent and without delay a Clause so amending the 1925 Act as to make it perfectly clear that we desire the law on workmen's compensation to lay down once and for all that any workers, men or women, who suffer injury as a result of their employment, and cease in consequence to be the same useful units in the industrial organisation of the country, shall be compensated for that injury.

We do not believe it is right to say that every employer shall be responsible for seeing whether or not such a person has genuinely tried to seek work or not, because we do not regard that as being fair either on the worker or on the employer, and it will not lead to happy relationships between them. If we are to deal with unemployment it should be through the unemployment insurance legislation, which should be put on a proper actuarial basis. Then we should see how these other things could work. It is like putting the soldiers in Noah's ark and playing with them on a Sunday when we have been forbidden to do so if we try to pay compensation to people who cannot get employment by pretending that their failure to get employment s due to injuries caused in a particular firm's employ. I hope that at this juncture the House will not pass a Bill which will increase the burdens on industry, but try in this matter to be a council of state, putting aside all party prejudice; honestly, I do not think it arises here, certainly it does not enter into my mind. I wish to see some code laid down under which workers' compensation will be real compensation and not made a subterfuge and a means of giving an extra form of benefit to a person who cannot get employment in his particular trade.


In rising to support this Bill, the only one regret I have is that it is no more omnibus in character, sufficiently wide to provide amendments for many other Sections of existing Acts of Parliament. Those of us who have had something to do with the administration of this legislation know that there are many anomalies in the existing Acts, and that those who apply to the Courts for compensation because of injuries sustained by them are crying aloud for such a Bill as I have indicated. However, I should be called to order if I sought to enlarge upon that particular point. I wish to support this Bill, and in so far as I am doing that I am speaking against the Amendment. When the first workmen's compensation Measure was introduced into this House and taken to another place, the Lord Chancellor of that day, the late Lord Halsbury, said it was drafted in popular language, meaning thereby that it was drafted in such simple language that it would be quite easy for any man in the street, any layman, to understand the terms of it. I suggest. however, that no Act in the history of this Parliament has provided more ground for litigation than that Act, and when one recalls the observation of Lord Halshury one is tempted to wonder whether some other language should have been used instead of "popular language."

The hon. and learned Member for Norwood (Sir W. Greaves-Lord) uttered observations in reviewing the earlier part of this legislation with which I thoroughly agree. Indeed, there is very little in which I disagree with him, except in the concluding part of his speech. He indicated that under the terms of this Bill it will be possible for a workman, simply because he has sustained an injury, although he may have wholly recovered from that injury, to go on receiving compensation. I suggest that is not quite the position. A workman who goes into Court seeking compensation must in the first place prove that he has sustained an injury arising out of and in the course of his employment, and he must prove that that injury has resulted in loss of wage-earning capacity. That is fundamental to his claim, and unless he proves that he cannot possibly get compensation. It was said by the hon. and learned Member that the first Clause of this Bill read: If a workman has fully recovered from the injury. Those are not the actual words, however. What the Clause says is: If a workman who has so far recovered from the injury. That means that the man has not yet fully recovered from the injury, and that is not the position which was elaborated by the hon. and learned Gentleman. The onus of proof remains on the workman. Let me assume that a workman goes to the courts seeking compensation. He has to prove that he is still suffering from the results of the accident, not that the results of the accident totally incapacitate him. One knows from experience that numbers of people go into the Courts with some wage-earning capacity. It may be they have lost a limb or an eye—more generally lost a limb—and they satisfy the Courts that they are still suffering as the result of that injury, satisfy the Courts that they still suffer a loss of wage-earning capacity as the result; but by reason of the decision in Bevan v. Nixon's Navigation Co., and of a decision that preceded it, it is competent for the county court judge to assess that. man's wage-earning capacity although he may have lost a leg or an arm. The judge may come to the conclusion that the man is able to do a watchman's job, a caretaker's job, a lampman's job in a colliery, or such similar work. Very often such a man's wage-earning capacity is assessed at a round figure of £2 a week. From a practical standpoint we know that that man's wage, whatever his capacity, is overassessed at £2 per week, and by virtue of the Act of Parliament all that. the county court judge can give is half the difference between £2 and what may have been the man's pre-accident average wage. We all know that since 1922 and 1923, speaking generally, the average working man's pre-accident wage was somewhere in the neighbourhood of £2 10s. or £2 12s. per week. Such a man goes away from the court with an award in his favour of 5s. or 6s. per week. It is perfectly clear that it was never the intention of the Legislature that a man in that condition, with a leg or an arm missing, should be compensated to the extent of only 5s. a week. It is because that state of things prevails at the present time that I am supporting this Bill.

I cannot agree with the. lion. and learned Member for Norwood, who said that an intolerable burden is put upon the employer unless he is in a position to offer that man work. We know from experience that every industry in this county, and every section of industry, is carrying these industrial victims. If a man he injured in a colliery owned by a particular company, and if he be injured to the extent which I have described, it is futile to hope that that man will be able to go to another colliery seeking work with any prospect of obtaining it. In those circumstances a workman receives only 5s. or 6s. a week, and what are the inferences to be drawn from that.? If a man has lost a leg or an arm, very naturally it may be found against him that he has a wage-earning capacity. That man goes into the labour market seeking employment., and he fails to get employment. It has been said very properly by Lord Atkin in one ease that the only inference to be drawn in those circumstances is that the man has been unable to get work because of his maimed and injured condition, and it is ridiculous to expect that a working man should be called upon to bring up those employers from whom he has sought work, and who have been unable to give him work because of his injured condition. That is the main reason why this Bill has been introduced The last proviso in Clause 1 deals with the difficulty to which reference has been made, and it says: Provided also that no such order shall be made if it is proved to the satisfaction of the county court that the workman has not taken all reasonable steps to obtain employment as aforesaid. Hitherto the onus of proof has remained upon the shoulders of the workmen. It is the workman who goes to the court to claim compensation; he has to make out his case, and he goes into the witness-box. So far as the examination-in-chief is concerned, the workman has to adduce evidence to prove that he has been elsewhere seeking employment. If I were appearing on behalf of the employer, my first objective would be to elicit from the workman what steps he had taken with a view to getting employment. Of course, a workman, although the onus is not cast upon him in answer to questions put by counsel on behalf of the respondent, would have to give information as to where he had been seeking employment from time to time. If the court had any doubt, that doubt would go against the employers, in so far as the onus would be upon them of proving that particular point. The opportunity for proving that point would be provided by virtue of the fact that the workman would be still in the witness-box claiming compensation. I think the hon. and learned Member for Norwood has magnified the difficulty which the employer will have to contend with. That is the only substantial point which the hon. and learned Member made in his speech, with which I disagree, and the only point in which he has shown the difference in his mind from the position taken up by the promoters of this Bill. I see no difficulty in the application of this Bill, and, if I may say so, I speak as one who has had some experience in the administration of the present Act of Parliament.

I would like to make a reference to what was said by the hon. Member for Eastbourne (Mr. Marjoribanks), who dealt with the retrospective nature of this Bill. The Measure seeks to amend Section 9, Sub-section (4) of the present Act of Parliament, 'and Section 9, Subsection (4) is a re-enactment of Section 16 of the Act of 1923. We all know that Section 16 of the Act of 1923, by virtue of its terms, was of a retrospective nature, and Section 9, Sub-section (4), as it stands, also has a retrospective character. If that be so, why should this Bill not have a retrospective character, because there is nothing alarming in that? If a man suffers from injuries, and if his prospects in the labour market are restricted by those injuries, I see no reason why this Bill should not be retrospective in the same sense as the Section which we are seeking to amend, and in the same sense as Section 16 of the Act of 1923. I reiterate my hope that this Bill will become the law of the land, and my only regret is that it is Not sufficiently omnibus in character to remedy more of the defects in previous Acts of Parliament dealing with this subject.


The date of the original case of Bevan v. Nixon was 25th July, 1928, and my Bill was introduced on the 31st July. Consequently, there was not very much delay. Already four ploughs have been working in this field, but up to the present there has not been a very abundant harvest. I should like to make an appeal to the hon. and learned Member for Norwood (Sir W. Greaves-Lord), who has moved the rejection of this Measure, and recall to him the attitude which was taken up by the last Government and by the Noble Lord the Member for Hastings (Lord E. Percy), who approved of the general principle of a Bill of this character, and appealed to the House to allow it to go into Committee. I am sure that no one speaks with more authority on these questions than the hon. and learned Member for Norwood, but I think that many of the points which he has raised might very well be dealt with in Committee. The hon. and learned Member wishes to know what kind of Amendments the promoters will be prepared to accept in Committee, but it is rather difficult to indicate now exactly what Amendments they would be prepared to accept. I can assure the hon. and learned Member that the promoters will not take up a hard and fast line, and declare that they are going to adhere exactly to the words which have been nut into the Bill. They will, of course, be ready to consider suggestions, and suggestions coming from high legal authorities on a legal matter will be worthy of the greatest respect.

There are one or two suggestions, however, with which I think we need not encumber our minds. The hon. and gallant Member who seconded the rejection raised the scare that we should be putting up the insurance rates against industry. I would like to ask whether, after the decision in Bevan v. Nixon's Navigation Company on the 25th July 1928, when this great burden was lifted, as we are to suppose, from the insurance companies, they put their rates down Is there any evidence of that at all If not, I fail to see why we should suppose that they are going to do so. I do not mind the question being put forward about the burden of proof. It has been put as a defect in the Bill that it was going to take the burden of proof away from the workman. The promoters of the Bill may not agree that that is a defect I am perfectly certain that I did not. I said in terms that the trouble about the legislation which I was trying to remedy was that, instead of putting upon the workman the obligation to prove his incapacity, it put upon him the obligation to prove that the incapacity was the consequence of the injury, and, as a matter of practice, it was extremely difficult for him to bear that burden. I therefore, desired to shift it. This burden, in the first place, will always be upon the workman with regard to the original injury, but a time comes in the history of the accident when I think the burden should be shifted to the other side, and I am not in the least afraid of that criticism of the Bill.

1.0 p.m.

I think, however, that the hon. and learned Member for Norwood, when he was talking about the possibility of putting upon the employer the liability for a workman who had wholly recovered, was not raising a false point; it is a point that will have to be dealt with. I quite agree with the hon. Member opposite as to the interpretation that ought to be put upon the words "so far," and I think that his interpretation is perfectly sensible and intelligible. Perhaps it is for that reason that it has been rejected by the majority of the judges. That is the trouble. The judges in any case have to give their interpretation, and we have to look very carefully at the interpretation which the judges have put upon the words of this Act. For the same reason I think that the promoters of the Bill have acted not unreasonably in being very shy of putting into the Bill words saying that the injury must be specifically the result of the accident. I do not wonder at their being shy on that point; I was myself. In the case of Bevan v. Nixon, the whole question was that the majority of the judges put upon the words "the result of the accident" an interpretation which we all believe to be wrong except the hon. Member for Spennymoor (Mr. Batey), who was a voice crying in the wilderness. He declared suddenly, to my great surprise, that Lord Shaw was wrong. He is alone in that belief, and I think that his interjection must have been an inadvertence. The rest of us agree that Lord Shaw was right. In the report of the case in the "Weekly Notes" there are these words: In the opinion of the minority, the appellant was by the accident alone excluded From a grade where no adverse labour conditions precluded him from earning wages. That was the minority's interpretation of the words "the result of the accident," and, if that interpretation had prevailed, we need not have been here discussing this matter to-day. Unfortunately it did not prevail, and surely the hon. and learned Member for Norwood will appreciate that, that being the case, we are all extremely nervous as to the effect of putting the words "the result of the accident" into any Bill that we frame, because what the House of Lords misinterpreted once it may misinterpret again. Indeed, I think that the interpretation would still stand as good law, and would have to be followed. Therefore, we have to meet that difficulty. I am not. pretending that it is necessarily met completely by the words in the Bill, and the matter will have to be considered further. I am certain, however, that it would not be met by merely reintroducing ambiguous words about the result of the accident which are the cause of the trouble, and, therefore, the matter must receive careful and patient consideration in Committee, and I hope that we shall then have the assistance of the Attorney-General. I am not complaining of his absence this morning, though everyone complains as a rule of the absence of the Law Officers, but, if he can give us his assistance when the matter comes into Committee, we surely ought to be able to elaborate a form of words which will meet a point upon which we are all agreed, and, in view of our agreement so far, it is surely impossible that the Motion for the rejection of the Bill can be persisted in. We do not often get so good an opportunity of doing quite simply something which will benefit. a large number of people. We come to the House of Commons with great ideals about putting everything right, and find ourselves dealing for most of the time with rather small matters. Some of us would be content if the result of the whole of our Parliamentary efforts and career were to get an Act on the Statute Book which would do a simple piece of justice like this, even if we never did anything else.


In view of the attitude of the hon. Member for West Middlesbrough (Mr. K. Griffith) and of the party opposite, I do not think we need spend very long upon this Bill, but there is an old saying, "Once bitten, twice shy." We had a debate on very nearly the same Bill as this last year, and the Home Secretary said that he quite appreciated the force of the objection that we raised and assured us that there would be an opportunity of putting it right in Committee. Although, however, the very point was put Committee, that opportunity was denied, and all the suggested Amendments directed to putting it right were rejected on the advice of one of the Law Officers of the Crown. Therefore, we want to make quite clear what it is that we object to in the Bill, and I am certain that anyone looking at the matter impartially will agree that our objection is well founded.

We desire, and I am sure the House would desire, to keep quite distinct the two realms of unemployment insurance and workmen's compensation. There are only two classes of cases in which this question can arise. It does not arise on the original application for compensation, because the application comes on while the man is still suffering, and he gets his award of compensation. It arises when the man has got better, and there is an application, perhaps, by his employer to put an end to the award that has been made. There are two cases that we have to bear in mind. The first is that of the man who has "completely recovered. Suppose that he is an engineer who has broken his arm and has been totally incapacitated for a time, but that his arm has become perfectly well—he has completely recovered. That is one case. The other case is where he has recovered as far as ever he will recover, but is not able to do his old work, though he is capable of working in some restricted field. Instead of being able to do work bringing him in, say £3 a week, be is only able to do a certain class of work bringing him in say, £2 a week. In Bevan's case it was a miner who had worked underground and who, afterwards, when he had recovered, was only: it for surface work. In that case the workman's field of operation, or, to adopt the very good expression used by the hon. Member opposite, his labour market, has been restricted, and he is obviously in a worse position than before.

Suppose, however, that a man completely recovers and has no apparent disability which would prejudice a would-be employer against him. Always remember that in both classes of case, although he may be completely or partially recovered, if there is a defect which prejudices the man in the eyes of a would-be employer, he is still held to be entitled to his award. We have only to deal with cases where there is nothing to prejudice his chance of re-employment except, in the case of partial incapacity, a restricted field of occupation. Does anyone really want to include in the Bill a man who has completely recovered? That is my only real objection, that it includes the man who is completely able to do his old work but cannot get it purely because of industrial difficulties. You can take the case of a man who comes back admittedly quite cured and finds his old concern closed down because there is no work to do. His old companions are receiving unemployment. insurance. Is it really desired, when his employers ask to have the award terminated, that he can say, "I am to be treated differently from my companions. I agree that I am as able to work as they are. If the place were open I should find work, but I cannot get work and, therefore. I am to be entitled to workmen's compensation." I raised this point last year and I was told that was not intended, and that words would be accepted to put it right. It was argued just now that the words a workman who has so far recovered as to be fit for employment of a certain kind do not refer to a case where a man was completely recovered. Unfortunately, three out of four Law Lords have determined that it does cover a case of complete recovery, and that is a decision that will bind even the House of Lords itself.


I do not think that case covers a man who has completely recovered, but a man who has recovered sufficiently to do work of a certain kind, though not to earn his full wages.


It covered complete ability to do the old work though there was an apparent defect which, in fact, prejudiced his chances of recovery.


May I remind the hon. and learned Gentleman of what Lord Warrington said in that case, that the man in question had not fully recovered.


They were dealing with the case of a man who was, in fact, completely able to do his old work, but there was an apparent defect—I think the loss of an eye—which prejudiced his chance of getting work, and it had been determined that where there was something that prejudiced his chance of getting work you could not say he had completely recovered. But the point arose, did these words "so far recovered from the injury"—and they are precisely the same words—include the case of fit for employment of the old kind, and it was said that they did. Therefore, these words are covering the case of a man who has completely recovered, who has no defect of any kind, but who simply cannot get work. If it is desired to include a case of that sort, we must fight it. If it is agreed that it is not desired to include a case of that sort, and an undertaking is given that that objection will be met in Committee, I shall be quite sympathetic to the Bill. The promise was given before, but when we got into Committee the Solicitor-General said that in his opinion the words "so far recovered" clearly indicated that only cases of partial recovery were dealt with—in other words, that in his opinion the Law Lords were quite wrong when they said that these words covered complete recovery—and he declined, and on his advice the Committee declined, to meet the point. That is not quite good enough. They may be the Solicitor-General's opinion, but, if it differs from that of the House of Lords, it is really not of very much value to us. There- fore, my first objection to the Bill as drawn is that it would definitely cover the case of a man who has absolutely recovered without any apparent defect at all, but who simply cannot get work.

The second class of case is quite different, the case of partial incapacity with a restricted labour market available for the man. He may be perfectly fit to do work in the restricted labour market, but he cannot get it. That is where Bevan's case decided something which we should like to see changed. The position is different, because there the man is worse off than he was before the accident. Although able to do work, he cannot get it, and his field of operation is limited. His inability to get work has some connection with the accident. The accident has restricted his field of operation, and it is fair to say that he should still remain within the sphere of workmen's compensation, and there is good reason for taking him out of unemployment insurance. That is the main point of difference between us. We are all at one in desiring a Bill which would deal with the last case, but we must be very careful to see that we do not use words which a court of justice would be driven to interpret as including cases where the accident has nothing to do with the inability to get work.

I should like to say a word on the question of the onus of proof. I had not the advantage of hearing the speech of the Mover of the Bill, but in last year's Bill the preliminary onus of proving that the man had taken reasonable steps was left on the worker. What would happen in practice would be that the employer would come along and prove that the man was able to do his work, and then it would be for the man to reply, "I have done my best to get work and I cannot get it." The Bill last year left the burden upon him, because it said, "If a worker who has so far recovered as to be fit for employment of a certain kind, proves to the satisfaction of the judge and the county court that he has taken all reasonable steps to obtain it and has failed to obtain it." That was leaving the burden in the proper place. I do not know why this differs from last year's Bill. That Clause is now taken out, and there is a proviso that the burden must be on the employer to show that the man has not taken all reasonable steps. After all, the steps taken are within the knowledge of the man; they are not within the knowledge of the employer, and it would seem a very difficult thing for the employer to say: "We have had this man examined, the doctors say he is absolutely cured, and fit for work of a certain kind," and then call evidence. You may never get the workman into the box. Then the county court judge under the Bill would say: "You have to prove more than that. Before you can ask me to reduce the award, you have to do more than prove that the man is capable of work of a particular kind. You must go on to satisfy me that he has not made all reasonable efforts. Until you have done that there is no case for the workman to meet." Is that a reasonable position? I do not think that it is. The reasonable thing is for the workman to say: "Well I agree I am fit, but I cannot get work. I have been to many places, and there is no work available." I can see no reason whatever why this Bill has been changed in that respect from the Bill which was brought in last year. It is a matter which can properly be dealt with in Committee, and it is not reasonable to oppose the Bill on that ground to-day. The other point which I have mentioned is essential, and unless it is clearly understood that words will be put into the Bill making it clear that it does not apply to cases of complete recovery I regret that I must press the Amendment far the rejection of this Bill.


I should have been more content and comfortable if there had 'been no Amendment before the House for the rejection of this Bill, and I should also have been disposed to place more value upon the speeches of the hon. and learned Gentlemen opposite than I am able to do at the moment. For the life of me I cannot understand how it is that notwithstanding that we have Members of all parties in this House stating that it is desirable, or necessary, that a Bill to remedy the defects of the law in relation to workmen's compensation should be accepted and passed into law, this is the fourth time an attempt has had to be made to pass such a Bill. I sometimes wonder whether, in the use of all these legal phrases, you do not really lose sight of the human element. It is simply a quibbling of words, words and nothing but words. Does it mean this, or does it mean that? We should fix our minds upon the defect which we want to remedy.

Hon. and learned Members opposite have been saying: "Do you mean to shift the onus of proof from the workmen on to the employer or the insurance company? I say definitely, "Yes." There is no room for doubt upon the matter at all. Legal gentlemen may plead well in the courts, but they know nothing of the real facts and the circumstances that call for the shifting of the onus of proof. The law says that a workman injured by following his occupation is entitled to compensation. The workman must, first of all, establish that fact. I do not know of any case which has been adjudicated upon as a partial compensation case in the first instance. A man is incapacitated because of the effect of an accident. As time goes on, the employer or the insurance company will say: "We now believe that this man is sufficiently recovered as to be able to perform some kind of employment." It is for them to take the man to court and not for the man to take them to court. If the court or the referee decides that a man is capable of following a certain kind of light employment and compensation is reduced in consequence, surely, in the first instance, the responsibility should be upon the employer, through the insurance company, to say: "This man is not only fit and capable of performing light employment, but there is such light employment available for him." If there is not suitable employment available, what becomes of this more or less human derelict?

The hon. Gentleman the Member for Eastbourne (Mr. Marjoribanks) uttered a sentiment with which I entirely agree. He said that you give these men the full blast of the open sea and that consequently something ought to be done to assist them. I would add, that you do not expose them to the full blast of the open sea of competition for employment fully equipped and able to withstand or fight against the blast. It is equivalent to sending out a crippled ship to face a storm in the open sea. If able-bodied men, well equipped, find it difficult now-a-days to weather the storm in the competition for employment, how much more difficult is it going to be for the man who is partially incapacitated from following his employment? It is said, in the case where a man is described as being cap- able of following a particular form of employment other than his original employment, that when that man subsequently comes back to the court and asks for the restoration of his full compensation he must be able to say—and, indeed, they compel him to do so—that he has searched for a particular kind of employment and has failed. A legal argument as to the extent of his incapacity goes on sometimes quite apart from that fact.

I know of cases where men have been severely burnt at blast furnaces or who have been incapacitated while working in other heavy industries and have been certified as fit for a light job at a weighbridge in an area where perhaps there would only be 20 such jobs within a ten miles radius and each being already occupied by a man on partial compensation. A man must trudge along ceaselessly in order to be able to say to the court, "I have tried and I have failed." And now you have the position that even this obligation is not sufficient. The court will say: "You would have succeeded had the labour market been more fruitful. Had there been a greater demand for weighbridge attendants and the works had been more fully employed, your chances of employment would have been greater. Consequently, while you have proved your search for that particular job and such a job is not available, we will now refuse the restoration of the full compensation payment on the ground that it is not merely a case of a job not being available but a ease of a job not being available owing to the state of the labour market." Surely, employers should be called upon to show that there was suitable occupation available for such persons before denying them the measure of compensation to which they ought to be entitled.

It is said, "How can you do this without placing an increased burden upon industry." This is a further reason why the onus of proof should be placed upon the employer. Some employers will not employ a person partially incapacitated for the reason that it would mean a greater risk to them and because the insurance companies upon the renewal of the insurances might increase the premiums because of the increased risk occasioned by perhaps too many partially incapacitated men being employed.

The employers will tell you, quite frankly, that they cannot carry that risk because it affects their insurance rates. We have no right to leave ourselves open to the possibilities of court decision of the kind of which we complain. Take the case referred to by the hon. Member who moved the Second Reading of the Bill, that of Barnes v. The London and North Eastern Railway Company. In that case the county court judge decided that there was not total incapacity, on the ground that the whole field of work for a one legged man was open to the man, and he further decided that the workman had not proved that he had failed to get employment wholly or mainly on account of the condition of the labour market. In that case the man only received compensation on the partial incapacity basis. That decision was upheld by the Court of Appeal. A case of that sort is a clear and sufficient reason for supporting the Second Reading of this Bill. A man loses a leg and he is told: "You are only partially incapacitated. The whole field of employment for a one legged man is open to you." What chance has a one legged man to find employment at the present time when there are so many men fully equipped with their limbs who cannot get employment? On that decision the man's earning capacity is assessed as that of a one legged man and his compensation is reduced to half its estimated full value. No judge ought to have a law at his disposal capable of such a construction being placed upon it. That is the human side of it. You may have all the legal eloquence you like but when you boggle in a case of this sort you are really straining phraseology.

One thing that has surprised me to-day has been statements by members of the legal profession on the opposite side that they desire to get such a wording of the law as will make it watertight and prevent litigation. That is the first time that I have heard the legal profession advocating a course which would remedy a defect in the law, and doing it on the ground that they wish to see no further litigation in compensation cases and full justice done to the injured workman. It makes one have second thoughts on much of what was said.


They are not genuinely seeking work.


In another case, Mothersdale v. Cleveland Bridge Engineering Company Limited, which was decided on 8th January, 1930, so that the trouble does not go back merely to the Bevan case, a blacksmith's striker had his right arm amputated above the elbow. The county court judge found that the workman had taken all reasonable steps to obtain employment but that his failure to obtain employment was largely due to the state of the labour market in Durham and was not a consequence wholly or mainly of the injury. He further found that the workman had so far recovered as to be fit for the kind of employment suitable for a one armed man and that consequently it was not what was described as a hard loss.

Here is a case of an arm being amputated and a blacksmith's striker being thereby cut off from any similar occupation for all time. The judge was satisfied that the man had tried his utmost to get employment but his failure was due to the state of the labour market and not wholly or mainly to his injury. To a layman that is an illogical position. In the first place, the arm is missing, secondly, the man had tried but could not find such employment as a one armed man might be able to do, thirdly, he had not been able to get such employment because of the state of the labour market and, fourthly, he could not justify his case for the restoration of his compensation because the judge held that the whole field of employment for a one armed man was open to him. What else must a man prove before he can get a fair measure of compensation? That shows the absurdity of talking about a class of work which is open to a man who has met with a disability of that character.

In the case of Mears Brothers v. Davies the workman was a labourer and his compensation was reduced on the evidence of a doctor who said that the man might do watchman's work, or such work as the cleaning of motor cars. The Court of Appeal upheld this decision. Imagine a man in such a state of physical disability that the doctor, the medical referee I suppose, said that he was capable of doing the work of a night watchman. Night watchman's work is usually looked upon in compensation cases as one of the lightest forms of employment—I disagree on that point—and in this case it was held that the man was capable of such work or of performing work in a garage, such as cleaning motor cars. The employer sought a reduction of compensation. In cases of this kind they are not able to make a suggestion that there is any such work open for the man.

Many cases have arisen where the man has been certified as fit for light work on the level and compensation has been reduced. If an operative in the building trade is injured the light work for which he is said to be suitable is "something on the level." If he falls from a scaffold the nature of his incapacity is dizziness and it is the same if he has received his injury whilst working in a depth. The class of work which it is said is suitable for them is something on the level. I ask any hon. Member, or any lawyer with all his clever phraseology, if there is any such thing in the building trade as a permanent occupation on the level. There are always the great heights or the great foundations; and a man who cannot be trusted on a scaffold or down below because he may be a danger to his mates is equally a danger if he is employed on the level.

On four occasions this House has agreed on the principle of this Bill. We want to find a remedy. It is something like the parent who, after thrashing one of his boys, says, "I am sorry for you but it hurts me more than it hurts you." Evidently it hurts every hon. Member of this House to know the suffering caused by an unjust law. Here we have an opportunity on a private Member's Bill of discussing the question free from all political ties and where no political issue is involved. We are all agreed; but there is always the eternal "buts", and "ands" and "ifs." I hope the Motion for rejection will be withdrawn and that the House will be unanimous in sending this Bill to Committee upstairs and that ultimately the Government will grant facilities for its further progress on to the Statute Book.


Almost every hon. Member who has taken part in this debate has referred to this Bill as being a hardy annual. The last speaker did so, as well as the Mover and Seconder of the Motion. It is true that each year we have the same type of speeches made by the mover and seconder and supporters of this Measure and we have the same arguments brought to bear in opposition to the wording, not to the principle, of the Bill by hon. Members of the legal profession especially, many of whom sit on this side of the House. The mover of the Second Reading to-day made an appeal that it should be considered in a non-party attitude. I am in complete agreement with him. It is the duty of everyone, when we are considering the case of a workman who has been incapacitated possibly through no fault of his own, not to bring party views into play at all in considering the justice which should be meted out to that man. In spite of the chaffing remarks of the hon. Member for Nottingham West (Mr. Hayday) I maintain in all sincerity that we are all agreed that there is an injustice in the present law and that we are anxious to remedy that injustice.

This is a short Bill of one Clause only; but it makes up for its brevity by being complicated. The complication of the wording and also of certain judgments which have been given in another place has been proved by the dispute which took place only a few moments ago between an hon. and learned Member on this side of the House and an hon. and learned Member opposite. When lawyers fall out with regard to interpretation—[An HON. MEMBER: "Honest men come into their own."]—well, I am prepared to leave it at that. The present position is this. The Act of 1925 provides that a workman who has so far recovered as to be fit for employment of a certain kind and who fails to obtain that employment shall continue to draw total incapacity payment if he can prove two things. First, that he has tried to get a job, or in legal phraseology taken all reasonable steps to obtain employment, and, secondly, that the reason why he cannot obtain work is mainly or wholly due to his injury. We are all agreed that in every case where the accident is spoiling a man's chance of getting work that he should get compensation under the Workmen's Compensation Acts, but that unfortunately is not the case at present owing to the judgments which have been already quoted during the debate. We agree that these judgments should be put right, but some of us on this side imagine, and with some justification, that this Bill goes rather too far. It would undoubtedly bring under the Workmen's Compensation Acts those men who are out of work not because of their injury but who may be out of work because of the general trade depression in the country.

The position was stated twelve months ago by the right hon. Member for Hastings (Lord E. Percy), who described it in this way. A man who worked below ground in a pit was injured and received full compensation under the Acts. He partially recovered, but he was not sufficiently recovered to work underground where there were in fact vacancies, but he was sufficiently recovered to work at the top of the pit where as a matter of fact there were no vacancies of any kind. In a case like that we all agree that the man should undoubtedly receive full compensation as though he was totally incapacitated. Where we differ is here: if the whole of that pit is closed down because there is no work for anyone, we believe that that particular man should receive the same treatment as all the other people who are out of work.


Let us assume that the other men get work. Would the man who is on compensation go along with them? If a pit closes down and all the other men get work somewhere else, what is to be the position with regard to compensation?


The man does not get work at a particular colliery because everyone is thrown out of work by trade depression. I maintain that in such a case the man who is on compensation should be in the same position as the other man. If the other men can get work elsewhere and he is not able to get work because of his injury, of course he should be able to come under the Workmen's Compensation Act. This Bill will give a person compensation under the Workmen's Compensation Act when his unemployment is solely due to depression in trade. That is the only part of the Bill with which we disagree. I want to ask a few questions of the promoters of the Bill, or rather of the Government. It is perhaps little use putting questions to the promoters, be- cause they must be guided to some extent by the decisions of the Government. If in fact the Government are opposed to the Bill as it is drafted, it would be futile for the promoters to continue with it.

I ask the Government whether any estimate has been prepared of the probable cost of the. Bill to the employer if the Bill is accepted in its present form. Last year the Home Secretary, in reply to a somewhat similar question, said that there would be no difference so far as the employer was concerned because he was covered by insurance. But surely if the risk is greater and the cost is greater to the insurance companies, the premiums will be raised and the employer will be saddled with extra cost. What, is the probable cost that will have to be borne by industry? The answer to that question will have some bearing on our decision this afternoon. Is the Bill definitely approved by the Government? I remember last year's experience. We asked the Government then whether they were in agreement with the actual wording of that Bill, and the Home Secretary replied that the wording was not as it should have been. In fact, he said, the Bill did not carry out the intention of the promoters. What happened? The Bill went to a Standing Committee. There the Government stated that as far as they were concerned the Bill was worded correctly, and they had no suggestions to put forward for improving the wording. That having been the case last year, we are entitled to ask the Government what, if any, Amendments they propose to move to this Bill. We are entitled to ask that question now. Will one of the Amendments, if any, that the Government are prepared to accept, be a Sub-section making the Bill non-retrospective? That is an important question because last year the promoters accepted a Sub-section which prevented the Bill from being retrospective. The present Bill states that: Sub-section (4) of Section Nine of the Workmen's Compensation Act, 1925, is hereby repealed. If you are repealing a Section of an Act of 1925, it would appear on the face of it as if what you are putting in its place would become operative from 1925. That would certainly upset many insurance companies and industries. Does the representative of the Home Office agree with the final proviso in the Bill which states: Provided also that no such order shall be made if it is proved to the satisfaction of the county court that the workman has not taken all reasonable steps to obtain employment as aforesaid. The Bill as drafted places upon the employer the liability to prove whether or not a man has been genuinely seeking work. That may be right or it may be wrong, but so far as the unemployment system is concerned, it has been proved to be wrong. In view of their experience with the Unemployment Insurance Acts, are the Government prepared to run the risk of the same difficulties in connection with this Bill. Will the Government consider the suggestion of my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord), who asked for the insertion in line 11, after the word "has," of the words "as a result of the acident." That Sub-section would then read, If a workman who has so far recovered from the injury as to be fit for employment of a certain kind, has, as a result of the accident, failed to obtain such employment. If such an Amendment were accepted, it would go a long way to meet the objections which we have to the Bill as drafted. With the general principle that a man ought not to suffer because of an accident we are all in agreement, but in our opinion a man who has absolutely recovered from the effects of an accident, and who is quite fit, but who is out of work because of the general depression in trade, should not receive compensation under the Workmen's Compensation Acts. We say that it was never intended that he should and I think that this Bill ought not to apply to such a man. Surely, a solution can be found of the difficulties which exist. Many contend that this Bill finds a solution. Others of us say that it does not.

What is the position which the Opposition are going to take up in regard to the Bill? This is a Private Members' day and Members in all parts of the House are very often allowed a free hand on Fridays. There is one party whose Members seem to claim a free hand on Mondays, Tuesdays, Wednesdays and Thursdays also; but we only claim it on the one day of the week, and then, perhaps, we do not necessarily have our own way. We are a very obedient party, though that does not necessarily mean that we do not show an independent spirit. We say that on such an important Bill as this, a decision must be reached by the party as a whole as to whether this Amendment will be pressed this afternoon or not. Personally, I do not wish to divide the House against the Bill, nor, I think, do the Mover and Seconder of the Amendment, if the representative of the Home Office will help us with a solution. If the Under Secretary answers, at any rate some of my questions, in the affirmative; if he gives us satisfaction and covers the points which we have raised, then we are anxious that the Bill should receive a Second Beading and that its details should be thrashed out in Committee. The suggestion of my hon. and learned friend who moved the rejection of the Bill was that if the Home Office gave him satisfaction in regard to his points, he would not press the Amendment to a Division, and with that suggestion we agree.


The hon. Gentleman referred to additional premiums. Is he aware that very large profits have been made by insurance companies from the premiums which are now paid and which in our opinion will cover all liabilities arising under this Bill?


That may be the hon. Member's opinion, but I do not suppose that it is the opinion of the insurance companies. They are quite justified in looking after their own affairs, and probably they know a great deal more about their own affairs than the hon. Member, but that is not the point. If there were any certainty regarding the amount involved, it might be easy for the employers to make up their minds, but, as there is so much uncertainty, that is a reason for asking the Government to give an estimate of what the cost will be.

2.0 p.m.


The subject matter of this Bill is not new to the House, and I think most hon. Members are familiar with the grievance which it seeks to redress in so far as the existing law, or the interpretation of the existing law, is concerned. We have had some excellent and interesting speeches in the course of the debate. The Mover and Seconder of the Motion for the Second Reading made very strong appeals and one could not help being impressed by the cases which they enumerated and which in some measure have given rise to the Bill. Last year a Bill, not in quite the same phraseology as this Bill but very nearly so, received the blessing of the House on its Second Reading without a Division, and T hope, despite what has been said from the other side of the House this afternoon that we shall succeed in securing the passage of this Bill without a Division, trusting that in the Committee stage it will be possible to find a solution of some of the difficulties which have been mentioned. For myself, and I hope this opinion is shared generally in the House, I make no complaint as to the nature of the speeches which have come from some of my learned brethren on the other side of the House during this debate. I was intrigued and to some extent charmed by the speech of the hon. Member for Eastbourne (Mr. Marjoribanks) who indicated that, whatever he felt respecting the terms of the Bill, he recognised that a grievance existed.

For the purposes of my speech, I shall confine myself to what has actually emerged from the Debate. I take it that the House is familiar with the phraseology of the Bill and with what the promoters seek to do. The first point which emerges is that there is complete agreement on all sides of the House, not only that a grievance exists, but that it must be remedied. That view has been expressed by hon. Members opposite including the hon. and learned Member for Norwood (Sir W. Greaves-Lord). All kinds of references have been made, however, to particular aspects of this matter, such as the onus of proof, the difficulties arising from the use of technical language and so forth. But I ask the House not to magnify the difficulties. We should also rid ourselves of any measure of suspicion regarding even some of the speeches which have been delivered from the other side of the House. I am prepared, myself, to take those speeches at their proper valuation in the sense that they admit the existence of a grievance and the fact that the grievance must be remedied. If we start from that point we may on this occasion meet with greater success than was achieved last Session.

A number of questions have been put to me by the right hon. Member for Chorley (Mr. Hacking), and I shall seek to answer them as well as I can. In the first place, he wanted to know whether we had formed any estimate of the cost—the additional cost, I presume he had in mind —which would arise out of the acceptance of this Bill in the form in which it is drafted. We are unable to give him any figures as to the cost. I am advised that it is a very uncertain factor, and that it will be very difficult, and I should almost think impossible, to get any accurate figures which will satisfy him or indeed any other reasonable person. Then he asked whether the Government gave definite approval to the Bill. Upon that question, my instructions are to say that we give general support to the principle of the Bill and to the desire of the promoters, as I understand it, to remedy the grievance, which is acknowledged on all sides to exist, arising out of the decision in the case of "Bevan versus Nixon's Navigation Company.

Then I was asked what Amendments the Government would move. We have drafted no Amendments at present, and I am not in a position to snake any announcement upon that issue. The right hon. Member also referred to the retrospective character of the Measure, but that and indeed one or two other questions are largely a matter for the promoters, in my opinion, though I recall that, when challenged on the floor of this House, I think it was on the Report stage last Session, the promoters did give some undertaking on the question of the retrospective character of the Measure.


I should like the hon. Gentleman to deal with that at once. Have the Government themselves no view as to whether this should be retrospective and as to the other matters?


As far as I am advised at the moment, I am not disposed to make any statement.


But really the hon. Gentleman is replying on behalf of His Majesty's Government.


I am stating the view of His Majesty's Government in relation to this Measure, which is a private Member's Bill, and surely I am entitled to reserve to the Government a free hand in these matters. The hon. and learned Member for Norwood put a question in relation to these Amendments, and I was just going to say definitely that His Majesty's Government will retain a free hand, in so far as the consideration of those Amendments is concerned, when they are placed upon the Order Paper. We can say nothing more, because we must consider these Amendments in relation to the Bill as drafted, in relation to the existing law, and in relation to the grievance which is sought to be remedied and which arises out of the decisions of the High Court.


I asked if the Government would concur and assist in bringing this Bill into such a shape as to carry out the principles enunciated by its promoters, my criticism being that the Bill as drafted does something that is totally different.


I do not think I ought to be involved in expressing any opinion upon that point. After all, it is a matter for the Committee, and I suppose I shall have to sit in Committee and that when these Amendments are moved I shall have to deal with them, or at least they will be dealt with by my hon. and learned Friend the Attorney-General or the Lord Advocate, in relation to the judgment in Bevan versus Nixon's Navigation Co.; and indeed in relation to the judgments that have since arisen and to which the hon. and learned Member made reference. The Government, as I say, are prepared to give general support to the principle of the Bill. I am hopeful that, having regard to the unanimity that has been expressed throughout this debate, we can this afternoon obviate the necessity for a Division, and I hope that when we reach the Committee stage we shall be able to face and consider with a free and open mind any Amendments that may he placed upon the Order Paper. It is in that spirit that I venture to express the view of the Government.


I hope the hon. Member or some other speaker from the Government side will give a little more detailed guidance to the House. The promoters of the Bill cannot say that they have not been met in all quarters in a very reasonable spirit. It is admitted on all sides that there is a certain grievance which ought to be remedied. That is a common desire, and if there was before the House, not a Bill, but a Motion on a Wednesday afternoon, to the effect that there was a defect in the Workmen's Compensation Act, and that it ought to be remedied, that probably would be carried without a single hostile vote. But we are asked today to consider not a general Motion of that kind, but a specific Bill dealing with workmen's compensation, and the hon. Gentleman really ought not to come to the House, which looks to him not in a criticising spirit but for guidance in this matter with a kind of speech which might be quite appropriate on a general Motion, but which is wholly inappropriate on this specific Bill. If he will give us further and more definite information and advice, he will not only facilitate the passage of the Bill to-day, but I am quite sure that he will greatly facilitate the progress of the Bill, if it is to proceed further, in Committee.

These are not Committee points at all; they are questions of principle which are involved. If they are Committee points, the whole Bill is a Committee point. The Bill is a one-Clause Bill to amend the law, but, that being so, the way in which the law is to be amended is not a Committee point; it is a point of principle, and really the hon. Gentleman ought to give us advice as to what, in the opinion of His Majesty's Government, is the way in which an agreed grievance ought to be remedied. Indeed, I go further and say that whether it is worth while going on with this Bill at all, and taking a great deal of time in Committee, and possibly afterwards on Report, depends upon whether the Bill will be framed or moulded into a form which will properly meet that point, or whether it will be a Bill for quite a different purpose and for making changes in the workmen's compensation law of this country which are in no way Committee points or points of detail but are points of principle.

There is a considerable difference between the terms of the Bill and the speeches of its promoters. I do not profess to be an expert lawyer, and, in regard to the effect of a particular Clause in the Bill, I am bound to take the opinion of lawyers, as they are the only people who understand this sort of rigmarole. [An hon. Member: "Take ours."] We are both in the same boat in this respect, but the lawyers tell me— and I am inclined to agree with them— that this Bill will really give workmen's compensation in place of unemployment insurance to a very large number of people. I know that is not the promoters' intention, but those who are learned in the law, and who equally want to see reform, tell us that if we pass this Bill in this form, that is exactly what we do, and I think that they are right. That is not the object, as I understand it, of the promoter, who wants to see compensation paid where a man cannot get work because of his accident. But that is not what the Bill says, and I am sure that the House will agree with me that that is not a question of detail for Committee, but is a question of principle. I ask the Government whether we ought to go into Committee on a Bill which alters the whole principle of workmen's compensation, and says that in future workmen's compensation and unemployment benefit are to be interchangeable, and that a man can get one or the other. I know that the promoters do not mean it, but that is what. it does.




Does the right hon. Gentleman contend for a moment that if a disabled workman gets compensation far total incapacity this Bill contemplates that he is entitled to unemployment benefit?


That is not the least what I am arguing. I am arguing this—and it has been supported by every legal Member who has spoken—




The right hon. Gentleman has not been present throughout the debate.


I understand that a large number of very able lawyers have expressed the opinion that this Bill, as drafted, would, in fact, give to a man who has hitherto been in receipt of compensation, what is in effect an alternative, when he is unable to obtain work in the present state of the labour market, of either drawing unemployment relief or workmen's compensation. That is the opinion which has been expressed. [HON. MEMBERS: "No."]. If there be a dispute between the legal members in the House as to what is the effect of this provision,, it is very inconvenient that we have not a Law Officer present to advise us. Really, hon. Gentlemen must realise that it is the duty of the Government to advise us as to the legal effect of a proposal which is brought before the House, and it is the duty of the Government to indicate their view on a question of principle. The preponderating view expressed by lawyers in this House to-day is that if this Bill passes in its present form it snakes a radical change in a principle of the law. [HON. MEMBERS: "No."] If it be the view of lawyers that under this Bill a man can draw compensation or unemployment relief at his option, or if there he a very genuine difference of opinion between lawyers in this House as to whether or not that very novel change of principle is to be introduced, we are entitled to have from the Government two things: first, an authoritative opinion based on the view of the Law Officers of the Crown as to whether or not that is the effect of this Hill; and, secondly, a very plain view from the Government on what is not a question of law, but is a question of policy as to whether the Government support such change in the law, if that be what the terms of the Bill mean.

We have had neither one nor the other, and the House is entitled to ask to be put in the same position to-day on this Bill as it would be if the Government themselves bad introduced a Bill. I think it would be infinitely better if we are to deal with a complicated question like that of workmen's compensation, that we should deal with it on the basis us of a Government Measure, and not on the basis of a private Member's Bill. The Government have skilled draftsmen at their disposal, and the advice and authority of the Law Officers of the Crown. We should then certainly have a Bill before us precise in its terms, and on Second Reading the hon. Gentleman would explain all the amendments in the law he proposed to make and the justification for them. As there is not a Government Bill, I ask the Government to put us in the same position as the House would be in if the Government had introduced a Bill. The Government will have the responsibility of moulding this Bill in Committee. This is a very big question of policy, and, if the Government are in favour of remedying the doubt which admittedly exists in the law, they should say that they will not wait for my hon. and learned Friend or anybody else to put down an Amendment, but that they consider that this is an evil which ought to be remedied and that they will come forward in the Committee stage with Amendments which will remedy it and which will not create any difficulties in its place.

I venture to put to the hon. Gentleman questions which are questions of principle and not of detail. Is the Bill retrospective? The hon. Gentleman said that that was a matter for the promoters. It is not at all a matter for the promoters; I have never heard that said before in my life. The question whether legislation should be retrospective is a matter for the House of Commons, and a matter upon which I should have thought the Government must pronounce an opinion. It is a question of principle whether legislation should be made retrospective, but the hon. Gentleman says that he is going to leave it to the promoters to see what they think. That is an abrogation of the functions of the Government and of the advice which the Government are bound to give to the House.

The hon. Gentleman was asked a perfectly reasonable question by my right hon. Friend as to the cost. I was not surprised to hear the Under-Secretary's answer, because on Government Measures we have found it impossible to ascertain what the cost will be. When we have a great Measure like the Education Bill brought forward, and the Minister says, "It will cost £9,000,000, or whatever it is", when they deal with the finance of their own Measures in that loose or generous spirit—whichever way you look at. it—I am not surprised that the hon. Gentleman is not able to answer us with precision on a private Member's Bill. Really, finance does matter a little in these days. The burden which you place on industry matters, not only to industrialists, but to the employed, and that burden must depend on the extent of the liability which you impose. If you impose a general liability of the kind which a number of my lawyer friends say this Bill imposes, I have not the least doubt the' the insurance premiums will go up enormously, because the risk is unknown and indeterminate. If the hon. Gentleman had been promoting a. Bill of this kind, one of the things which the Home Office would have done would have been to consult. the insurance companies and he would have been able to tell the House what the extra cost would be if any.

It is that kind of information which the House is entitled to obtain from the Under-Secretary. He is not the least taken by surprise over the Bill, because he has had a year's gestation in which to consider its proposals. I will put another question, which is not a question of detail or a Committee point, but is equally a question of principle. Is the hon. Gentleman prepared to accept the Amendment, which my hon. and learned Friend suggested, to insert the words "as a result of the accident"? The whole thing turns on it, and where does the hon. Gentleman stand, or sit? He has been through all the earlier debates on this Bill, and cannot he really tell us whether the Government think that compensation ought to be paid whether the failure to get work is the result of the accident or has nothing to do with the accident? Has the Government no view about it?


It has already been decided what that phrase means.


The House is being invited to amend the Law as it is, and as it has been determined by the highest court in the land. I am asking, not as a matter of detail, but as a matter of the highest principle, whether workmen's compensation is to be paid in a case where the failure to obtain work has nothing whatever to do with the accident, or is it to be paid, as we wish it to be paid, in every case where the failure to obtain work is the result of the accident as an ordinary man would define "the result." The hon. Member for North East Derbyshire (Mr. Lee) says that you ought to pay the compensation wherever there has been an accident and wherever after that accident the man is unable to obtain work—


I did not say that at all. The right hon. Gentleman is suggesting that a specific phrase should be put in, but a particular meaning has been put upon it by the House of Lords.


I am much obliged. I do not pin myself to that particular phrase. It is exactly the kind of thing about which we want advice from the Government as to what the phrase should be. I pin myself to a very large question of principle—and we must surely agree that it is a large question of principle! Is the test of whether compensation is to be paid to be the test of whether the failure to get work is in consequence of the accident, or whether the failure to get work is to be entirely irrespective of the accident and merely a consequence of the labour conditions obtaining in the industrial world at the time. I do not propose to argue which is right or wrong, but I think that it ought to be the result of the accident. [Interruption.] I am not seeking to press my opinion at the moment, but I am asking where the Government stand on the question. Everybody in the House seems to have made up his mind; the only man who has not made up his mind about it is the Under-Secretary, who is supposed to be advising the House on the proper course to take.

There is another point which I should have thought was a question of principle and not of detail. Upon whom is the onus of proof to rest? The hon. Gentleman has never dealt with that question. When we were discussing the Unemployment Insurance Act, did the hon. Gentleman say that the question of whether the onus of proof of genuinely seeking work should rest upon the man or upon the employment exchange was merely a Committee point upon which the Government would have an open mind? It is true that the Government changed their mind on the subject, but it was certainly an important question of principle, and not a question of detail. I ask the Government in regard to this Bill upon whom is the onus of proof to rest? Is the ordinary rule of the law courts to be followed, that the claimant has to prove his case, or are we to alter the ordinary rule of law, and say that the respondent has to disprove the claimant's case? I do not argue which is right or wrong; I have my own view, but what surprises me is that the Government cannot give us any indication in the matter.

If they cannot answer a question of that kind, I suppose that it is useless to ask them to answer the question which was raised by the hon. Member for Eastbourne (Mr. Marjoribanks) in a very interesting speech: whether the incapacity was an incapacity which was to be deemed to continue, or whether the incapacity was to be created under this Act? That makes all the difference. As the hon. Member will see, if the Bill is left as it stands you can make the claim to compensation even larger than the claim a man would be entitled to make if the accident had not happened. That may be a more detailed point. As to whether the Bill is to be retrospectiye or not, upon whom the onus of proof is to lie, and whether we are still to maintain what has always been the cardinal principle of workmen's compensation legislation, that failure to get work must result from the accident, no one in his senses will deny that those are questions of high principle. It is upon these questions of principle that we desire to get a little more information and to have a more definite opinion from His Majesty's Government if progress is to be made with the Bill.


It would appear to anyone who has sat here throughout the discussion on this Bill that we have established three things. First, that everyone, no matter on what side of the House he sits, admits that there is a grievance and an injustice arising out of decisions made following an Act of Parliament. Secondly, that there is a universal desire to remove that grievance, and that in its removal we should not lay further injustices upon either the employer or the workman. The third thing we have established is that there is a division of opinion as to whether further responsibility should be laid upon the workman or the employer. The question whether the Bill should be retrospective is one which can he dismissed by any fair-minded member. If a man who has met with an accident is suffering an injustice caused by an interpretation of an Act of Parliament, the fact that the accident he suffered happened some years ago should not debar him from obtaining justice. I am told by my legal friends that every Bill of this type has been retrospective in so far as remedying the original Act is concerned.


The amending Act of 1923 was carefully safeguarded as to a great many things so that it could only operate on its coming into force. In regard to one or two points, which were largely matters of detail, and affected no principle, it was provided that it might be retrospective.


This Bill is to amend that Act in one particular detail. If an injustice to a man arises from an Act of Parliament owing to a legal interpretation which has been placed upon it the fact that the accident to the man happened some time ago should not prevent him from getting the justice which would be extended to a man who had an accident after passing of the Bill. I come now to the question of whether loss in a man's earnings can he put down to his being incapacitated through his injury or is to be attributed to his failure to get employment owing to the state of trade—his own trade or trade generally, and whether his case ought to be dealt with under the compensation law or under the unemployment insurance scheme. Let us look at it in a broad way. If there is no incapacity at all, if the man has completely recovered, we on this side would concede that there can be no claim, and I am quite certain that no county court judge would differ from that view. Incapacity will have to be proved, and it will have to be more or less permanent incapacity before any county court judge will consider that a claim has been established.

Next we come to the question of the employability of the man. No matter what we put in an Act of Parliament, whatever the phrasing may be, each individual case will have to be decided on its merits. Anyone who has any knowledge of the working of the insurance committees at Employment Exchanges knows that when it is a question of establishing whether a man has been genuinely seeking work the decision must depend upon the facts in that particular case; so no matter what we may put in an Act of Parliament we shall not get out of the dilemma of having to decide whether a man has been unable to get work as a result of his injury or because of the state of trade. It is assumed by a large number of people that there is such a thing as a one-eyed man's job or a one-legged man's job, or a one- armed man's job. There is no such thing, and that point has to be made clear. The hon. and learned Gentleman says that there is work available for a man with one leg, but to say that there is a special reservoir or category of jobs for one-legged or one-armed men is to run away from the facts. In any sort of job one can think of a man so disabled will have to meet the competition of men of full capacity, with all their limbs; and therefore the field of opportunity for the incapacitated man is restricted in every sense of the term.

The hon. and learned Gentleman argues that it would be easy to determine whether a man had been excluded from employment because of his injury when trade is good, but that if trade is bad and large numbers of fully capable men are out of work it is to be presumed that the man will not get work because of trade depression. In other words, he says that the man can get compensation and will find it easy to prove his case when trade is good, but that when there is a more competitive market, when there is trade depression, it is to be made more difficult for him to get compensation. I know that is not the way in which he puts it, but that is what it comes to. He says we are going to give a man more than he would get if he were in employment. He argues that if every industry is going well and there are plenty of jobs for everybody the man will be able to prove that he could not get a job; but that if he does not get a job when industry is going badly it is because there is no employment, and therefore he must resort to unemployment, benefit. I think that is an injustice which we have no right to put. on a man who has been disabled.

Now I come to the last point, whether a workman should have to prove whether he has made reasonable efforts to obtain employment of the class specified as suitable for him. When you assess a man as being able to do a certain class of job like that of a messenger, you conclude that he will get between 35s. and £2 a week. Who is responsible for assessing that man's capacity? In every case a compensation claim at the commencement is a claim for total disablement, and there is never a case of partial disablement. Any man who is disabled so as to be taken out of industry has a claim for total disablement. The question naturally arises as to whether the man is fit for some light work or whether he will be able later to pursue his own occupation. If a man in the first instance establishes the fact that he has sustained an injury which has incapacitated him, and has a right to compensation, then you say to him: "You have not only to prove that, but you must prove that you are unable to do light work." That man has also to prove that he has been searching for that kind of work, and has failed to get it on account of the depression in trade. Who has to decide whether the man has made reasonable efforts to find other employment? I am afraid that is will be extremely difficult to prove that the man could have got the class of job which was suitable for him.

I would also like to point out that at the present time industry is carrying the maximum number of its own victims, and they cannot carry any more. Consider the position of an employer who is prepared to take on a one-eyed man. You cannot expect people to be searching about for one-eyed men simply because they are prepared to take on light work. In very restricted circumstances we should take the responsibility off the shoulders of the workmen. The onus of having to prove that he has sought light work only depresses him to such an extent that he is not able to make out his own case. I think we ought to provide that the employer or the companies should prove that there is a job available, that the man has not sought it, and then they might be able to get out of paying compensation.

Some hon. Members are under the impression that this Bill will cause a huge increase of liability in regard to incapacitated men. I would like to ask if that occurred when there was a rebate of premiums. As far as I know it did not. If you are just going back to the conditions which existed before rebates you will not increase the burden above what it was before rebates were given. I agree that all these are little quibbling points. We are all agreed upon the main issue that these men ought to be protected against being placed upon an allowance of a few shillings per week. We have heard a lot of talk about getting rid of the responsibility of maintaining these men, but somebody has to provide for them. They have to be provided for somewhere, and why should we throw upon the rest of the community and charitable institutions a responsibility which in nine cases out of 10 ought to be placed on the back of the employer or the workman. Why should we place the responsibility in doubtful cases upon the community?


I think the House is in a difficulty with regard to this Bill. I have followed this debate very closely. I have never been concerned with the actual administration of the, provisions of Measures of this kind, and I am unable to consider it from a strictly legal point of view. Nevertheless, I am in a difficulty about the whole matter. It has been admitted by the hon. and learned Member for Norwood (Sir W. Greaves-Lord) that there is an injustice which everybody is agreed should be remedied. Our difficulty is whether this Bill is not likely to perpetrate an even greater injustice than the one which we are seeking to remedy.

The hon. and learned Member for Norwood said that if the promoters desired to do in their Bill what they said in their speeches they ought to come forward and say that they would be prepared to accept Amendments with that end in view. If hon. Members only want to do in the Bill what they have expressed in their speeches, then they should be prepared to endorse the decision of the House last Session, and they should have taken steps to comply with that decision. The fact that the Bill is backed only by Members of the Labour party is sufficient to show that there is more behind their action than there is behind their speeches. Hon. and learned Members on this side take one view of this question, while hon. Members opposite take another view. I think it is absolutely necessary that we should make it quite clear at this stage what is meant by this Bill so as to avoid in future any misinterpretations of the law. Let us make up our minds to be as lucid as we can on this occasion. It is because there has been throughout this debate a difference of opinion as to what the words of the Bill as printed really mean that we have had such a long discussion when everyone is agreed.

We find it impossible to extract from the Government any reply as to their attitude with regard to the Bill. The Under-Secretary said that he had no estimate of the cost, that, he gave general support to the principle—everyone did that—but that the Government had drafted no Amendments, and could not say whether they would do so. I suppose that that depends upon whether they get the Solicitor-General in this House, because he would have to follow his predecessor in dealing with the Bill upstairs. The Government have given no indication as to whether they are going to do anything to bring the Bill into some relation with what the House wants to see done. I have looked up the previous Bills, including the one reported last Session, and there is a change in that this Bill contains the final proviso, which was not in the Bill as reported, while the words prove to the satisfaction of the county court judge that he has taken all reasonable steps to obtain and have been cut out. Did that proposal emanate from the Government or from the promoters of the Bill? Is it that the Government, having decided on the abolition of the "genuinely seeking work" condition in unemployment insurance, have pressed upon the promoters that in this Measure they should change the onus so as to bring it into line? The House is entitled to know that, and also to know a little more with regard to the possible retrospective nature of this legislation.

The last speaker said that you ought not to debar a man from justice because of a faulty legal interpretation. Perhaps most people would agree with that; you do not want to debar anyone from justice; but I think that those of us who have no particular knowledge in either direction of these cases would have to hold the scales for the other side of the picture; that is to say, that you should not through a faulty legal interpretation —accepting that it was faulty—weight the scales of justice unfairly with regard to the responsibilities of the employer, who also had no idea that. this interpretation was likely to be given. If you want to be fair between both, you had better not pass any retrospective legislation at all, but let everyone start afresh when the Bill becomes law.

3.0 p.m.

The hon. Member who spoke last asked why this burden should be thrown on the rest of the community. The context of his remarks was that the employer and not the Unemployment Insurance Fund should stand the racket. I was rather surprised to hear that suggestion from the Socialist benches, because their general attitude towards life is to throw everything on the community, but, when it is a question of one small section, they say that that section should bear the burden. I would make a suggestion to the Government., for what it is worth. I am sure that they will not think it worth anything, but I make this suggestion. The Prime Minister has announced that there is to be a Royal Commission on the whole question of unemployment insurance, and I should have thought that this difficulty might well be remitted to them—not the whole question of workmen's compensation, but this question about the difficulty of finding work. As the existing words of the Act are to be repealed, and the whole question is to be brought into the ordinary problem of unemployment, I suggest that that aspect of it might well be remitted to the Royal Commission, to see whether it had not better be linked up there with the difficulties with which we are faced to-day. The hon. Gentleman smiles, and I can only interpret his smile as indicating doubt whether that Royal Commission will ever be set up or will ever report, but, if the Government will accept this as one of its terms of reference, it might at any rate urge the Commission to hurry up with its work once it is set up.

As there is obviously this division of opinion as to the meaning of this Measure, I do not think it would be right, without some further indication of the attitude of the Government, that we should give it a Second Reading. It is all very well to say that it. is a matter of Committee points, but what is the good of the House solemnly giving a Second Reading to a Bill if it is found that in the end the only word of the original Bill that remains in the Bill as reported is the word "If"—that we shall have to change the whole thing from beginning to end? It is the intention of everyone to remedy the injustice which has arisen out of the legal decision, and, that being so, it would surely be better to try to get some non-party agreement as to the exact form of words, and not waste the time of the House—[Interruption]. The hon. Member says "Hear, hear!" That is exactly the point. If there were this general agreement on the principle, it might have been better to have a conference between the Members interested before the Bill was printed, and to bring in a Bill backed by Members of all three parties, get it through in five minutes and enable us to discuss other Measures which are on the Order Paper.


I wish that the right hon. Gentleman the Member for Hendon (Sir P. Cunliffe-Lister) had been here earlier, when the points which he put were answered by the hon. Member for West Middlesbrough (Mr. Griffith). On the question of costs, the hon. Member for West Middlesbrough pointed out that there was no question of any alteration by the insurance companies—


I was sorry to miss the speech of the hon. Member for West Middlesbrough. I had to go out for a time. If the hon. Gentleman tells the House that he has consulted with the insurance companies, and that there will be on alteration of premiums, I accept that. Is that the position?


No, I cannot say that, but the point is that, whatever the insurance premium was before, it has not been altered very much since the change came about, and, therefore, the insurance companies have been having the benefit all the time since the change. I thought at first that there was going to be agreement in all quarters of the House, but as the debate developed strong opposition was shown to the main principle of the Bill. With regard to the question of its retrospective character, if hon. Members opposite agree that the Acts of 1923 and 1925 meant certain conditions for the worker, and that those conditions have been altered by a decision in the House of Lords, what objection can there be to putting back what we thought to be the original meaning of the Act of 1923? If we do not do that, we are putting out from benefit many who have been debarred by the decision of the House of Lords.

Hon. Members opposite seem to be agreed that that decision requires alteration. Whatever the alteration may be, those men who have been put out ought to have the chance of having their cases reheard. In our view, it is necessary that it should be made retrospective, and I can say for a large number of my hon. Friends that, if we do not get that, we are not prepared to accept the Bill, so we may as well have a clear issue. I do not want hon. Members opposite to abstain from dividing on the understanding that we are not going to press that point. There will be no giving way on that principle so, if they are not prepared to accede to it, they had better give their vote against us and let us know where we stand.

I speak very strongly on this matter, because I have had to deal with a large number of cases. The Bill deals with all compensation cases, but in the mining world, unfortunately, we are more stricken than any other industry. We have the largest accident list of any—not the greatest number of fatal accidents but of accidents. Under the 1923 Act, we always had this position put before us. If a man had partially recovered and was fit for light work, we used to meet the employer and arrange with him to find suitable work, and we never had any difficulty. He always agreed to find the man work on the surface. Credit must be given to the employers for attempting to carry out the Act as we thought it was. Then came this decision and, immediately, the employers saw a chance of getting out of what was their liability, and now not one in a hundred will agree to fix up light employment.

The hon. and learned Gentleman the Member for Norwood (Sir W. Greaves-Lord) has as much knowledge of these matters in the Law Courts as anyone. Whenever there is a case we find him fighting on the other side. He must realise that there is a grave injustice to the workmen. Men are not fit to go below ground once they have had nystagmus. The employers have no work for them on the surface and there are thousands on the Employment Exchanges with no hope at all of ever getting work. No one wants a partially incapacitated workman, and we have no right to expect any other employer to take them on if their own employer will not. If a man gets work at another colliery and does not admit that he has had the disease before, he is not entitled to compensation if it strikes him again.

There is no earthly chance for the incapacitated workman who is suffering from nystagmus of ever getting back into the mine or anywhere near the mine, and there is no chance of him getting anywhere else. We are claiming, as a simple act of justice, that something ought to be done for these workmen.

I was struck during the course of a previous debate by the fact that an hon. Member opposite rose towards the end of the debate and, instead of speaking, as other hon. Members opposite had done, namely, against the Bill, said that he had attended Employment Exchanges and had seen the terrible position of the partially incapacitated workmen in trying to obtain employment. He said that there was no hope for them. He was an employer of labour, and he realised the terrible position in which they were placed, and he asked Members on his side of the House to help us to pass the Bill. It has been said there ought to be a comprehensive Bill to cover all these points of compensation, but there would be very little chance in a Parliament where there is not a sufficient majority to carry it through. Instead of a comprehensive Measure, we are asking for this simple Bill in order to put right what I think was intended by the Act of 1923. There is nothing more than that. If hon. Members persist in their opposition both this afternoon and on the Committee stage, I shall be forced to the belief that their intentions are not as sincere as I would like them to be, when they tell us that they want to help the working men. I wish to make one last appeal to hon. Members opposite at least to help us to go back to the position which was intended in the Act of 1923. If they do so I shall believe they are sincere.


May I respond at once to the appeal which the hon. Member has made. I do not see the Mover of the Bill in his place, but I think that the Seconder of the Motion is here. Is it clear that all that is desired is to restore the position which all of us thought was the position after the passing of the Act of 1923? I think that that is the position between us. We all thought that the words meant one thing. Unfortunately, the courts took a very narrow and what I think is a ridiculous view of the position. We want to get back to the commonsense view of what we all thought the words meant. If in those circumstances the promoters of the Bill will agree that in Committee they will not hold themselves simply hide bound by the language of the Bill and say, "There are the tenets of the Law, and you have either to take it or leave it," and will consider a genuine desire to come to an agreement to carry out a principle, then, as far as I am concerned, I shall offer no opposition this afternoon.


I hope the hon. Members who sit on this side of the House who are in charge of this particular Bill will consider the position very carefully before they succumb to the blandishments of hon. Members on the other side. A number of speakers, including the right hon. Gentleman the Member for Hendon (Sir P. Cunliffe-Lister), have tried to influence the House by raising a number of technical points which may he very effective from the debating point of view, but which when examined have very little substance. The right hon. Gentleman, for example, said that there was a genuine difference of opinion between lawyers on each side of the House on the question of the principle contained in this particular Bill. I think that that applies to every Bill. There is always a difference of opinion whenever a Bill is introduced.


That was not what I said. I said that there was a difference of opinion between the lawyers in the House as to what this Bill meant, which is a very different thing.


That, again, might be a position which might be applied to other Bills when being considered by this House. It seems to me to be rather an argument for sending the Bill to Committee than an argument against giving it a Second Reading. One hon. Member opposite took the view that this Bill could be made into a quite satisfactory Bill providing a certain Amendment was accepted. A similar Amendment was put forward in the speech of the hon. Member who spoke on behalf of the Conservative party, but I would remind the House that the effect of the Amendment, which is admittedly differently worded from Section 9 of the Act of 1923, would, in my opinion, leave the law exactly as it is under the 1923 Act. The object of the Bill is, of course, to change the law.


The line that I took on the last, Bill was this: The House of Lords had said that because trade conditions intervened the lack of employment could not be the result of the accident. I put down an Amendment to the effect that, if a man was earning less wages after his accident than he earned before, or was out of employment after the accident, that that should be considered a result of the accident, notwithstanding the fact that trade conditions had in part contributed to that result. That is a totally different position, and it makes a totally different point.


I understood the hon. and learned Member and one of his colleagues to put forward the suggestion that if the promoters of the Bill would accept the Amendment the effect of which would be to compel the workman to prove that his inability to obtain work was a result of the accident from which he was suffering, the Bill would be accepted.


The hon. Member is begging the whole question. The words "as a result" have been wrongly interpreted and what we want to put back is what everybody thought ought to be the interpretation of the words.


I am not begging the question, I am entitled to take the statement as it was made. If I am doing my hon. and learned Friend an injustice, he will correct me. I understood him to say that if this Amendment were accepted, the effect of inserting the words "as a result" would be—


It would make no difference at all.


It would make no difference to the law as it. is. That is why we cannot accept it. What is the position to-day? You have a miner, as in the Nixon case, who was suffering from nystagmus which rendered him unfit to work at the coal face. He was admittedly eligible for work at the surface as a sort of day labourer, but owing to trade conditions there was no work available for him and he claimed workmen's compensation. The courts, right up to the House of Lords, held that his inability to obtain work was not due to his accident, but due to labour conditions. That was the position in that particular case, and it is that position which this Bill seeks to remedy. That is where I differ from learned Members on the other side who suggest that we are seeking to change the principle upon which the law of workmen's compensation is based. We are merely extending the principle to cover an area which is not covered under the 1923 Act: a very different position. We are seeking to say that while a workman, as in the Nixon case, cannot say directly that his inability to obtain work was due to his accident, indirectly it was, because as a result of his accident he was declassed from his original employment and driven into another trade and because of trade conditions in that particular trade he was unable to obtain work. We say that he should be entitled to obtain compensation because originally it was the accident which drove him into this labour market the conditions of which prevented him from obtaining work. It was his accident which was the cause of his inability to obtain work. That is the position was wish to remedy. One or two of the learned Law Lords, a minority of two out of five, argued along these very lines. One of them said: Labour conditions did not drive him there; he was driven into that rank by the accident alone. Disabled for that work and wages not by labour conditions but by the accident, he is thrown into a rank in which labour conditions preclude him from earning wages. It is because of the accident and not of any labour conditions that he is put under such labour conditions which offer him no opening. That was the view taken by one of the learned Lords in that case. As far as the other points are concerned, I think they are points which could be put right in Committee and there is no reason why we should refuse to give a Second Reading to a Bill which is based upon a measure of justice to those who have become victims on the industrial side of society.


There seems to be some suspicion of lawyers on the other side of the House. I am a lawyer but I hope I may be allowed to make a few remarks on this Bill. When I practised I had to deal with a department of the Bar which had nothing to do with this subject and I never had a case under the Workmen's Compensation Act during the whole of my career. I come, therefore, to this question with an open mind. I have heard all the speeches this afternoon, and I have made several incursions to the Library and read a number of cases to which reference has been made. Altogether I find myself in as great a state of confusion of mind as the hon. Member for Cardiff South (Mr. A. Henderson, Junr.). He used the words "in my opinion," but from the way in which he confused totally different things I came to the conclusion that his opinion would be a very unsafe guide upon which to act.

One hon. Member spoke, I have no doubt with a very strong conviction, on the question of the onus of proof. What the court wants to get at is the truth. What is the best way of getting at the truth? You say that the onus should be on the employer of proving that the man has not tried to get work. Surely it is obvious that in the first instance the person who can give the court most information about the steps that have been taken to get work is the man himself. He may make out a prima facie case, and the judge could act upon it. It would still be open for the employer or insurance company to bring rebutting evidence to show that the man had not taken all the steps possible. But surely it is fair and reasonable, in the first instance, to put the obligation of giving such information to the court on the man himself. I come back to the question of what this Bill does. One hon. Member has spoken very freely about quibbling with words, and he said that what we had to do was to administer the intentions of the promoters of the Bill. That is all very well, but what the courts have to go by is what they see on paper. If we are to be ruled by that line of thought are we to look up the records of this House in order to see what the Mover and the Seconder of the Bill has said and produce them whenever the court has to decide a case? What can we do except go by the words before us? The words before us do strike me as being ambiguous and capable of different interpretations.

My main reason in rising to speak was to make a complaint against the Home Office. It is all very well for the Under-Secretary of State to laugh. Either the hon. Gentleman should have come here endowed with sufficient authority from his betters to enable him to deal adequately with the point raised, or some superior officer ought to have given us the information that we require. The matter under discussion does raise very difficult questions. One hon. Gentleman talked about the House of Lords having changed the law. Of course, that is absolutely ridiculous. The House of Lords did not alter the law, but said that the law as enacted by this House was so-and-so. In reading the cases it seems to me that there is a very clear distinction to which we ought to have regard. That is the question, are you going to make the employer the insurer? This Bill seems to make the employer the insurer of any man who is injured. On the other hand, there is really hardship under the law as it stands in the case of a man who on account of art accident is removed from a more eligible to a less eligible class of labour and has less opportunity of securing employment. There is the case of the man who is out of employment on account of an accident and the man who is out of employment for general trade reasons. I find myself in an extraordinary difficulty in drawing a distinction.

My complaint is that we ought to have had here a responsible Minister or law officer who had fully considered the matter. The House wants to do what is right and fair, and the House wants information. We have not received it. That is not treating the House fairly. On Wednesday evening we saw the House treated with absolute contempt by the Government. We saw a member of the Government, with sweat on his brow, wondering what he was going to do next. To-day we have a member of the Government who says that he does not know what he wants to do or what the Government want to do. The Law Officers are public officers—


The hon. and learned Member who speaks about it ought to offer some example of it.


As I say, we have a real complaint in this matter. I have honestly done my best to bring such intellect as I am endowed with to the con- sideration of this question and I feel that I am entitled to a great deal more assistance than I have received to enable me to make up my mind.


I only intervene in this debate to express my admiration for the hon. Gentlemen opposite who say they are not obstructing and who for the last two hours have been obstructing us. [HON. MEMBERS: "Withdraw."] I think I am entitled to make that remark and it would not have been made except for the intervention of the right hon. Gentleman the Member for Hendon (Sir P. Cunliffe-Lister). We were getting on very peacefully with this Bill until the stormy petrel arrived. We had reached a large measure of common agreement; we were in sight of getting agreement upon this Bill without any Division, when the right hon. Gentleman, having attended another meeting this morning, felt it necessary to intervene here later and to bring in those elements of doubt and despair and a questioning for which, I think, he has created quite a record in this House.


I gave way to the back benchers over there.


The right hon. Gentleman magnifies every detail of this Bill into a mighty principle. If the number of words taken to express an idea, make a detail into a principle, then no one can equal the right hon. Gentleman in producing principles on every occasion. There is no real quarrel about the principle of the Bill, as has been admitted again and again, and I only rise to say that to many in my constituency this is a matter of life and death. The right hon. Gentleman opposite said he was only a poor lawyer. I am not even that, but I do not propose to follow the devious paths and the legal tangles into which some hon. Gentlemen have sought to lead us. I am here to say, irrespective of party, that there are hundreds and thousands of men in industry, especially in the mining industry, who have been clamouring for years that this injustice should be removed, and I desire to protest against the action which has been taken to prevent what I believe to be a reasonable solution of this problem. Why are not the Opposition honest about this matter f they are against the Bill let them go into the Lobby and vote against it and we shall accept the challenge. I am here largely because of a speech made in the last Parliament by the hon. and learned Member for Norwood (Sir W. Greaves-Lord). He made just such another obstructive speech in connection with a Workmen's Compensation Bill, and I obtained hundreds of votes because the miners of my constituency are indignant that the Tory Opposition, while professing lip service, take every opportunity to deny the working men that to which they are entitled.

An appeal has been made to the representative of the Home Office to be more definite in his declaration. His was a perfectly explicit declaration that the Government are in favour of the principle of this Bill, that if it gets upstairs they will give what help they can in shaping it and making it an efficient Bill, but that they are not going at this stage to be tied to the particular point of view which the right hon. Gentleman wishes to impose upon them. In vain the net is spread in the sight of any bird, and I say to the Government, having criticised them on Wednesday because they did not, in my judgment, sense the feeling of the House, that on Friday they have sensed the feeling of the House. Let them stick to their guns, and let us have a Division on this Bill.

Lieut.-Colonel Sir WILLIAM ALLEN

What I want is a little information. In Bills that are introduced into this House, there is usually a Clause with reference to the part of Great Britain from which I come, and that Clause is a very short one as a rule. It reads: This Bill shall not apply to Northern Ireland. I want to know from the promoters of the Bill or the representative of the Home Office if that Clause was deliberately or unintentionally left out of this Bill. It is not an unreasonable request. We want to know if it is the intention of the promoters that the Bill shall apply to Northern Ireland. If that is their intention, it is quite understandable, because as a rule when legislation is passed here and placed on the Statute Book that is of a character that is applicable to both parts of the Kingdom, Northern Ireland goes step by step with this country. So far as I have heard from this debate on both sides, there is something required to be done, and I have no doubt, whatever may happen to this Bill, now or in Committee, that if it is a good thing, by which the people will benefit, our Home Office over there will take the necessary measures themselves. Perhaps I might get the information for which I have asked.

I know it is very difficult for the representative of any Department of the Government to give exactly the information that may be required, more particularly when a private Member's Bill is before the House, but I am sorry to say that from what I have noticed there is a kind of discourtesy on the part of the Government when a private Member's Motion or Bill is introduced. Here we have had demands from speaker after speaker for some technical information in connection with this Bill, and I am sorry for hon. Members like the present representative of the Home Office, who has his instructions and cannot go any further. We have had the unanimous opinion expressed that something ought to be done. On Wednesday we had the very same thing, with the House absolutely unanimous, but the representative of the Government on that occasion also had his instructions, and we could get no farther. It is almost treating the private Member with contempt, and I hope that in future the Government will see that a little more courtesy is extended to ordinary Members on these occasions. May I repeat the request that I made at the beginning of my speech? Can the representative of the Home Office tell us, or can the promoters of the Bill tell us, if the workmen of Northern Ireland will have the benefit of this legislation?


It is remarkable that some hon. Members do not seem to understand their own position in this House. The hon. Member who has just spoken boasts of being a representative of the Imperial Parliament apart from the Irish Free State. [An HON. MEMBER: "What has the Irish Free State to do with it?"] Northern Ireland is part and parcel of the legislation passed in this House, but with the difference that when it is a Bill giving something to the workmen, they are not part and parcel. [HON. MEMBERS: "Nonsense!"] I can prove it. The workmen in the North of Ireland, if hon. Members here did their duty in the Northern Parliament of Ireland, would come under every Amendment and every improvement in the general Acts, but what is the situation, as far as those of us who are Irishmen know it? To all intents and purposes those Members are going to support the opposition to this Bill in the interests of the big firms who dominate northern industrial Ireland. [HON. MEMBERS: "No!"] I am telling the truth. I will leave that alone for the moment; it will prove itself later on when we get in Committee upstairs to discuss the provisions of the Bill. We shall then know where right hon. Members representing Northern Ireland stand when Amendments are proposed.

This Bill, mainly, in the first place, was brought in by the miners' representatives, but we have cases representing labourers outside the mining industry. I realise that it applies to every worker, but the hon. Gentleman opposite—the hon. and learned Gentleman—and if his arguments are correct., thank God I am not learned —brings forward the argument that a workman who is injured by an 'accident in his own particular employment for the time being must prove that he is unable to find employment in some auxiliary industry. I have had a case only this week. One of our members has been injured in a gas-works as a stoker earning a fairly decent rate of wages, as things go. He has lost an eye. The result is that he is practically told by his employers that he is incapable of carrying on his work owing to the fact that he has lost an eye. We have had to take his case up, and, by interviewing the employers, they have told us that they can find him a job in the yard, which means a reduction of 14s. a week in his wages, not because of 'any disability on his part, but simply because he has lost an eye. Some of the employers have lost both their eyes. You use that kind of argument against the worker—he has worked for them for years —and we have to go to the courts to prove that this man is not qualified to carry on his work. The man has to prove that he is incapable of carrying on or of finding another job. What is the use of a man who has lost 'an eye trying to find a job somewhere else, when he has been dismissed? A firm is not going to take on a disabled man at the same wages that he earned before, and, with all their learnedness and cleverness, the lawyers know it as well as we do. They get paid for telling this story in the courts, and when we employ them they tell a different story. We have had to pay as much as £50 for a gentleman to lie on our side, and I am pleased to say we won. I believe that they are all honourable men. We all have to do certain work which we do not like because we are paid for it. Sometimes we are conscientious objectors and get the sack. There are not many of "The Devil's Own" who object to doing anything.

This Bill is worthy to be carried to a Committee upstairs so that we can go through all the details that have been raised. When a workman meets with an accident, he finds as a result that he is less capable of finding employment. Is that right? Is it right that any lawyer in this House, if he is a human being, should say that a man who is earning £2 a week should lose 10s. a week because he meets with an accident owing to circumstances over which he has no control, and then go to court against a big insurance company to prove that he is no longer capable of carrying out his usual employment? He is practically thrown into the gutter, for there is no job for him in his old employment., and he can take only light employment; but when we try and find him a light job, employers tell us that their yards are already full of men carrying out such work. The principle of this Bill should be carried into effect, and its details should go to a Committee to be discussed by people who know something about the subject. I hope that there will be few lawyers on the Committee.


As representing a large mixed industrial constituency, I should not like this Bill to go to a Division without expressing my opinion that throughout industry there is nothing about which the workers are more anxious than this particular phase of workmen's compensation. During 1928 and 1929 I visited practically every trade union branch in my constituency, and at every meeting I attended I was asked a question about this particular phase of workmen's compensation, which deals with what is known as the "light rate men." At every public meeting during the General Election I was asked the same question by people who were obviously asking it genuinely and had not been put up to do so by any particular organisation. The fear of men as to what will overtake them in these times of industrial depression as a result of the decision of the House of Lords in this matter is so very intense that every opportunity is taken to bring the matter to the attention of candidates, and speaking on behalf of my constituency I congratulate my hon. friend the Member for Barnard Castle (Mr. Lawther) who was my predecessor as candidate for that constituency, upon his good fortune in having the opportunity to bring this Bill before the House, and the large measure of agreement which he managed to secure for it in the earlier parts of the day. With regard to the opposition that has lately developed, I am sure the wise remarks of my hon. friend the Member for Silvertown (Mr. J. Jones) have amply demonstrated that the inspiration behind this Measure is sound.

Question, "That the word 'now' stand hart of the Question," put, and agreed to.

Bill read a Second time, and committed to a Standing Committee.