HC Deb 06 June 1939 vol 348 cc301-15

Section forty-four of the Unemployment Insurance Act, 1935 (which relates to appeals to the Umpire from Courts of Referees), shall have effect as if after Sub-section (6) thereof, the following Sub-section was inserted:

(7) In any case in which leave to appeal from a Court of Referees is not granted by the chairman under Sub-section (4) hereof, the claimant may, within two months after receiving notice of the chairman's decision, make application in writing to the Umpire for leave to appeal, and the Umpire, after considering the claimant's application and the record of the decision of the Court of Referees, may give leave to appeal.—[Mr. Foot.]

Brought up, and read the First time.

8.53 p.m.

Mr. Foot

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

I will endeavour to speak as briefly as possible, but this is a point to which we attach a good deal of importance. It is somewhat controversial, and it would be too sanguine of me to expect as wide a measure of support as we had on the last Clause. Let me make clear the present position under the Unemployment Insurance Act. Where a claimant is refused benefit by the court of referees, if the court is divided or if leave is given by the court or by the chairman of the court, either at the time of the hearing or thereafter, the claimant may appeal to the umpire; otherwise he has no right of appeal at all. But there is a further provision that if he is a member of an association of employed persons—which in practice means a trade union—the association may take up the appeal on his behalf. There is this further provision, that the insurance officer, who appears, so to speak, on the other side in the court of referees, may appeal at any time. There are no restrictions on him. That appears to me a shocking provision in our law. There are two parties in a court of referees: the insurance officer on one side, the claimant on the other. I cannot at this moment think of any other case in the whole range of our law where you give to one side an advantage which you deny to the other side. I do not think that that takes place before any other court.

Mr. Maxwell Fyfe

The Customs and Excise have the right of appeal to quarter sessions against decisions made against them by a petty sessional court, and that right has existed for some 50 or 60 years.

Mr. Foot

I am much obliged to the hon. and learned Gentleman, but I think that that is probably the only case, and certainly he will agree with me that it is an exceedingly rare and an undesirable provision that you should make a distinction between the two sides as we do here. All the advantage is on the side of the officer, who is generally much better able to argue the case than the claimant. The officer is given the right of appeal if in any case the decision goes against him, but the man has no right of appeal, except in the circumstances that I have described. He has no right of appeal himself where there is a unanimous ruling of the court, and he has no rights at all if he is not a member of an association of employed persons.

I am proposing a perfectly normal arrangement which exists in other forms of courts. These courts of referees and of the umpires are courts of law. They may be specialised tribunals, but they are there to administer a very important branch of our Statute law. It is a perfectly normal arrangement in other courts that you may get leave to appeal from the court from which you want to appeal, to the Court of Appeal itself. I propose that there should be a provision of that sort introduced into our insurance law. Under the new Clause which I propose, if the claimant whose claim has been turned down by the court of referees can make out a prima facie case in his application to the Umpire, the Umpire himself will be able to give leave to appeal.

On two occasions within the last few years a proposal of this kind has come before the House of Commons, once in 1934, and on the second occasion in 1937. On each occasion it was resisted on one ground only. It was anticipated that an Amendment of the law of this kind somehow jeopardised the position of the trade unions. As I say, an association of employed persons, in by far the greater number of cases, means a trade union. There are two answers that I would make to that objection. I am not taking away by this new Clause any rights which the trade unions at present enjoy. If this new Clause is passed, they will still have the facilities that they now possess to take up cases on behalf of their members, and these members will enjoy the advantage of their advocacy. It is simply a proposal to extend the rights of unemployed men whose claim to benefit is called into question.

I do not propose this new Clause from any sense of enmity at all to the trade union movement. In the Committee upstairs I supported a proposal of the hon. Gentleman the Member for Chester-le-Street (Mr. Lawson) that benefit should be paid in the case of a lock-out, which, if it had been carried, would certainly have strengthened the position of trade unions. None of my hon. Friends here want to jeopardise the position of the trade union movement, but the present position is flagrantly unjust. We give to one class of litigants before these courts an advantage which we deny to another class. All of them are contributors to the fund. They all contribute precisely the same amount and in precisely the same way, and yet in the one case we give the right of appeal against the court of referees, and in the other case—the case of the larger class—there is no such right. The argument is that the man has his remedy if he chooses to join a trade union. I agree that he is much better advised if he joins a trade union in any industry. I much prefer that a man should do so, but you ought not to put him at a disadvantage by Statute if he chooses not to join an association of that kind.

Mr. G. Griffiths

The hon. Gentleman has said that he does not want to stop a man from getting equality of treatment. If a lawyer was not in his union would he not wish to stop him from practising?

Mr. Foot

I rather anticipated that interruption. I think that if the hon. Member will consider it, he will see that it is an entirely false analogy. Supposing lawyers were put in a special position before our courts, and it was provided in our Statute law that, when a lawyer himself went to law and was engaged in a law suit, he should have the right of appeal that was denied to other classes, that would be an analogy of the position we are now discussing. The question of allowing a man to practise is simply one of technical qualification in precisely the same way that you prevent a man who is not a qualified doctor from giving a death certificate. But here we are considering the principle of equality before the law. On the last occasion when this was discussed, in 1934, the argument was put very much more forcibly than I can. put it by the hon. Gentleman the Member for Bridgeton (Mr. Maxton), when, speaking in this House on 1st February, 1934, he said: The Minister coolly comes here and tells us that out of these 12,000,000 insured persons whose rights in this Fund are supposed to be equally guarded, 4,000,000 are to have the advantage of fighting for their rights up to the highest court of the land, but that the other 8,000,000 are to have only the lesser appeals, unless the lower courts specifically give them the right to appeal to the higher court. It is not right and no amount of argument by the Minister or any amount of pressure by the Trades Union Congress can make it right."—[Official Report, 1st February, 1934; col. 663, Vol. 285.] That is the objection in principle. There is also a very practical objection to the present system. There are areas—and I agree that it is unfortunate—where the workers are not organised in trade unions. New industrial areas are growing up, and in the last year or two we have extended unemployment insurance to agricultural workers. Again, it may be regrettable, but the vast majority of agricultural workers are not organised in any union at all. They have their union but it includes only a minority of those who are in the industry, and it is very difficult in some cases as we know for a farm worker to become a trade unionist. It is not necessarily his fault that he is not a member of a trade union, but is that a reason why we should deny him the right of appeal in this case?

Let me put another case to hon. Members above the Gangway. They will remember very clearly the trouble which took place in the last few years in the Nottinghamshire coalfield. Many of them can speak with authority on this question, but I think I am right in saying that it was rather difficult for a man in some areas to join a trade union. He could join the Spencer union. If a man was not a member of that union it was rather difficult for him to get employment in some areas. There were complaints in this House and outside of intimidation by certain colliery companies if a man joined another union. Supposing a man is put in that position, and it is made difficult for him to join a trade union, as may happen in some, cases, should he, for that reason, be deprived of his right of appeal against a decision of the court of referees.

I would remind the House of what was done here only a few days ago on the Military Training Bill when we were dealing with conscientious objectors. It was provided that the conscientious objectors should, in the first place, go before a local tribunal, and then, if they were dissatisfied with the decision of that tribunal, they might appeal to an appeal tribunal. When that Bill was first introduced it was provided that the conscientious objector should appeal only with the leave of the court of first instance. That is to say, a very similar system was proposed to that which exists under our unemployment insurance law. There were protests from all parts of the House and none was more forcible than those of hon. Members above the Gangway, who said that it was entirely wrong that the right of appeal should be limited in this way. If it was wrong in the case of conscientious objectors it is equally wrong in the case of a claimant for unemployment benefit.

Sir Percy Harris

I beg to second the Motion.

9.6 p.m.

Mr. Lawson

I ought to say at once that the hon. Member for Dundee (Mr. Foot) was quite right when he anticipated that Members on these benches would not agree with him in this Clause as we did on the last. He was sufficiently aware of the weakness of his case that he anticipated the interruption of the hon. Member for Hemsworth (Mr. G. Griffiths). Lawyers insist upon their rights to such a degree that they will not let a man work unless he is a member of their union. The union is known as the Devil's Own because of that very fact. I can understand the case of the hon. Member on sentimental reasons, but I cannot see what a man who is not a member of a trade union has to grumble about. He can ask for leave to appeal in case the court of referees are not unanimous and, indeed, there are certain circumstances under which he can appeal. It is as well to be blunt about this matter. Trade unionists, with great sacrifices, have built up their organisations by the payment of their pence per week, and in some parts of the country there would be no real organised wage system if it were not for the organised workers. There are people who are not in any trade union who are ready to take the benefits for which other people pay, and take them without the slightest thanks or appreciation. There are trade union organisations into which those who are outside can enter if they so desire and thus get the benefits of the thoughtful and careful arrangements which have been made by trade unions for the representation of their members before these various tribunals. If there are any unemployed persons who still remain outside any trade union organisation that is no reason why we should go out of our way to give them special conditions.

9.11 p.m.

Mr. E. Brown

I want to put a rather different point of view from that mentioned by the hon. Member for Chester-le-Street (Mr. Lawson). The hon. Member for Dundee (Mr. Foot) always gets up his case with great care, but those who followed him closely in his speech will know that he has not given the whole history of this matter. It is a much longer history than the hon. Member led the House to suppose. It is not a fact that it was not until 1934 and 1937 that the matter was raised. It has been raised many times in this House and outside it before then. As a matter of fact, the present arrangement is not the original arrangement at all. It is the result of more than one concession. The question I wish to put to the House is this: Has practical justice been done by this working arrangement; and, if so, is there any reason why it should be altered? My inquiries lead me to believe that practical justice is done, and if hon. Members will read the formidable arguments used in 1934 or the Blanesburgh Committee's Re-, port of 1927 or paragraphs 492 to 495 of the Royal Commission's Report of 1932, very authoritative bodies which went into great detail on this question, they will come to the conclusion that the ground which they take is the ground which the House should take, and which, indeed, the House did take on former occasions.

I was amazed when the hon. Member for Dundee quoted the speech of the hon. Member for Bridgeton (Mr. Maxton) because I cannot recall any speech made which is more calculated to kill his new Clause than that speech. A more clear distortion as to the way the arrangement works than a comparison between 4,000,000 who have a right of appeal and 8,000,000who have not, I cannot imagine. It was a speech made in the wonderful way we know the hon. Member for Bridgeton can make a speech, but it had no relation to the actual facts at all. The working arrangement is on this basis. It was the ground taken by the Blanesburgh Committee and the Royal Commission, that it was not possible in these cases to give an unlimited right of personal appeal because otherwise the Umpire would be flooded with a mass of frivolous and unnecessary appeals. Moreover, the hon. Member for Dundee did not appear to be quite so well informed as he should have been. If a member of a trade union asks his trade union to appeal it does not follow that the trade union always takes up his case. In fact, so great is the sense of responsibility of the men who run the trade unions that they do not always take up the case of a man, although he has a right to make an appeal. The matter is not so simple as would appear from the abstract argument of the hon. Member for Dundee. The fact is that the working arrangement does practical justice. I speak strongly on this question, because at about that time I was moved by a case which I thought was a little hard. When I went into it, I thought that technically under the law the man had not a right to appeal which he ought to have.

The hon. Member for Dundee was not quite fair in his statement about the insurance officer. He treated the insurance officer as though he were the enemy of the applicant. That is not so. Nobody would have guessed from the speech of the hon. Member that the insurance officer appeals both for allowances as well as disallowances. He is almost as often the friend of the applicant as he is the opponent of the applicant. I will give some facts to make the situation quite clear. In 1938,insurance officers appealed in a substantial number of cases. Decisions were given by the umpire on 878 appeals by them against disallowances as compared with 1,545 appeals against allowances. Therefore, the insurance officer in this working arrangement works both ways.

What has the man the right to do? He has these opportunities. The chairman himself may give a right of appeal if he thinks a point of principle is involved. That is provided in order to prevent frivolous appeals. In all cases where the court is not unanimous, the man has a right of appeal whether he is a member of an association or not. If he is a member of an association, he has a right of appeal through it, but as I have already told the House, in many cases the association does not think the claim is so substantial that the man ought to use the association's expert knowledge to forward it to the umpire. Lastly, there is the insurance officer. As every hon. Member knows, the insurance officer is not the enemy of the claimant. He does his best to see that substantial justice is done, as is shown by the figures I have given. He appeals against disallowances as well as against allowances. In the particular case where I had thought that abstract justice was not done, I found that the position was satisfactory because the insurance officer did make an appeal on behalf of that man to the umpire. I was a private Member when my attention was drawn to that case. Now, as Minister, after having inquired into this matter and read all the evidence, I am certain that the working arrangement does give practical justice and that the long series of considered opinions given by Commissions that it is the best one are right. In 1934, after a great deal of eloquence, I would remind the House that only 20 hon. Members supported a similar Clause to that which has been moved by the hon. Member for Dundee. [Interruption.] The hon. Member is a little self-righteous. It is true that his arguments are not always wrong, but it is also true that the Front Bench is not always wrong. As a matter of fact, the Front Bench is often right. For the reasons I have given, I recommend the House to reject the new Clause.

9.19 p.m.

Mr. Ks Griffith

If the right hon. Gentleman had not risen when he did, and if I had been called, I should have made the point which he has put with regard to the insurance officers, because I am fully aware that in my own constituency, in several cases which have been brought to the notice of the insurance officer, he has operated on behalf of the applicant. Certainly, I would not leave that out of consideration in dealing with this important question. Nor do I attack the general working of the appeal system. I think the right hon. Gentleman is justified in claiming that, on the whole, it works well and, in general, does justice. No system is perfect. That does not prevent us, when we find, as I have found, that there are cases which are left out by the machinery as it exists, from trying to provide for those also. In supporting the new Clause, I am considering marginal cases which I hope are not of very great frequency, but which to my knowledge do occur. If one finds that there are cases in which under the Act a man has a good ground and thinks he ought to have an appeal, but has not that right because he does not comply with the conditions that are at present laid down, I think it is not unreasonable that, even if there are only a very few cases, one should come to the House and try to provide for them. I was rather sorry that the hon. Member for Chester-le-Street (Mr. Lawson), for whose speeches I generally have the greatest admiration, should have tried to introduce an entirely misleading analogy. I can only think that his object was to cast some slur on the new Clause by giving the analogy of the legal profession. It would not do any good either to my hon. Friend the Member for Dundee or to me, although we happen to be members of the profession, if the new Clause were passed.

Mr. Lawson

I do not think that is quite a fair interpretation of what I said. I have the greatest respect for the legal profession and for what it does. I wish that the rest of the workers were in the same position to make it possible to compel every worker to be a member of their organisation, instead of getting benefits for which they do not pay, I thought I was paying a tribute to the organisation of the legal profession.

Mr. Griffith

In that case, I will address myself briefly to the merits of the argument made by the hon. Member. If one produces an analogy, it must be one that corresponds, and the circumstances must be the same. If my hon. Friend were proposing that lawyers, because they belong to that particular trade, should have a right of appeal in certain circumstances which other people do not have, the analogy would be complete, but no such claim has been suggested, and if it were, certainly I should not be supporting it. What I am sorry about on this occasion is that the speech of the hon. Member for Chester-le-Street was devoted, however much it may have been wrapped up, to restricting the rights of appeal of persons aggrieved under these Acts. If the new Clause were carried, people would have a right of appeal—and we must be right in assuming that some of them have good grounds for doing so—which they do not have at the present moment. The hon. Member for Chester-le-Street is asking that that appeal should not be given. I am sorry that he takes that view. No one can deny that that is the effect of his speech.

The question which will govern the votes of all those hon. Members above the Gangway is not whether there are aggrieved persons who have rights which might be vindicated on appeal, but whether indirectly some advantage may be gained by a particular form of organisation. Surely, it is better that we should consider these things on their merits. We should consider the right of unemployed persons who are refused benefit to get some by appeal, if they can, whether they belong to a trade union or not. Let trade unions appeal for their members on their own overwhelming merits. I recognise the tremendous advantages that they offer to everyone who belongs to them—the sense of pride which I think every man who belongs to any craft or occupation ought to have in joining in with the rest of those who belong to the same craft or occupation to fight their battles together. For all that I stand, as I have always stood for it, but it seems to me that the argument advanced to-night might be pushed very far. Why is it on this matter alone that trade unionists are to have special rights? Would hon. Members think it right, in the case of the ordinary criminal business of the courts, to say that people who belong to particular organisations should have the sole right to appeal? I am sure they would say nothing of the kind.

I think it is a great pity that we have not been able to debate this matter simply from the point of view of the right of unemployed people to get their case tested in court after court up to the highest authority. I am very sorry that a sort of background of trade union rights has been brought into this question. I am not seeking to. attack those rights, but I am speaking on behalf of cases that I know, and cases which must be repeated in a great many constituencies, where there are people who may not have had the opportunity of joining a trade union, whose trade is unorganised, or who may through poverty have fallen out of the organisation. In any case I think it is not the best kind of lever to use to the advantage of the great trade union movement, for which I have the very greatest admiration, that there should be a kind of indirect compulsion to force men to join a particular organisation by refusing them what, apart from that question, every Member above the Gangway would recognise as being their undoubted right. I do hope that there are some Members above the Gangway who, after to-night, will go away and feel perhaps that their view on this question has not been as broad-minded as it usually is. By their refusal to-night to support this claim they may prevent any Division being taken upon it. It may not be worth while for us few here who have put forward this case to press it to a Division, but if we had had their support, which I hoped we might have had, we might have obtained for some people who are at present denied them those rights which they ought to have.

9.28 p.m.

Mr. Fyfe

I should not have intervened at this moment had it not been for the standpoint which my hon. Friend has adopted in the speech which he has just made, because I feel that we ought to consider this matter on its merits, and on its merits to face the attack which has been so ably launched against it. First of all, we must realise that here we are dealing with a special ad hoc procedure: we are not dealing with the ordinary courts of law. We are dealing with a court where, it is true, there is a chairman who is generally a lawyer, sitting with lay members, and where the applicant is not allowed by the procedure. to have legal representation—a special court at which lawyers have no right of audience. Therefore, we have to consider what is a practical and at the same time a just basis for a right of appeal.

At the moment the right of appeal exists if there is a difference between the members of the tribunal. That itself, my hon. Friends agree, must cover a great number of cases. Where you have a tribunal of three or five members you do have divergencies of view between its members—you are bound to have in a certain number of cases. Then you have the provision made for any special point of law of importance in the fact that the chairman has the right to give leave to appeal. There again you have the experience of the chairman at the disposal of the methods which prevail at the present time. Thirdly, you have the position of the insurance officer and, apart from the argument that he is entitled to a special position, we have the admitted fact—admitted by the hon. Member—that he does utilise his function in cases where he is on the side of the applicant no less than where he is on the side of the fund.

These different aspects of the matter cover a great number of cases, and one has to consider, when the applicant has these rights, what else should be given to him. The hon. Members know, probably better than most of us here, how easy it is on questions of fact that involve no principle at all, and no point of importance at all, for a disappointed litigant in the moment after the decision to say, "Well, I am going to appeal." I agree that he has to ask for leave, but I ask the hon. Members to consider what duplication, or rather what new piece of work, it is going to cause. I do not understand that there will be any less work in considering the application than substantially in a case of a final appeal.

At the present moment a right is given to the trade unions, and there again the hon. Gentlemen know that, apart altogether from the industrial function of trade unions, the trade unions play in the modern State the role of determining legal rights in important points. It is thanks, too, to the trade unions that important points are decided in many aspects of our law. That position having justified itself for the last 60 years, I suggest to the House that it is proper to leave to a body that has assisted in determining our industrial law in so many fields the right of choice in determining our law in this restricted and special field which we are discussing to-day. I want to put this before the House because I do feel that, whether we are given the opportunity of casting our votes or not, our support of the position to-day should be stated as existing on logical and proper grounds, and I suggest to the House that the grounds which I have endeavoured to put before it are logical and proper in connection with this controversy.

9.34 p.m.

Mr. Hayday

I am sorry to detain the House, but I feel that something ought to be said after the speeches from the benches below the Gangway. I oppose their new Clause in order to protect the very people who, they claim, are largely victims of an adverse system. It is not so long ago that a good many of these cheap-jack lawyers, as I sometimes call them, ran round various industrial centres endeavouring to secure by a small percentage on results a clientele among those who were not attached either to their trade unions or one of the unemployed workers' associations, and I remember that representations had to be made because of that touting that was going on. Now who is to plead for the individual? This cannot be compared with a court of law. We cannot look upon these people as people who are under a charge, and who are debarred from the right of appeal. Who is to prepare their cases for them? They cannot have lawyers. By whom, then, can they be represented? Does any one imagine that those who have not been associated with industry, or attached to a trade union, or some industrial organisation, would know how to prepare a case for presentation on appeal? Certainly they would not. These people would be left like flotsam and jetsam. They might as the hon. and learned Member opposite suggested, in the moment of being turned down, knowing that there were appeal facilities, say, "I am going to appeal." But to whom can such a person go? Are they to go to the people behind the counter at the Employment Exchange and ask them to prepare a case against the exchange? Then who is to present the case to the umpire? It can only be the member himself. He cannot take a lawyer.

I am rather pleased that the Minister of Labour gave those figures which we heard a short time ago. It is purely an estimate, but I should say that not more than 50 per cent. of the appeal cases sent. by members to their trade unions are presented on appeal, after the investigation has taken place and all the particulars have been examined in the light of the actual industrial conditions to find whether there has been any misstatement or any faulty decision. But who can decide that, except those with industrial knowledge? I think it is necessary to say that, and to point out that a man can retain his asso- ciation with an organisation by going to the lodge room and signifying his desire to retain that association. There are also unemployed workers' associations operating through the trade councils. There is all the industrial machinery. Is it proposed to lead these people to believe that the whole machinery of the exchange will be placed at their disposal if they want to appeal? Otherwise, if you do anything to strike out or to weaken these words, "associations of workers," you will open the way to association of the tout type and to people who will wait outside the exchanges and will undertake cases, as I know they have done in one or two instances, on the basis of a percentage repayment from any money that may be obtained on appeal. For that reason, I oppose the new Clause.

Question, "That the Clause be read a Second time," put, and negatived.