HC Deb 18 February 1942 vol 377 cc1849-70

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. W. Whiteley.]

Mr. Gallacher (Fife, West)

I want to draw attention to what I consider to be gross injustice and inexcusable persecution. When we were discussing some Regulations affecting employers of labour, I took occasion to remark that workers could be found guilty before being taken into court and that all the court had to do was to impose sentence. Some of the legal men in this House were inclined to be very sceptical of such an assertion, and one who sits on this side and whose legal brilliance has dazzled his own sparsely-furnished mind told me in the most superior and supercilious manner that I did not know what I was talking about. There are many Members who still adopt the same attitude towards ordinary workers as they did towards coloured people, despite the fact that the world has changed and that coloured people are now in many cases laying down the law to the superior whites, and that one of these days the workers will begin to lay down the law to the superior members of the ruling classes. At any rate, I was told I was talking nonsense. I will deal with this case of a miner from my own constituency by quoting certain letters. The first is a letter which was sent by a firm of solicitors to the Minister of Labour. They say: HUGH GROSSETT. We desire to bring before you personally the position with regard to this man who was formerly a miner and is now employed in connection with the building of houses at the Special Scottish Housing Scheme, Admiralty Road, Rosyth. Grossett was ordered to take up work as a stripper and machineman with the Fife Colliery Co., Ltd., at Lumphinnans No. XI, Kelty, by written direction dated September, 1941, his period of employment to commence on 22nd September at 6 a.m. We understand that Grossett duly appealed that he was not fit to work as a miner, and we believe his appeal was turned down although we have no official notice of the position. The circumstances relating to this man seem so extraordinary to us that we think it right you should know of the pressure that is being put upon people who are not fit to resume work in the mines. We therefore state the grounds on which Grossett appealed and may say that he was not advised by us in regard to his appeal. The grounds of appeal as stated were as follows; 'Firstly, I suffer from the removal of my cartilage from my right leg, October, 1929. Secondly, I had the muscle of my heart racked in June, 1930. Thirdly, I had my right hand poisoned in December, 1930. Fourthly, I had my left leg broken in two places above the ankle and across instep on April, 1931. Fifthly, I had my collar bone broken and my ribs fractured and my neck strained on September, 1935. Sixthly, I had my back racked on 1938. Seventhly, I had my left leg broken below knee in December, 1938, and I appeal on the abovemention as I feel I am unable for pit work and I have been advised by doctors on several times to leave the pits as it is detrimental to my health. I enclose my doctor's certificate as follows above.' Grossett tells us he refuses to go back to the mines because he sustained severe injuries in seven accidents while working there and he feels that he is not able to do the heavy work of a stripper and that he should not be called upon to incur the risk of further accidents. His own doctor has certified that he is fit only for light work and that the roads underground are too rough for him walking on owing to injuries previously sustained by him to both his legs. A further extraordinary feature of this case is that about three years ago, after he had suffered in six accidents, he received a post-card from his employers warning hire about his accidents and informing him that if he had a further accident he would not be further employed by the coal company. On behalf of our client we ask that this man's case should be investigated, as it seems clear that he is not likely to make a satisfactory miner at his age of 44, and that the compulsory powers of your Ministry should not be used to force an unfit man to take up work in the pits. In reply there came this letter from the solicitor's department of the Ministry of Labour: Hugh Grossett. Defence (General) Regulations, 1939. I am instructed to acknowledge your letter of the 14th November addressed to the Minister of Labour and National Service and to inform you that consideration has been given to the matter. That is the satisfaction they got from the Minister of Labour. At the sheriff's court, Hugh Grossett was charged at the instance of the complainer that: Having by registered letter dated 17th September, 1941, posted at Dunfermline to and received by you at your dwelling house, 90, Blair Street, Kelty, on or about 18th September, 1941, received directions given in pursuance of No. 58A of the Defence (General) Regulations, 1939, on behalf of the Minister of Labour and National Service in accordance with his instructions, signed said letter by James Thomson, a National Service Officer, to perform the following services being services which in the opinion of said Minister you were capable of performing viz., you were to be employed by the Fife Coal Co. Ltd., as a stripper and machineman at their Lumphinnans No. XI Colliery, Kelty, to begin said employment not later than 6 a.m. on 22nd September, 1941, you did fail to comply with said directions and have since said 22nd September, 1941, remained in other employment, contrary to No. 58A of the Defence (General) Regulations, whereby you are liable to imprisonment for a term not exceeding three months or to a fine not exceeding £100 or to both such imprisonment and such fine. Then Grossett is taken into court. The sheriff sentences this man, who has as clean a record as any man could possibly have, to 14 days' imprisonment. There was no attempt on the part of the sheriff to discuss the thing and to consider whether this man was fit to carry on that employment. All the decisions regarding whether or not the man was fit for the work were taken outside the court and all that had to be done in the court was to decide on the character of the sentence to be imposed. The man was found guilty before he went to court. He had appealed to the appeal committee and they had turned down his claim, and thereupon the Labour official simply had to hand the matter over to the Procurator Fiscal and the man was taken into court. The firm of solicitors, Messrs. J. T. Tinman & Co., then wrote to me the following letter: On behalf of Mr. Hugh Grossett, of 90, Blair St., Kelty, and with a view to seeing that real justice is done, we venture to submit to you the following facts:

  1. (1) Grossett is a miner and was employed as such till September, 1939. He then met with an accident—a fracture of the left leg. Prior to that he had six other accidents, particulars of which you will see in the copy Minute of Admissions which was lodged in the prosecution against him to-day for failing to go back to the mines in terms of No. 58A of the Defence (General) Regulations, 1939.
  2. (2) Grossett registered on 19th July, 1941, under the Coal Mining Regulation Order 1941 as an ex-stripper, at the same time declaring himself unwilling to return to work in the pits.
  3. (3) Grossett was called by the Ministry of Labour and National Service to be medically examined on 25th August, 1941. That examination was made by Dr. Alan Tuke, Dumfermline, who certified Grossett as fit for underground employment in coal mining.
  4. (4) Grossett was ordered to take up work as a stripper and machine man at the Lumphinnans No. 11 Colliery of the Fife Coal Co., Ltd, on 16th September, 1941, by notice sent to Grossett by registered post on 11th September, 1941.
  5. (5) Grossett appealed against that direction. His appeal was heard by the Local Appeal Board on 16th September, 1941. Grossett gave his history of his accidents, and he produced certificates from Dr. Stirling, Cowdenbeath, and Dr. Stirling's locum, Dr. Coghlan, to the effect that he was unfit for underground work. Mr. James Cooke, Miner's Agen"—
who is actually the general secretary of the Fife Miners' Union— also appeared before the Board and gave it as his opinion that Grossett was not now fit for work in the pit. Then he goes on to explain how Grossett did not comply with that direction, and then he says: (9) It thus seems that the Appeal Committee have accepted the unsupported word of Dr. Tuke that Grossett is fit for work in the mines in the face of the evidence by Grossett by Dr. Stirling and Dr. Coghlan supported by the opinion of Mr. James Cooke. It is therefore necessary to ask what kind of a doctor Dr. Alan Tuke is that his word should be accepted as against Grossett's word, the two other doctors concerned and a miners agent who gave his opinion. Dr. Tuke is a medical practitioner in Dunfermline of considerable standing, but his impartiality is questioned, and we give you the following instances coming under our notice within the last three months which show, in our clients' opinion, that he is not an impartial medical adviser:
  1. (a) In one case he certified a man as fully recovered from an accident (not a mining accident) when he had not seen that man for six weeks prior to the certificate, even if then, and his opinion was not confirmed by an independent surgeon in Edinburgh who found the man not recovered and suggested that he should make a further medical examination of him in another month;
  2. (b) In another case he passed a man as fit to return to work in the mine, that man being engaged in coal distribution in Dunfermline and having lost the sight of one eye through an explosion; and
  3. (c) In another case, a medical referee having found on 22nd October, 1941, that a man had not recovered from an accident and was unfit for work, Dr. Tuke on 4th December gave an opinion to the effect that he was fully recovered, this opinion necessitating a further medical reference."
 In regard to this Dr. Tuke, I would like a special inquiry made into his associations I do not know him personally and I have never seen him but you have only to mention his name at a meeting of Fife miners to hear one of the loudest outbursts of ribald laughter that it is possible to hear anywhere. The document goes on: (10) To-day, Grossett was tried on a complaint that he had failed to return to work and the Sheriff, rejecting a legal argument submitted by us, convicted him and sentenced him to fourteen days' imprisonment. I spoke to the Lord Advocate about the matter. I gave him all the material about it, but I heard nothing from him. I sent him the following letter: Dear LORD ADVOCATE, A few clays ago I left you some papers sent to me by Messrs. Tinman & Co., Dunfermline, Solicitors, relating to the case of Mr. Grossett who had been sentenced to a term of imprisonment … you said that such questions were a matter for the Ministry of Labour for whom he was partly acting. Since then I have made inquiries … I am now of the opinion that it is necessary to have an inquiry made into the conduct of the Sheriff. Had he given a balanced legal judgment"—

Mr. Deputy-Speaker (Colonel Clifton Brown)

The hon. Member has just mentioned that he suggested an inquiry into the conduct of the sheriff. It is out of Order to do so because that is casting a reflection on one of the judges.

Mr. Gallacher

Then I will merely say that I wrote a letter to the Lord Advocate. Hon. Members will probably appreciate the tone of that letter. I received from the Lord Advocate a letter dated 30th January, in which he said: Dear Mr. Gallacher, I think you are under some misapprehension with regard to the position of the Sheriff. The case was brought under Defence Regulation 58A in respect of an alleged failure to comply with a direction of the local national service officer to perform services which, in the opinion of the Ministry of Labour, the accused was capable of performing. The Sheriff had no jurisdiction to consider whether or not an accused was in fact capable of performing this service. I ask hon. Members to note the words "no jurisdiction."— He was bound to accept the direction as being a proper direction. He was "bound" to accept it. I therefore see no grounds for any criticism of the Sheriff. The other matters which you raised are not for me to deal with. Here is the very situation which the other day I said existed and which all of the legal men denied existed. It does not apply to employers. You could not have such a situation existing in the governing class. I challenge the Lord Advocate when he gets up here to-day to make all kinds of excuses or present arguments about this case of Grossett to give me the name of one employer in Scotland or in any other part of the country who has been treated in that way. This is an attitude on the part of the ruling class similar to that which they have been in the habit of holding towards the coloured peoples of the earth. There is one law for them and a different law for the others. This man was found guilty before going into court. Everything in connection with the case was decided before the case went into court. As I said in another letter to the Lord Advocate—but because I made the suggestion in that letter that the sheriff should get a term of imprisonment him self it would not be permissible for me to read it—this matter is very like the Inquisition. The victim is put through the ordeal and then is handed over to the civil authorities for sentence.

I asked the Lord Advocate to pass the material over to the Secretary of State for Scotland and to ask the Secretary of State to intervene in order to get this man liberated. This man's character never had a stain. He has a clean record but he met with a series of accidents in the pit. Of course, the Lord Advocate will tell the House that up to the sixth accident the man still kept on working. The Lord Advocate does not seem to understand that after six accidents, a seventh accident, a leg broken in two places, the result might be a cumulative effect making the man incapable, physically and nervously, of engaging in this work.

Perhaps when the Lord Advocate thinks of work in a pit he imagines somebody sitting down to a bench. Perhaps he imagines a man reading a paper upon how to get coal without using a pick or how to get coal into the hutch by itself. I would like to see the Lord Advocate going down to the pit face and trying a bit of work there. I ask him to consider whether there is any justice in this matter at all, when a man who has had several terrible accidents as this man has had should be forced under the Defence Regulations to go down into the pit again. I am certain that there is not a Member of this House with any intelligence—of course that rules out quite a lot of Members—who would agree with regulations being applied to force a man who has suffered as this man has suffered to go back to such a heavy task.

I will finish with the letter I received from the Secretary of State for Scotland. I will read only part of it: You will appreciate that, as Secretary of State, I have no jurisdiction in regard to the Local Appeal Boards, which are set up by the Minister of Labour and are responsible to him. Messrs. Tinmans' remarks in regard to the proceedings before the Board in this case, and to the qualification of the certificating doctor, are thus entirely for the Minister, and I am sending a copy of the correspondence to him. As regards the sentence imposed upon Mr. Grossett I understand that, in view of the mitigating circumstances the sheriff imposed a sentence lighter than has been customary in similar cases. That is signed "Thomas Johnston, Secretary of State for Scotland"—a pronounced Socialist—and he has the temerity to write such a thing as that about a worker who has committed no real offence, a worker who, if his case had been judicially considered in the courts, would never have been found guilty. It it had been possible to consider his case judicially, if it had been possible to bring in the doctor who certified that he was unfit for work, if it had been possible to bring in Mr. James Coope, the Secretary of the Fife Miners' Union, if it had been possible for a Court to consider this evidence, he would never have been found guilty and never have been sentenced. But the Sheriff had no jurisdiction. The Executive decides, and the Sheriff has nothing to do but pass sentence at the behest of the Executive. And such a sentence on a man of this kind, on a man who has not been just working but working hard, but who felt completely unable to go to this particular job. When he comes into court, the Sheriff, instead of holding over sentence to give the man a chance to consider the situation—

Mr. Deputy-Speaker

I am afraid the hon. Member is criticising the sheriff again, and the sentence he inflicted. That is out of Order.

Mr. Gallacher

I am sorry I have got out of Order again, but I have very bitter feelings about this. I appeal to the Lord Advocate to do something about it. I say that the Lord Advocate in this case has shown servility to the Executive or a vicious attitude towards a worker, which should not be tolerated in any circumstances. I demand of him an inquiry into this whole question of the operation of the law in regard to this man and, if necessary, compensation for the undeserved suffering he has had to endure.

Mr. Gordon Macdonald (Ince)

I could not wish to come to this Box to speak on anything better than a miners' case. I wish to put a few questions. These are very difficult cases. There are men who have no objection whatever to going back to the mines provided that they are fit to go back. But these men have been in the mines, they know the work of the mines in all its difficulty, and they know how hard it is for a fit man to carry on day after day, with the result that, especially where there are old disabilities consequent upon mining accidents, there is a natural reluctance to go back, based entirely on their knowledge of disability. When I heard that the Miners' Union intervened in these cases I remembered that I happened to know the miners' agent myself. I know he is a 100 per cent. supporter of this war in every way, and when he himself feels that these men ought not to be taken back into the mines I am quite satisfied that it is because they are not fit to go back.

What is the position? A man says he is unfit. He is examined and supported by his own doctor. Some other doctor is called in and disagrees with the first doctor. No attempt is then made to decide this issue; nobody else is called in, no higher medical authority, no board of doctors at all, but simply because one doctor disagrees with another it is the employer's doctor, or as it were the doctor acting on behalf of the Ministry of Labour, whose decision is final. That is entirely unfair. I am not concerned with the accusations concerning Dr. Tuke. He may be the man my hon. Friend the Member for West Fife (Mr. Gallacher) says he is. He may be the subject of contempt amongst the miners of Fife, I do not know, but I do know that it is very unfair to leave such matters in the hands of one doctor and decide a man's fate in that way.

The mining Members of this House are anxious to get back as many miners as possible in order to increase output, but they believe that something needs to be done to decide this issue. A number of men have said to me that they would be prepared to go back if they were fit, but they know they are not fit. What happens? A man's own doctor supports his contention, another doctor disagrees, and the man has to go back. I want to know this from the Lord Advocate. Is any machinery in operation to decide whether a man is fit for a certain job? How in the world does any doctor know whether a man is fit for a certain job underground if he does not know what the job is? Here is a man directed to a special job, and here is a doctor who has no concepttion—and who cannot have any conception—of what is involved in the job. He says the man can do that job, but he is not competent to say so—no doctor is. I want to know what machinery is used to decide whether a specified job is a fit job for a certain type of man.

I hope the Lord Advocate will not attempt to ride off on some of the statements made by my hon. Friend. In his enthusiasm my hon. Friend often lets in his opponent, but I do not want any riding off on any statement he may have made. I want the situation to be faced. Here is a man suffering from the results of seven accidents, and we know that seven accidents can have a demoralising effect on a man, regardless of physical injury. They can affect his mind and his nervous system. We know what mining demands, and I ask the Lord Advocate, first, how it is that the word of one doctor who contradicts another is accepted as final. I also want to know what machinery he has in operation to decide whether a specified job—a difficult and heavy job—is suitable for certain men. How is a doctor to know that a man can do such a job when he does not know the nature of the job? I would ask the Lord Advocate to examine all those questions and tell the House whether he thinks this man has had fair play.

Mr. Craven-Ellis (Southampton)

May I ask my hon. Friend whether the doctor representing the man understands the operations underground, and whether he inspected the specified job before giving his decision following his examination of the man?

Mr. Macdonald

Obviously I cannot answer that question, but my point is that very few Members of this House could say whether a man was fit for a specified job underground. If I am asked whether the doctor went to see the work I do not know; I am trying to get fair play.

Mr. Tinker (Leigh)

As a miner, I would like to put our point of view. We have been going about among the miners who have been asked to return to the pits, advising them to go back, and pointing out the need of the State for practical millers with a knowledge of mining. We realise that it is very difficult for a man who is not used to the pit to pick up mining work quickly. At the same time I have never heard of a case of a man like this being asked to return to the mine. If you were to ask practical miners whether they would advise anyone who had had a number of accidents in the pit to return to the mine once he had got away, there is not a practical miner who would advise him to return. In this case we have a man who, from the evidence, had had six rather severe accidents, which made him afraid. When you have had one or two accidents in the mine and have been off work because of them—and we have all gone through it—you have a dread of returning, and it takes months upon months to get used to the mine again. There is always that fear that another accident may happen, and you lose your efficiency because of it.

Here is a record of six accidents. What is more important than all that, is that the employers, when they were not needing miners, warned this man that if he had another accident they would terminate his employment. When a man is liable to accidents employers try to get rid of him as quickly as possible. The employers had warned this man before the war that should he meet with another accident in future there would be no more work for him. With that in his mind the man got away in his own interest and in the interests of the employers and everyone else. He is brought before this tribunal as an ordinary case. There is where we have a grievance. There should be an examination of what kind of work the man is going to. When a man returns after an accident he is put on very light work. This man had got to go on work which, next to the actual coal mining, is about the most dangerous occupation in mining. The second doctor concerned, without any knowledge of mining, declares this man is fit. His own doctor, perhaps a doctor with knowledge of mining, says he is not fit.

Has not the time come when in cases like that there should be some special men chosen to settle these points of disputes if you are to get any satisfaction from the miners and their leaders? Much as we are prepared to help, we want fair play when we are advising men to return to the pits because of the need for miners. I am not going to criticise the judge, because he probably had to do this, but I think that any judge ought to have the whole circumstances put before him and not be bound to give a penalty without hearing all the evidence. That is a point of law which requires alteration. One always looks on the judge as being completely unbiased. I am not criticising him. I have the greatest respect for county court judges, but when they have to give a decision without going into the evidence something in the law should be amended. I am very thankful to my hon. Friend for having brought this case forward. It is striking and glaring. It will help us very much if we can get some assurance that this type of case will be examined more thoroughly in future. If the Lord Advocate is satisfied there has been some miscarriage of justice some recompense ought to be ma de to this man.

Mr. Stephen (Glasgow, Camlachie)

I wish to join the hon. Members in their protest against what has happened in this case. As I see it, the grievance is twofold. There is a grievance with regard to the Ministry of Labour, and also with regard to the administration when the case leaves the Ministry of Labour and goes into the sheriff court or the county court. I am surprised that the representative of the Ministry of Labour is not alongside the Lord Advocate in the dock because, as I see it, the Ministry of Labour is even more concerned than the legal machinery in this matter. It is obvious from the case as it has been put forward by the hon. Member for West Fife (Mr. Gallacher) that this man has been very hardly treated. From my own experience in connection with the working of the machinery of these committees of the Ministry of Labour, this is not an isolated case where there has been injustice and hardship. There are many other cases. I myself have had similar cases in connection with the administration of these committees. I hope that when the Lord Advocate replies he will not say to us that, so far as the first grievance with regard to the administration of the Ministry of Labour is concerned, he has nothing to do with that because I think it is imperative that the House should have an answer to-day with regard to the methods of the Ministry of Labour in connection with these cases.

There is one point I wish to make regarding this particular case. Supposing this man is sent to work in the pit. He knows he is not fit to work there; his own doctor, who knows most about him, says he is not fit to work in the pit. Then a doctor gives evidence before the Board on behalf of the Ministry of Labour that he is fit to work in the pit and the committee of the Ministry of Labour take this doctor's advice and the man is ordered to go down the pit. He does so. He has all that knowledge, his own know ledge of himself, and the medical evidence in support of his claim. As the result of the man not being fit there might be a tremendous accident in that pit. There are all these accidents taking place in the pits to-day. It is intolerable that these things should happen and that on the evidence of one doctor like this a committee is swayed into saying to a man who is utterly unfit, "You have got to go down the pit." That man is thinking not only of himself but of the lives of others when he refuses to go down the pit.

I believe that the people who should be put into the dock are the people who were responsible for this decision. I join in demanding an inquiry into the conduct of this commitee. I want to be satisfied to-day by an assurance from the Government that there is to be a full inquiry into the working of this committee. I would like to know the names of the individuals who came to this decision. I think the House is entitled to know who were the members of that committee, who in view of a man's own record of seven accidents, in view of the medical evidence in support of his plea, came to this decision that he should work down the pit. It seems to me that the people who came to a decision like that are a public danger. They should be removed from the position of responsibility which they occupy at the present time. I hope we shall get their names and a promise of an inquiry into their work.

The fact of the letter of the Secretary of State for Scotland shows that the sheriff, in coming to his decision when the man's case was put before him, was, in the opinion of the Secretary of State for Scotland, influenced by the strong case that was put forward with regard to the man's medical condition. It is obvious that there is something wrong with the second stage of the machinery in that the judge is not in a position, when a statement is made in favour of an individual, to refer back for consideration a case to a committee which has acted in the way which this committee did.

I would suggest a change in the legal machinery, so that where the judge has any doubt as to whether the decision of the committee has been right he should have power to refer back when the facts are put before him. The Lord Advocate may tell me that it is putting a big responsibility on the sheriff or the judge to ask him to review the decision of a committee which has been appointed to go into all the facts, and that he is not really able to review those cases. But I think that when it seems to him that something glaringly wrong has taken place, he should have power to refer back. There are two points that I wish particularly to stress. There should be an assurance that an inquiry will be made into the committee which came to this decision, that the case will be fully gone into, and the medical people involved on both sides brought forward to give evidence, so that the man may be cleared from the stigma which has been attached to him. Also, there should be an assurance that particular care will be taken in future, in such cases, in order that there may not be accidents in pits as a result of men who are utterly unfit being sent back to work in the pits by direction of the Ministry of Labour.

The Lord Advocate (Mr. J. S. C. Reid)

I do not in the least desire to ride off on any technicality, or to keep back from hon. Members who are rightly interested in this question of administration any facts which I have. Of course, I have not all the facts, but I think I have all those which are relevant, and I will explain what occurred before the matter came to my Department, in so far as I have the facts and in so far as I think they are relevant. This man Grossett is 45 years of age. He had six accidents between 1929 and 1938. The cartilage of his right knee was removed in 1929. A muscle of his heart was strained and one of his hands poisoned in 1930. In 1931 he had a break in his left leg. Then he was free from accidents for four years. In 1935 he broke his collar bone and, I believe, a rib as well. Then came another three years during which there was no accident, and during which, I am informed, he worked regularly in the pit. I am not certain about that, but he was certainly working in the pit again in 1938, when he strained his back. I do not know how long he was off after that, but he was back in December, 1939, when he broke his left leg. What the nature of the accident was which caused that I do not know.

It is said by the hon. Member for West Fife (Mr. Gallacher) that the man had been warned that he would not be taken on again by his employers. I do not think his employers went so far as that, but it is true that they sent him a notice, which is common form and which is sent to miners after a certain number of accidents—I do not know how many. [Interruption.] I am told that it is a regular practice, at least in this company, when a man reaches a certain stage, to send something in the nature of a warning, but not necessarily a final notice that he will not be taken on again. It may only be a practice of this company. How long the man was off work after December, 1939, I do not know. The next thing I know about him is that in September, 1940, he was at work as a foreman on a concrete shuttering plant on the Rosyth housing scheme. He worked there until the date of this prosecution. So far as I know, he was able to carry on that work efficiently and satisfactorily.

Mr. Gallacher

In view of that remark, would the hon. and learned Gentleman mind explaining the difference between the work of a stripper and the work of a foreman on a concrete shuttering plant?

The Lord Advocate

I am not suggesting that they are comparable. In fact, they are quite different. Everyone knows that his work as a foreman was above ground, while that as a stripper was below ground. Whether the actual physical effort is greater for one than for the other, I do not know. Both require considerable physical strength and dexterity. It may be that the work as a stripper is harder.

Mr. Gallacher

I would say it is.

The Lord Advocate

I would not con test that for a moment. I do not suggest that, because the man was engaged on concrete shuttering, that proves that he was fit for stripper's work. In 1941 he was due, like all ex-miners, to register. He registered as an ex-stripper, and stated that he did not want to go back to work in the pit. On 25th August he was examined by Dr. Tuke. It is a little regrettable that the hon. Member went out of his way to attack Dr. Tuke. I have ascertained that he has a very high reputation locally and has been engaged by the Ministry of Labour to examine many people, and that he knows the coalmining industry better than most doctors. I am not going to agree that there is any ground for personal criticisms of Dr. Tuke, either in this case or in any other.

Mr. Gallacher

What about certifying a man who has lost his eye in an explosion—

The Lord Advocate

I am not going to be led off into discussing any other case. The man was certified as fit by Dr. Tuke on 25th August. He was directed on 6th September to start work as a stripper. At this stage, I might remind hon. Members of how this direction comes into operation, under the Defence Regulations. Regulation 58A says: The Ministry of Labour and National Service or any National Service officer may direct any person to perform such services … as may be specified by or described in the direction, being services which that person is, in the opinion of the Minister or officer, capable of performing. That makes it quite clear that the question of whether a person is capable of performing the service is a question for the Minister or officer, and for nobody else. If here is any misdirection, the responsibility lies upon the officer who gave the direction and ultimately upon my right hon. Friend who is answerable at this Box for a misdirection of that kind.

Mr. G. Macdonald

Is not the decision to some extent reached on the medical evidence?

The Lord Advocate

As far as the law is concerned, there is no limitation upon how my right hon. Friend or his officer may reach his decision. He is not bound to consult anybody at all, but in the interests of fair play and reasonableness somebody must be consulted, and in point of fact a doctor is consulted. That is the first safeguard, and it is a very valuable safeguard, and it was adopted in this case. Then I come to a safeguard which, though it is not statutory, is under the Regulations, a national Order. A local appeal board is set up for the purpose of advising the Minister as to whether or not he shall issue a direction in a case where there is controversy. I am not responsible for, nor am I familiar with, the working of these local appeal boards. I can only speak as a layman in the matter, but I understand that this board, as other boards, was composed in the usual way. I do not know the names of the members, and I do not know what procedure they followed in this particular case beyond the fact that I understand they had before them three medical certificates. One was from this particular Dr. Tuke to the effect that the man was fit, and the others were from a Dr. Stirling and another—I am not sure whether these were in the same document or not—to the effect that the man was not fit. I do not think that the certificate contained any details.

I do not know how far these doctors are capable of appreciating exactly the differences with regard to physical fitness between a stripper and a miner, but I presume that they have a pretty good knowledge of the conditions in their own part of the country. Doctors in these particular areas always have such knowledge. I think we may take it that when these doctors express their opinion whether a man is fit or not, they have a good idea of the duties which he is to be asked to perform. I will not put it any higher than that. I am informed that this opinion having been put before the local appeal board, the board decided unanimously that the man was fit for this particular work. They made a recommendation to the National Service Officer, who—and it is his responsibility—having received the advice of the appeal board, reissued his directions. All this is a pretty good safeguard. First, you have to have a doctor, and secondly, you have to have a tribunal of this character, and if the tribunal are unanimous, that is a pretty good safeguard.

Mr. G. Macdonald

This tribunal is really deciding a medical question where you have one side saying that the man is not fit and the other that he is fit. They have to decide between these two, and would it not be far better that a medical man should decide a medical issue rather than three laymen?

The Lord Advocate

That is a question of policy, and I have no doubt that my right hon. Friend will, if this is the view of hon. Members, opposite, consider it, but I know that in regard to other cases, it is not always thought advantageous that the final word should be that of the medical referee.

Mr. Macdonald

It should be so on medical questions.

The Lord Advocate

Not always. Sometimes it is preferred that there should be a lay tribunal to adjudicate between opposing medical views. Though I hold no strong views on that question, there are some people who say that on purely medical questions you should leave it entirely to the doctors, and there are other people who say that it is much more satisfactory to have a layman to adjudicate between opposing medical views. That is the system adopted here. The laymen adjudicate. They have before them not merely the medical certificates but the history of the man.

Mr. James Griffiths (Llanelly)

I appreciate the point as to the wisdom of letting a doctor settle medical questions, and I also agree that a layman is often better than a doctor, but this is the direction to a particular kind of work with which we, as miners, are familiar, and we appreciate the nature and the risks of such work. Can the Lord Advocate say what was the experience of the laymen represented on this tribunal and whether they were by their experience qualified to say whether this man was fit or not?

The Lord Advocate

I really cannot say, because I do not know who they were, but this was a layman's appeal board of the coal mining industry, and I assume that all three members, or at least the two technical members, would have a pretty good knowledge of the mining industry in the district. I make that as a fair assumption, and I can easily find out if any further details are asked for.

Mr. Bernard Taylor (Mansfield)

Is it true to say that this Board would be familiar with the mining industry? Is it not the fact that these appeal boards are constituted from the personnel of the Court of Referees?

The Lord Advocate

I am afraid I cannot answer that question. All I know is that there is an appeal board which examines into coal mining cases, and I assume that the people who sit on that board know something about coal mining, though it may be that they know nothing about it.

Mr. J. Griffiths

If they know nothing about it, it will make a difference?

The Lord Advocate

That is a point that I would rather not pronounce upon. This is the responsibility of my right hon. Friend. They have been carrying on this work for six months, and I am not aware of any criticism having materialised up to date with regard to the decisions of these local appeal boards.

Mr. Tinker

We are only now seeing the effect of the working of these boards?

The Lord Advocate

It may well be so. I do not express any view. I have no responsibility in the matter, and I am not in a position to express the view of my right hon. Friend, but we live and learn, and I am sure that if any of us discover in any organisation something which is defective in any way, we try our best to put it right. I cannot go beyond that, and I leave it there. As I have said, this man was issued with a fresh direction, following on a report from the local appeal board, to start work on 22nd September. He did not go. This is war time, and that was the equivalent of an order, "You shall go." In the earlier investigations that took place statutory and other safeguards operated. We got to the stage where the order, "You must do that job" was issued. This was an industrial order; it might have been a military or a Civil Defence order. The man did not comply with that order. There was another examination by the doctor to make sure that the matter was gone into carefully, and his previous opinion was adhered to. Thereafter, the man was prosecuted.

That was where my responsibility began. I was responsible for prosecuting the individual, and if I thought some new fact had come to light since the National Service officer issued his direction, which would put a new face on the case, I would have had no hesitation in refraining from prosecuting, but if the National Service officer, representing my right hon. Friend, after all proper safeguards had been observed, issues an order which is disobeyed, it would need a very strong case to justify my saying that the disobeyer of the order should not be prosecuted.

Mr. Gallacher

The right hon. and learned Gentleman is using legal terms now. He said, "This man shall be pro secuted." What he meant was that following on the decision of the National Service officer, he would submit the man to court for sentence. If you are prosecuting someone, it is understood that there can be a defence. In this case there was no possibility of a defence, and, therefore, there was no question of prosecution. The right hon. and learned Gentleman accepted the instruction of the officer and submitted this man to the court.

The Lord Advocate

I cannot possibly accept that description of the matter. This man received an order. It might have been a military or a Civil Defence order for disobedience of which he could be prosecuted, and he would have just as much or just as little defence as in the case of a Civil Defence order or a military order. I do not see why the position should be substantially different once you come to the realm of orders. I had to decide whether a man who deliberately disobeyed an order should be prosecuted.

Mr. McEntee (Walthamstow, West)

Was he entitled to be represented by solicitor or counsel?

The Lord Advocate

Of course. The man was represented. A solicitor took up the case next day.

Mr. Gallacher

What for? The man had his counsel there, but it was not for anything other than to make the appeal on behalf of the man for mitigation of sentence. It was not for defence. There was no defence.

The Lord Advocate

I hope I have not misled anybody. I think I made it clear that the question of whether the order was justified is not a question for the court. The question for the court is whether the man disobeyed the order. In this case it was alleged that the reason the order was not justified was that the man was not physically fit, but many other reasons might have been alleged as reasons for saying that the order should never have been made. He might have said that he had not the necessary technical skill and should not be sent to a job of this sort because he did not know how to do it; or he might have said that his circumstances at home, and so on, made it quite unreasonable that he should be ordered to go away and do such a job. I do not think it is reasonable to suggest that, on issues of that sort, the court ought to be entitled to overrule the order and say that it should never have been made.

Let me emphasise that in the following way. At the present time the National Service officer knows that he has the final responsibility and that if he goes wrong, he or his chief, the Minister of Labour, has to answer alone. But sup pose the hon. Member's suggestion were followed and it were made competent, by changing the law, for the court always to consider in the last resort whether or not an order should Lave been given, I suggest that you would thereby so weaken the responsibility of the National Service officer that you might do a great deal more harm than good. At present the National Service officer knows that he has the responsibility, but if he could say, "Well, if I go a little bit too far, the court can always put me right," would that be an advantage to anybody? I suggest it would not. Therefore, although it is not for me to argue the question of policy—for my right hon. Friend is entirely responsible for the administration of this code of legislation—it seems to me, as a humble layman in these matters, that you might do a great deal more harm than good if you introduced the court as the last judge on questions on the reasonableness of orders.

I think I have given every relevant fact that I know of, except that I am informed that this man ultimately resumed his work as a stripper. He has not been there long enough to say whether it will injure his health, or whether he will be able to go on with the work or not, but I am informed that on 27th January he resumed work, and, as far as I have been able to ascertain, he is still working. I do not say, of course, that the period from 27th January to this date in February is sufficiently long to enable one to say whether or not he will ultimately be able to remain a miner, with a full output of work, until the end of the war. It is too soon to say. But I think it right that the House should be informed that he has been back at work for some little time

Mr. Gallacher

What about the 14 days' imprisonment?

The Lord Advocate

He was sentenced to 14 days' imprisonment, but as the hon. Member was out of Order in discussing that, equally it would be out of Order for me to discuss whether it was a proper sentence. What I have been arguing is that this was a proper case in which I ought to have prosecuted and, further, I have put my view of the law, which corresponds with that of the sheriff, that in this case the sheriff was bound to accept that the order was properly given. Those are the two points with which I am primarily concerned in this case—the propriety of prosecution and the proper interpretation of the existing law.

The other point which has been raised, the adequacy of the safeguards in connection with the appeal to the local appeal board, is not a matter on which I can say more than I have done. Neither is it, I think, a question of whether the law ought to be altered. On that I have a pretty clear view, although I am not responsible and am somewhat of a layman in the matter. On the adequacy of the appeal board, I think that I have given the House all the information I have. I have suggested that the framework of the safe guards in this case should be adequate, and there is nothing in the history to show that any injustice has been done. As I said, we shall not be able to see for some time yet whether the man was capable or is capable of being employed underground on this work—I do not think that it is possible to decide at this stage whether the direction was right or wrong, it is certainly impossible now to say; but it was never possible to say that the direction was so clearly wrong that it should never have been given. You are bound to have cases where it would have been better that directions should never have been given. It is inevitable, but I claim that in this case there was no dereliction of duty on behalf of the National Service officer, and no flaw in the procedure which was carried out. Accordingly, I have done all I can to inform the House about this case, and to explain why in our view there really is no ground, for criticism.

Mr. Gallacher

The Lord Advocate says it is desirable that the National Service officer should be in a position to issue a direction without any question of the courts deciding whether it is a good or bad direction. Is it not the case that when a National Service officer issues a direction in a case of this kind, he is ipso facto making the man guilty of an offence, and would it not be better if the court after due consideration should decide whether or not an offence had been committed?

The Lord Advocate

The hon. Member seems to assume that a man is necessarily going to disobey an order. I hope that is not a common outlook just now. Whenever an order is given in the Army or in Civil Defence, it is an offence to disobey that lawful order, and you can not get out of it by saying the lawful order was unreasonable. That is the case in a nutshell.

Mr. Gallacher

I wish to inform the House that the question is so unsatisfactory that I will take a further opportunity of raising the matter with the Minister of Labour.

Question, "That this House do now adjourn," put, and agreed to.