HC Deb 06 April 1943 vol 388 cc524-36
Sir Harold Webbe (Westminster, Abbey Division)

I beg to move, in page 12, line 4, to leave out Sub-section (2).

I think this is an Amendment which ought to receive the attention of the Committee. This is the most important definition Clause in the whole Measure. Reference was made to it at an earlier stage in the consideration of the Bill, when Clause I was under discussion, and various questions were put to the Minister as to the meaning of certain words. We were then referred to Clause 17 for the definition of a "person employed". I submit that the explanation then given of the words in the Bill was not satisfactory, and I ask the Solicitor-General or someone else on behalf of the Government to give us a more precise idea than we have yet had of the meaning of these extraordinary words in the Sub-section: any worker who, for the purposes of any undertaking or part of an undertaking, performs any work in pursuance of an arrangement express or implied made by the worker by way of trade with the persons carrying on that undertaking. What limit is intended by this Subsection (2)? I know that hon. Members do not like the quotation of absurd examples which are likely to occur, but surely the man who delivers newspapers to a hotel is performing work under an arrangement made "by way of trade" with that hotel. Is it intended that he should be regarded as an employee of the undertaking? This phrase is so completely indefinite that it seems to me that the Bill will be a gift for the lawyers for years to come. I do not know whether it is the intention of the Minister to present the legal profession with opportunities for discussing such points as this from year to year, but here is a vital definition Clause, which seems to me about as indefinite as any Clause could possibly be. Therefore I ask for some indication of the limitation to be placed on these words: in pursuance of an arrangement express or implied. I can conceive of nothing which is ever done by, or for, or to, or with any kind of catering undertaking which is not done by arrangement express or implied. Anyone who has in any way the remotest connection with a catering undertaking must fall under this definition of employee. I hope we shall have some definiteness brought into this definition Clause.

The Chairman

I think I should point out to the Committee that we have, at any rate in part, discussed this matter already. I hope therefore that the Committee may agree to the discussion being a brief one.

Mr. Colegate (The Wrekin)

It is true that we may have discussed this matter previously, but the fact remains that we have not received satisfaction, in the sense that no form of words has been given to us which clears up this obscurity. My hon. Friend has just suggested the case of a deliverer of newspapers; I wish to put forward the case, which is rather more pertinent, of the window cleaner. Very often a large number of men occupy a very considerable portion of their time going round in a certain order the windows of a hotel, which is under a contract with a window-cleaning company. Do such men come under the interpretation? It is obvious that I am not a lawyer. There may be some peculiar interpretation, but we cannot get away from the fact that a man engaged in window cleaning in a hotel, under a regular contract of service for a window-cleaning company, might come under the definition.

I have made a number of inquiries in my constituency, and I find that the Bill has given rise to a great deal of uneasiness, for special reasons connected with the war. In certain areas in my constituency, a vast number of people have been brought into the catering industry because the Government have definitely asked people to do what they can to put up a number of workers who have been brought into the locality. My constituents are wondering how far they are affected by the Bill, and it is not unfair to ask the Government to make a definite statement and to say whether or not those people come under the Bill. I therefore ask the Solicitor-General to give us a definition which will meet us on this point.

The Solicitor-General

I am very chary of taking up much time of the Committee on this Amendment, not out of any disrespect for my hon. Friend who has raised it, but because I spent a good deal of time on the first day of the Committee stage in dealing with this point. Therefore, I propose to put my answer quite shortly, and I hope the Committee will not take it as any disrespect to itself. The first point I tried to make clear was that the words "arrangement by way of trade" are used to cover the case where there may be a contract which has not got that power to control the method of doing the work which is the essential of a contract of service. It will be within the recollection of the Committee that I developed that point at some length on the previous occasion.

The other points I want to deal with are the safeguards, on which my hon. Friend the Member for the Abbey Division (Sir H. Webbe) placed importance a few moments ago. Those are that the arrangement must only be one by way of trade. The Committee will appreciate that these words have a saving effect for those cases which concern my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick), the border-line cases. It is left as an arrangement by way of trade, so that it is open to the court to find, in a proper case, that it is merely an arrangement and not an arrangement by way of trade.

The second point is that the arrangement must be with the proprietors of the undertaking; and the third point, which was worrying my hon. Friend the Member for the Abbey Division, is that the work must be that of the undertaking and for the purposes of the undertaking. I must ask him to take it from me, because this is as I understand the law of the position, that it would rule out the newspaper deliverer and the window cleaner. I did develop this matter at considerable length before, and I now put, with those points, the gist of the argument again. I hope that the Committee will now decide that this is a definition apt to cover and safeguard the particular classes of worker with whom we are concerned.

Sir Waldron Smithers (Chislehurst)

I am sorry to prolong the Debate. [HON. MEMBERS: "Why?"] Because the Chairman has asked us to be as short as possible. I will be as brief as possible. I will ask the Minister to be a little more specific in telling us the classes of employees in these undertakings who come within or without the scope of the Bill. I wish to put forward three instances from my own Division. The widespread nature of the catering business brings in all sorts of people, and I ask that these specific questions be replied to. At one hotel in my Division the proprietor is very keen on horses. He keeps horses, and also an ostler. He lets the horses out for riding and for work. At the present moment he is doing work under Government contract. Does the ostler come within the scope of the Bill? At another hotel the proprietor, a very pushing man of great initiative, runs two or three motor cars for hire purposes. There is a chauffeur who drives those cars and looks after them, and who is housed within the buildings of the establishment. Would the chauffeur come within the purview of the Bill? There is another case of a man in the country who keeps a very good hotel and has tried very hard to comply with the food Regulations and to help the food industry. He has done his best to grew as much stuff as he can. He produces not only vegetables and eggs, but he keeps chickens, ducks and geese for the use of the clients of his hotel. Some of those clients are officers serving in Government Departments who cannot get home, and who go to the hotel, not only for their rest, but for their food and drink. Would the man who looks after the production of foodstuffs—there is, as a matter of fact, more than one man—come within the purview of the Bill? All these people are strongly opposed to the Bill, both workers and managers, and they want to know where they stand.

Major Petherick

I do not think the matter is really quite clear, in spite of the speech of the Solicitor-General. My own view is that confusion has been caused owing to the fact that the definitions are spread between Clause 1 and the interpretation Clause which we are now discussing. I do not wish to go into discussion of the sort of point which we had in the earlier stages of the Bill, but I would ask the Solicitor-General whether, taking Clause I and the present interpretation Clause together, I should be right in saying that, in order for a worker to come under the Bill, three main conditions would have to be fulfilled. One is that the undertaking must be wholly or mainly concerned in supplying food and drink. The second is that the workers must be employed in such an undertaking, as one can see by Clause 2 (1). The third is that there must be an arrangement, express or implied, between the workers and their employer. Would it not therefore be better, in view of the confusion that exists, to re-arrange as it were part of Clause 1 and the interpretation Clause—put them together in the same Clause—and thus make it perfectly clear in the Bill what are the conditions which have to be fulfilled before a worker comes under the Bill? I commend that to my hon. and learned Friend and ask him to look into it to see whether it is possible so that the worker or the employer can look at one Clause of the Bill and see whether they are being covered or not.

Mr. Craik Henderson

I rise to express my anxiety about this interpretation Clause. I really would ask the Solicitor-General to consider it again, because in my opinion it goes much further than he has indicated. This "implied" arrangement has a very wide effect, and "by way of trade" is a phrase requiring a good deal of consideration in conjunction with this wide power over private arrangements. I ask him that this Clause should be very carefully considered to prevent future difficulties.

The Solicitor-General

In answer to my hon. Friend the Member for Chislehurst (Sir W. Smithers), I ask the sympathy of the Committee in giving a decision on what must be an incomplete statement of the facts. But I want on the other hand to be quite frank with the Committee, and on my understanding of what my hon. Friend said the three persons he mentioned did work for the purposes of the undertaking, in the employment of the undertaking, that is, under an arrangement with the proprietors by way of trade, and my view on the necessarily incomplete information, is that they are in the Bill.

Sir. W. Smithers

Did my hon. and learned Friend say they are or are not in the Bill?

The Solicitor-General

I said that they are within the purview of the Bill. In answer to my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick), I have considered, and I have gratefully received letters from hon. Members, one in particular, about this question, and have addressed my mind to it, and I feel it is better that the question of activities and undertakings should be dealt with first of all. I submit it is dealt with quite clearly—and then we should in the ordinary way deal in a definition Clause with what is an extended definition of "worker." I feel there are certain difficulties which have presented themselves to hon. Members, and that the position is made clearer by separating consideration of "undertaking" and activities from the consideration of "worker". I want to assure my hon. and gallant Friend that I have not ignored this point, but have directed my mind to it.

With regard to the point of my hon. Friend the Member for North-East Leeds (Mr. Craik Henderson), I am afraid that I do not share his difficulty about the word "implied". I think it is absolutely essential that you must cover both implied arrangements and express arrangements; otherwise you will be in the intolerable position of people saying, "There is no contract in writing, no formal arrangement." In that way you would have evasion of the provisions of the Bill. In our view, and I personally believe it is right, this is a protective Bill. Therefore, you have to draw the provisions largely and generously to give a full measure of protection. That is what we have done, and I personally would ask my hon. Friend to consider, because he knows the difficulties of limiting the Measure to express contracts, whether in this matter it is not necessary to cover implied arrangements as we have done.

Captain P. Macdonald

I feel rather alarmed at the Clause as it now stands. The more I hear, the more fearful I become. I agree it is very difficult to decide what should come within the provisions of this Bill. At the same time the right hon. Gentleman must know for whom he is legislating, and if he has in mind persons directly employed in an hotel, he ought to have some idea who they are. What I want to know is whether the Bill covers such ancillary trades as have been mentioned. For instance, do laundries come within the purview of this Bill, or chimney sweeps, or plumbers, people who are very often employed by an hotel? I would ask the hon. and learned Gentleman to consider this in his difficulty in trying to lay down a definite rule. If an employee in an ancillary industry is already covered by a trade board will the right hon. Gentleman give an undertaking that that employee will not be brought within the purview of this Bill?

Mr. Bevin

I gave an undertaking the other day that they would not be covered by two boards, and I undertook between then and the Report stage to consider words to make the question of duplication quite clear. I think the hon. and gallant Member is covered on his laundry point.

Lieut.-Colonel Sir Cuthbert Headlam (Newcastle-upon-Tyne, North)

What is meant by the words "by way of trade"? Is that the usual expression to mean "by way of service"? I take it that this interpretation means that all those who are employed directly or indirectly in the catering trade should be included in this definition. Therefore, I want to know whether the words "by way of trade" mean what I should call "by way of service." I only want an explanation.

The Solicitor-General

I ask, if the Committee will allow me, to deal with this point briefly, because I have emphasised it and dealt with it at considerable length earlier. The position is that if the word used were "service," that would connote a right to control the way in which the other party to the contract does his work. We want to cover possible positions where that control is absent, and therefore we have said, "by way of trade," including those words in order that a bona fide family arrangement, something that is merely a little help being given by a member of a family now and again, will not be included. That is the point of the words. I think they are the best words.

Sir W. Smithers

I am sorry to return to the attack, but the reply of the hon. and learned Gentleman was so unsatisfactory because really there are many people up and down the country in what are called the ancillary trades. They ought to know where they stand under the provisions of this Bill, because I think this Bill creates the impression in the minds of the public that it is a Bill, rightly or wrongly, to protect or to have proper arrangements between the proprietors of catering establishments, their scullery maids, washers-ups, waiters and all that kind of thing. Does the hon. and learned Gentleman really tell me seriously that the ostler, the chauffeur and the gardener come within the provisions of the Bill? It is really hard to believe. This is a Bill, as I understand it, to regulate wages and hours of work. But the ostler in charge of horses has to be there seven days a week, early in the morning and late at night, to feed and water them. Suppose the chauffeur comes into this Bill. If he is told that he can work only so many hours a day, and then there is a late job to be done, is he prevented from doing it? The gardener's job is seasonal. In the winter he has to work shorter hours, and in the spring and summer he has to be up early and then to go back at night to do the watering. Not even the Minister of Labour can overcome the laws of nature. I would ask that we should have a better definition of this Clause. Unless there is a better definition given, or an undertaking by the Government that we shall have a better definition and a clearly defined list, in a Schedule of people who are included, I shall have to divide the Committee on this matter.

Sir Irving Albery (Gravesend)

What I am mainly concerned about is the person who has to try to ascertain whether he comes under the Bill. It appears to me from what the learned Solicitor-General said, and from the course of the Debate so far, that everybody who happens to be employed—interpreting that very widely—by a caterer will come under the provisions of the Bill. If that be so, it does not matter very much that there is no Schedule stating who is within the scope of the Bill and who is outside, because practically everybody is within it. In that case, it would have been better if that could have been definitely stated here. Then we should know where we are. I do not think a Bill ought to go through the House with a Clause in it which, however perfect it may seem to the learned gentlemen of the legal pro- fession, is going to leave people who come under it in a state of confusion, and which consequently will lead to a number of legal cases. If we are to be assured that the meaning of this Clause is that every conceivable person employed in the catering industry is to be brought within the purview of the Bill, people will know where they are. If, on the other hand, there are certain forms of employment which will not be included, this Clause needs revising. It would be far better to have some Schedule that will say which people are brought in and which people are left outside. If there are exceptions, information will have to be given, and I think it would be much better that it should be made clear in the Bill.

Brigadier-General Clifton Brown (Newbury)

May I express my agreement with those who have asked for a clearer definition? We do not know what we are voting for in the Bill. The Solicitor-General said that we should look at this from the protection point of view. That is what we want to do. We want to stop interference with the trade unions which some of these people might come under. This Clause has been arranged from the point of view of the towns. What about the country? What about the seaside places? What about the boatman, it may be on the Thames and it may be at the seaside, who works for the inn-keeper? Does he come under this provision, with the gardener and others? That would be an interference with businesses which have nothing at all to do with catering. This is a Bill to interfere, and not to protect. If the Minister would look into the question from the point of view of the country, and see the damage that is going to be done by interference, instead of protection, he would think twice about not defining the position in a way that people will understand. The Minister when he talked to us privately upstairs—very persuasively, I thought—told us that this Commission was going to deal with "A" "B" and "C" hotels. The "A" people—those who look after the big hotels and so on—will be in a quite different position from the "B" and "C" people. I am thinking of the "C" hotels. Will the Minister assure us that the people responsible on this Commission for the wages and welfare of the small men of the "C" hotels are going to treat them differently from the people of the "A" hotels, and are not going to interfere with the ancillary trades?

Sir H. Webbe

I took the responsibility of moving this Amendment, although my name did not appear on the Paper, because I felt that the Clause was a vital one and that it was essential that we should have a clear definition in the definition Clause. The whole of the discussion has proved, to me at any rate, ample justification for my having moved the Amendment, We have had instance after instance of doubt brought before the Committee. My hon. and learned Friend has intervened three or four times, and, with all respect, I would say that every time he has introduced a fresh doubt without resolving the one which he sought to dispel. He has made statements which leave some of us not knowing whether we are on our heads or our heels. He says that the cleaning of the windows of an hotel is not part of the undertaking. Surely the cleaning of the windows of an hotel is just as much part of the business as making the beds. If that kind of thing is to happen now, what will happen when the courts have to determine the meaning of this quite indefinite Clause? It is clear that we could go on all day producing doubts which no one on the front bench could resolve. I make bold to say that there are not two Members present who would agree on what this Clause means. I would urge the Minister and my hon. and learned Friend to accept the suggestion made by my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick) and to reconsider this whole matter between now and the Report stage, with a view to bringing to the House some definition which is understandable not only by the lawyers—and the lawyers to-day all differ as to what the position is—but to the ordinary man-in-the-street, the long-suffering citizen who wants to understand the rules by which he is bound. If my hon. and learned Friend will look into this matter with a view to producing some definition which means something and which is not vague and indefinite, as at present, I will not press the Amendment.

Viscount Hinchingbrooke (Dorset, South)

I think the Committee is rather unhappy about the meaning of the Subsection. I would join with my hon. Friend the Member for the Abbey Division (Sir H. Webbe) in asking the Solicitor-General to be good enough to look into this question before the next stage. I do not think the Committee would wish to see an enormous Schedule of the various occupations attached to the Bill. It would take on the character rather of the Minister's own great Schedule of Reserved Occupations, with 100 or 150 pages. What I would like, with great deference, to suggest is that words might be inserted into this Sub-section making it clear that the greater part of a particular individual's time must be associated with the catering business, or alternatively that he must receive the greater part of his pay from the catering business, before the terms of the Act would apply to him. If some such undertaking could be given, it would help the Committee.

Sir W. Smithers

Would the Minister also consider to what extent part-time people employed in the industry come within the purview of the Bill? There are one or two other classes of work which have been mentioned to me. What about the dance bands? What about the artists who give shows at some of these hotels? The Minister wants to make the hotel business more popular. Suppose he starts casinos. Would the croupiers come under the Bill? As the hon. Member for the Abbey division (Sir H. Webbe) has said, we should let the people of this country know where they stand. I do not see how, after all the arguments which have been put forward, the Government can refuse to reconsider the matter.

The Solicitor-General

I have listened carefully to everything that my hon. Friends have said, and I realise that my noble Friend the Member for South Dorset (Viscount Hinchingbrooke), who has shown great sympathy with the purposes of the Bill, has some difficulty over this matter, and that a number of hon. Members are in the same position. I personally have no difficulty, and I think it is correct that I have answered quite frankly and clearly any point that has been put to me. But, as I said before, I want to do everything I can to make the definition as clear and free from doubt as any definition can be. If my hon. Friends desire it, I am prepared to consider it again. I am not giving any undertaking that it will be changed, but it will be considered fully and definitely, and with great sympathy with the views put forward. I do not think that it would be right to go any further than that, but I am prepared to give the matter full consideration, and if any of my hon. Friends who have spoken have any ideas to put forward, I shall be pleased if they will communicate with me, as they have done before.

Sir H. Webbe

As I moved this Amendment, I suppose it would be in Order for me to ask leave to withdraw it. But, frankly, I am not very happy about the undertaking that my hon. and learned Friend has given. He has said that he will look at it again, but he will not give any undertaking that he will put forward an Amendment on the Report stage to give us a definition which will mean anything to hon. Members, or even to his legal colleagues. Merely to say that he will look at it again without any indication that, on the Report stage, something will be proposed to meet the very evident criticisms and doubts expressed does not seem to me to go very far. As I understand it—and I am only a junior Member—it will not be possible for us on the Report stage to discuss this particular Clause again as such, and we must rely upon some Amendment being put down which will enable us to consider this matter again properly and see whether the feelings of anxiety, which, I think, I may claim are fairly widely shared at the present moment, are to some extent allayed. I hope that the Minister or my hon. and learned Friend will give us some rather more definite assurance that something will be done to meet the obvious and agreed troubles before we withdraw this Amendment and proceed to the next Amendment.

Earl Winterton (Horsham and Worthing)

May I point out to my hon. Friend, who said that he is apparently a junior Member, that there is a very simple expedient of deciding whether he or the right hon. Gentleman is right? We have discussed this matter for a long time, and obviously we are no nearer an agreement between the Government and hon. Members than before. There is a simple and expeditious way of deciding whether or not the Government or the hon. Members are wrong, and that is to go to a Division.

Sir Adam Maitland (Faversham)

May I suggest to my hon. Friend the Member for the Abbey Division (Sir H. Webbe), to whose views I listened with great interest, that it would be a tactical mistake to divide on this issue after the most explicit undertaking from the learned Solicitor-General. If hon. Gentlemen who are interested in this Amendment insist on a Division and are defeated, they will have lost their contact. In all that has been said there has been no consideration whatever given to the common sense which, it is hoped, will be brought to bear by the Commission. It is assumed that these exceptional instances will be brought under the Bill without any definition. I must make that reservation, but still having some sympathy with them from the point of view of whether it is possible to get a fair revision, I would ask my hon. Friends to accept the undertaking.

Sir H. Webbe

I have not the slightest desire to divide the Committee on this matter. There is no clear point. I am not at issue with the Government as to whether there should be a definition at all, but I merely ask for some satisfaction. If I can interpret what has been said by my hon. and learned Friend in promising to look into this as meaning that he will make a sincere effort to produce more clarity between now and the Report stage, then I shall ask leave to withdraw the Amendment.

Sir W. Smithers

With great respect, I do not think that under Parliamentary procedure the undertaking of the learned Solicitor-General is worth anything at all. Will he undertake to put down something on the Report stage in order to give us an opportunity to reconsider and rediscuss this question?

Amendment negatived.

Clause ordered to stand part of the Bill.