CLAUSE 8.—(Amendment of certain powers to make regulations, etc.) (Hansard, 9 July 1948)

§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I beg to move, in page 6, line 17, to leave out "either."
Perhaps it will be convenient if we consider at the same time the following Amendments in the names of my right hon. Friends and myself: in line 21, leave out from "prescribed" to end of line 24; in line 24, at end, insert: (2) Where in pursuance of powers given by section sixty of the principal Act or by this Act regulations are made in relation to a matter dealt with by Parts I to IV of the principal Act, no occupier shall be liable to civil or criminal proceedings for a breach of the provision of the principal Act relating to such matters if he proves that he has complied with the relevant regulations. These three Amendments raise a point of some interest and importance. Under the principal Act—the Factories Act, 1937—the Secretary of State for the Home Department and now the Minister of Labour, as his successor in this respect, is given power to prescribe certain standards which have to be complied with by the occupiers of industrial premises on such matters as lighting, heating and ventilation. The point has arisen whether the occupier of such premises who complies with those regulations to the full, can none the less be prosecuted for a breach of the relevant provision of the Act itself. I am glad to see the Attorney-General present because he will recollect that there was a certain amount of difficulty in the case referred to on the Second reading of this Bill by the hon. and learned Member for Chester (Mr. Nield).
Subject to what the Attorney-General may say and to the fact that the matter was not left very clear in the courts in question, as I understand that decision, it was left that an occupier of industrial 736 premises who complied with the regulations could not be prosecuted for a breach of the Act It is quite clear that Clause 8 of this Measure is intended to overrule that decision up to a point—that is to say, it is designed to give to the Minister of Labour power to choose whether the regulations he makes are to be of a kind compliance with which completely covers the occupier of industrial premises, or alternatively, of a kind which the occupier of industrial premises can comply with to the full and yet be prosecuted under the Act. One can fully understand how, from the viewpoint of administrative flexibility which is so dear to our rulers in Whitehall, that may be a desirable state of affairs; but the Committee should give full consideration to this point before conferring this power upon the Minister.
It appears somewhat unjust that where the Minister has prescribed standards—and I am perfectly certain that he will prescribe from time to time the highest standards which are reasonably practicable and the occupier of premises has complied with those standards to the full, he should run the risk, none the less, of being prosecuted under the comparable provisions of the Act. On first reading that is my impression. Considerations may well be advanced to show that in certain circumstances that is a reasonable proposition, but this is a matter to which hon. Members should give due attention.
Our object in moving this Amendment is mainly interrogative. We want to know the reasons which have caused the Government to amend, or to seek to amend, the law in this respect, and to seek to amend it in a direction which prima facie appears a trifle oppressive. That is the very short point—not necessarily one for lawyers—whether or not compliance with the Minister's regulations shall be treated as full compliance with the Act. The Minister is seeking to take powers to make regulations of two kinds, one of that kind and one of precisely the opposite kind. Our object is to seek elucidation.

§ Mr. Turner-Samuels (Gloucester)
What about the point of civil proceedings? The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) referred only to criminal proceedings and has merely discussed the general aspect.

§ Mr. Boyd-Carpenter
I fully appreciate there is that aspect of the matter which, from my knowledge of the hon. and learned Member for Gloucester (Mr. Turner-Samuels), he may desire to explore. The particular aspect which I desire to explore, I have explored as fully as I wish. From this point of view the criminal aspect is perhaps the more important. It may seem to the hon. and learned Member that the other aspect is an appropriate stamping ground, in which case I wish him well of it.

§ The Attorney-General (Sir Hartley Shawcross)
I am not sure whether the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) intended to deal with all three Amendments standing in his name. Although he suggested at the outset that it might be convenient if we discussed all three I do not think his remarks covered more than one.

§ Mr. Boyd-Carpenter
I was dealing with all three.

§ The Attorney-General
I am obliged to the hon. Member and will accordingly deal with all three. I apprehended from his remarks that he was referring only to the first one.

§ Mr. Boyd-Carpenter
May I make the position quite clear, Major Milner? In accordance with what I understood to be your Ruling I formally moved the first Amendment and I discussed also the other two. If the Attorney-General feels that I did not discuss them fully enough, as we are in Committee there may be a further opportunity for me to do so.

§ The Chairman
The position I understood was that the second and third Amendments are consequential upon the first, hence all three hang together.

§ The Attorney-General
I am not sure that that is really the effect of the Amendments. I wanted to be quite clear so that I did not cover too wide a field in my remarks.
The hon. Member for Kingston-upon-Thames very fairly said he was moving the Amendment for the purpose of clarification and he certainly approached the matter in a most tentative way. I am not surprised at that. I hope to be able to satisfy him that the Amendments 738 would inevitably be inimical to the interests of factory occupiers or workmen or both. I do not know whether the hon. Member has had any consultation with the British Confederation of Employers about his proposed Amendment.

§ Mr. Boyd-Carpenter
indicated dissent.

§ The Attorney-General
I see the hon. Member shakes his head. I can well imagine he has not consulted that important organisation. If they had had the opportunity of considering his proposals they would have held up their hands in horror and apprehension at the change in the law contemplated by this Amendment. Let us see what will be the effect of the Amendment. It would be completely to destroy what is conceived to be the true purpose of the provisions in the principal Act enabling the Minister in appropriate cases to prescribe not absolute standards, but general standards in regard to the various matters to which these Sections relate; and it would be to substitute "The Minister" for "The Courts of Justice" as the person who is to decide in a particular case what is adequate and suitable provision. I am taking that particular phrase from one of the Sections; the phrases differ in the different Sections. It is exactly to avoid that situation that Clause 8 was introduced into the Bill, so as, in general, to leave it to the Courts of Justice to decide what, subject to a possible minimum standard laid down by the Minister in regard to particular factories or classes of factory, was proper in a particular case.
I can imagine nothing more harmful to the interests of either factory owners or workmen than that the Minister's regulations should themselves prescribe—except in quite unusual circumstances which may sometimes arise, but exceptionally—what is the absolute standard to be observed in each particular factory. Under the previous Sections of the principal Act, occupiers are required, amongst other matters, to make provisions for "reasonable" temperature, "adequate" ventilation, "sufficient and suitable" lighting, "sufficient and suitable" sanitary conveniences, "adequate and suitable" washing facilities and "adequate and suitable" accommodation for clothing. 739 In Section 7 of the principal Act, the Minister is entitled to make regulations determining what is "sufficient and suitable" for the purposes of that Section. That is the Section dealing with sanitary conveniences.
If a factory occupier complied with the regulations made by the Minister under that Section, he might well be, and I think that he would be, complying with the requirements of the Section, because the Minister is empowered by the principal Act as it stands to lay down an actual or absolute standard. But, in the rest of the Act what he is empowered to do is not to provide absolutely what is "sufficient," "reasonable," or "adequate" in the case of every factory, but to lay down a standard of what may be "adequate," "reasonable," or "sufficient" as a minimum standard to which the courts must have regard in each particular case. The object of Clause 8 of the new Bill is to put it beyond all possibility of doubt that unless the regulation in terms otherwise provides, what is laid down is not intended to be an absolute standard which must be complied with in every case, but a minimum or maximum standard, as the case may be.
It would be impossible to work this code of law unless one applied the principal Act as being an Act which laid down not absolute standards but general standards, either minimum or maximum—minimum or maximum, for instance, in regard to temperature, which must not be less than 60 degrees in the principal Act, or higher than a certain standard. If the position were otherwise and the standard laid down were an absolute standard which had to be complied with, and compliance with it which was a sufficient compliance with the provisions of the Act itself, these provisions enabling the Minister to lay down standards could never be used at all unless they were used to provide a standard which might be impossibly high in the circumstances of some factories or, on the other hand, unduly low in the circumstances of other factories.
Take, for example, the provision of proper washing facilities in factories. There the Minister can lay down the standard, and under Clause 8 it will become in general a minimum standard. 740 For instance—I have no idea whether I am taking the right example—but he may say that there must be one wash basin for every 15 employees, or something of that kind. That may be a very suitable, proper and reasonable standard in the case, say, of a laundry in the country, but an entirely inadequate standard in the case of a lead pencil factory, or a black lead factory in Manchester. The court would have to say, "Here is a minimum standard of one basin to 15 workers. You must comply with that and we must look at the circumstances of the factory and the conditions under which the people work and the nature of the work, whether it is dirty work, or likely to cause dermatitis, and circumstances of that kind, and decide in relation to the circumstances, whether the provision made is 'adequate and suitable.'" That is left to the discretion of the court in the circumstances of each case.
12.15 p.m.
That is the purpose of Clause 8 and I hope the hon. Member for Kingston-upon-Thames will think it is a reasonable purpose, to make quite clear what the Minister is doing when he lays down the standard and that in general it is a minimum standard. Occasionally, as in the example I gave, it will be the maximum, but generally it will be the minimum and, subject to it, it is for the court to say whether there has been compliance with the particular Section of the principal Act involved or not. I hope I have satisfied the hon. Member that that is right.

§ Mr. Boyd-Carpenter
Is it the view of the Attorney-General that Clause 8 amounts to a substantial change in the law under the Act of 1937, or is it purely intended to continue in effect what had been believed to be the effect of that Act?

§ The Attorney-General
My view is that, with the possible exception of Section 7, it is intended to continue the intention of the principal Act. In Section 7 of the principal Act there is a departure in language which may or may not have been accidental. In the other Sections the Minister may prescribe a standard, but in Section 7 (2) the words are: may make regulations determining what is sufficient and suitable provision. and it may well be said of that Sub-section that if there were compliance with the regulation there was compliance with 741 the Section as a whole because the Subsection says that the regulation shall determine what is sufficient and suitable provision.
In all the other Sections the power is to lay down a standard and it certainly was intended that it should not be an absolute standard, but a minimum standard. The occupier complies with that and, subject to that, has to comply with the general provisions of the statute. The effect of Clause 8 would be to provide, in relation to both Section 7 and the other Sections of the principal Act, that beyond doubt the regulations at which one has to look may prescribe a minimum or maximum or, quite exceptionally, an absolute standard.

§ Mr. McCorquodale (Epsom)
As my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) said, we put down the Amendment in an interrogatory way, because this matter had caused some difficulty in the minds of laymen like myself. As I read it the Minister might make standards so that conformity to the prescribed standard is obligatory and in compliance with the Act, or obligatory but not sufficiently in compliance with the Act. Some of my hon. Friends thought this seemed rather an odd state of affairs. In the case suggested by the right hon. and learned Gentleman, the Minister can say what ought to be done and that that would conform with the Act, or it would not conform. The position looks confused. I suspected there was an ulterior legal reason for putting it in a rather startling form what appears to be rather unfair to the occupier.
Would I be right in assuming that the Minister can issue two sorts of regulations, one which defines the obligation of the occupier with regard to the principal Act and the other by which he can issue a series of standards which are in the nature of guidance more than anything else? Would I be right in assuming that one is legal and the other is merely guidance? If that is so would it not be possible, when these regulations are issued, to make that quite clear and not to use the same word "standards" for the two different things. I think that is where confusion arises—the power to issue prescribed standards, one legal and the other not legal, one obligatory and the other merely guidance. The average 742 factory occupier like myself is rather frightened of the law and gets muddled. This Amendment has not been moved in any hostile spirit. Its purpose is to try to get the question cleared up.

§ The Attorney-General
In framing the regulations we shall certainly do our best to make that point clear. The right hon. Gentleman's point was a valid one and we shall seek to make it quite clear in the regulations whether the standard laid down is to be absolute and legally binding in itself, and if corn-plied with it to be a sufficient compliance with the requirements of the Act, or whether it is to be a minimum standard We can do that perhaps by qualifying "standard" by stating whether it is a minimum, maximum or obligatory standard. Whatever standard it is, it will be a legal standard, but if it is a minimum standard it means that those concerned must not go below it but may need to go above it. We shall make clear in our regulations whether the standard laid down by a regulation is a minimum or maximum standard or an absolute standard, compliance with which will satisfy all legal requirements. This Clause makes it clear that we have power to do that. Having got that power, we shall exercise it to make it clear to occupiers what we are really doing.

§ Mr. Solley (Thurrock)
I oppose the Amendment but for reasons which are not quite the same as those that were advanced by my right hon. and learned Friend. As you know, Major Milner, I had hoped to be able to move two new Clauses which stand on the Order Paper in my name, the first of which is to a substantial extent dependent upon the new terms of Clause 8 and the Amendments which we are now discussing. That is the one headed (Franklin v. The Gramophone Co.). I understand that you do not propose to call either of those two new Clauses.

§ The Chairman
The hon. Member is under a misapprehension. I propose to call the second new Clause which stands in his name—(Nicholas v. Austin). It seems to me that the first new Clause standing in the hon. Member's name, to which he has referred, might properly be dealt with on the Amendments which we are now discussing as it is connected with the proposal made in the third of those Amendments.

§ Mr. Solley
I am obliged to you, Major Milner, for clearing up that point. I can deal with the purpose of my first new Clause while dealing with the Amendments which are now being discussed. As I understand the argument of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), he is seeking to require the prescribing of a minimum standard which shall suffice for the fulfilment of the higher and more general standard which is enacted in the provisions of the Factories Act. The evil of that was indicated very recently in the Court of Appeal in the case of Franklin v. The Gramophone Company, Limited. Unfortunately I cannot quote to the Committee from the more traditional of the law reports, but it is reported in the All England Law Reports, 1948, Volume I, page 353. If I may shortly consider the facts and the law of that case to illustrate my argument in relation to this Amendment, I think that the Committee will be better seized of the difficulties involved in considering Clause 8.
In the Franklin case the Section of the Factories Act involved was not one of those with which we are directly concerned under Clause 8, that is, it was not one of the Sections set out in the Second Schedule. It was Section 47, which provides that where dust is given off in certain processes carried on in factories, and where such processes would be likely to be injurious to the workers concerned, steps should be taken to prevent those persons from suffering the consequences of inhalation of dust. Regulations were promulgated which dealt with the grinding of metals in factories where dust was given off. The case of Franklin decided that where an employer satisfied the provisions of those regulations, he was deemed, for practical purposes, to have satisfied the general provisions of Section 47 of the Act.
In the Franklin case the workman suffered from pneumoconiosis. It was established to the satisfaction of all the judges—the judge in the court of first instance, and the three learned Lord Justices in the Court of Appeal—that if it had not been for the regulations the workman would have established a breach of Section 47 of the Act, namely, that a process which had been carried on was carried on in a manner which was contrary to the intentions of Section 47, but that by virtue of the regulations, the Minister who had made those regulations had, wittingly 744 or unwittingly, watered down the provisions of Section 47. So this workman, who had sustained pneumoconiosis as a result of his employment, and as a result of a direct contravention of Section 47 on the part of the employer, was unable to obtain damages under that Section by virtue of the watering down of its provisions under the Grinding of Metals (Miscellaneous Industries) Regulations.
We are asked to do precisely that by the Amendment which is now before the Committee. This Amendment would in effect give statutory authority to the Minister to water down the provisions of the Measure by promulgation in a regulation of standards which are less arduous for the employers. I must oppose that because it does not do away with the mischief which Lord Justice Scott in the Franklin versus The Gramophone Company case described as an important and far-reaching issue. On the contrary, it would be bound to aggravate and continue what I respectfully submit to be the misuse of the powers under the Factories Act.

§ Mr. Paget (Northampton)
Surely Clause 8 does not touch upon safety, but is confined to the matters contained in Schedule 2, which relate to comfort not safety?

§ Mr. Solley
My right hon. and learned Friend the Member for Northampton (Mr. Paget) is absolutely right. But he might remember that I did say that the case of Franklin was decided in connection with a Section under the Factories Act which is not referred to in the Schedule at all. I was merely bringing the case to the attention of the Committee to illustrate the point that it is possible for the Minister to make regulations which water down the general effect of the provisions of the Factories Act.

§ Mr. Paget
On a point of Order. My hon. Friend referred to his proposed new Clause. I think, Major Milner, that you then indicated that you were not calling the first of the proposed new Clauses in the name of my hon. Friend, because it appeared to come within the Amendment to Clause 8. My hon. Friend's proposed new Clause does not come within Clause 8, because it deals with the safety regulations, whereas Clause 8 refers to matters in the Second Schedule which one may perhaps call "comfort regulations." It 745 seems to me that the first proposed new Clause in the name of my hon. Friend is a very important one on this matter, and since it does not come within Clause 8 perhaps you would reconsider calling it.

§ The Chairman
It is desirable that the Debate having been begun should be concluded. The hon. Member should be allowed to conclude his speech.

§ Mr. Solley
I am obliged to my hon. and learned Friend for his intervention. Were I not debarred by the Rules of Order I would add my voice to his in asking if, even at this late stage, it would be possible to have a discussion on what I would describe as the Franklin against the Gramophone Company doctrine, which does come within the provisions of the present Debate on Clause 8, but perhaps even to a larger extent lies outside it. I venture to submit, with great respect, that justice might possibly be done if we could have, even at this stage, a separate Debate on the proposed new Clause standing in my name. If I am out of Order—

§ The Deputy-Chairman (Mr. Hubert Beaumont)
Due to the change-over, I am not aware of what the hon. Member has been referring to.

§ Mr. Solley
I was dealing with a matter of some legal technicality. Perhaps I might be permitted to say that counsel sometimes thinks that a change of judge could assist his particular case, but I, of course, cannot do so here. May I respect fully point out that Major Milner informed the Committee that a proposed new Clause standing in my name will not be called? That Clause has as its object the discussion of the recent decision in the Franklin against the Gramophone Company case. We are now dealing with an Amendment relating to Clause 8. My submission is that while the point of the Franklin case is to some extent intermingled with the Amendment we are now considering, it is not wholly so and it may be perhaps of some convenience if we could have a separate discussion on this matter.

§ The Deputy-Chairman
I assume that the hon. Member has now finished his speech. We might carry on with this discussion and, when we come to the new Clauses, the matter can then be considered.

§ Mr. Solley
I am obliged. I shall not proceed with the main argument which I should have adduced in connection with 746 my proposed new Clause. We cannot in my submission accept this Amendment because it would be enforcing the Minister to proscribe a standard which would be lower than the general standard required under the Factories Act.

§ Mr. Boyd-Carpenter
I do not propose to follow the hon. Member for Thurrock (Mr. Solley) in his somewhat complicated pilgrimage along the perimeter of the Rules of Order. It does not seem to me, with great respect to him, that his very ingenious argument—quite clearly devised, if I may say so, for a subsequent stage of our discussions—really helps the point at issue between my right hon. Friend and the right hon. and learned Gentleman.
The matter is one of real difficulty. We have to weigh against each other two alternative difficulties; the difficulty of exposing a manufacturer—who thinks he has complied fully with the law by complying with the Minister's regulations—to prosecution under the Act, against the very real difficulty, to which the Attorney-General has referred, in taking away from the courts the assessment of what is or is not a breach of the Act. I appreciate those difficulties and I think they can, in practice, be met largely on the lines indicated by the Attorney-General in reply to my right hon. Friend the Member for Epsom (Mr. McCorquodale). That is to say that great care should be taken in defining the regulations so as to make it completely clear to those who read those regulations whether or not compliance with them will be taken to be compliance with the Act.
I throw out the suggestion that it might be helpful to have in the regulations, where compliance does not mean compliance with the Act, some specific statement to that effect, some note calling attention to the fact that full compliance with the regulations will not necessarily be a defence in the case of a prosecution under the Act. I think the evil can, in practice, be met very substantially in this way. I am glad that the Attorney-General does appreciate the possibility of dealing with the matter in this way, and in those circumstances I beg to ask leave to withdraw the Amendment.

§ Mr. Solley
Before we proceed to consider whether Clause 8 stand part, I wish to ask the Attorney-General for this information. Under Subsection (4) of this Clause provision is made: for exemptions from any requirements of the principal Act … either unconditionally or subject to conditions, by an inspector …" etc. What I would like to know is this. There are provisions of the Factories Act, for example, Section 14, which provides that: every dangerous part of any machinery … shall be securely fenced, about which there has been to some extent a difference in judicial opinion. So far as I understand it, it is now considered that even though a machine cannot possibly be safely fenced, that machine must not be used, if it cannot possibly be safely fenced, even though its non-user would make a particular manufacture impossible. Under Clause 8 (4), it might appear that the Minister would be able to make an exemption in any particular case which would, in effect, make it possible, for example, for an employer to use a machine which was not securely fenced and which would, therefore, be a user in contravention of Section 14 of the Act, merely because the employer says, it may be with complete justice, "It is impossible to devise a machine for this particular process which can be securely fenced." If we are asked to make so radical a change in the law as, for example, to enable employers to use dangerous machinery by virtue of this apparently innocuous Subsection (4), I think that we need an explanation from the Government. I, for one, could not possibly support it if my analysis of the meaning of the Subsection is a proper one.

§ The Attorney-General
This Subsection does not really involve any drastic alteration of the existing law. It is included in the Bill for the purpose of removing doubt. Under the existing law—I think it is under Section 60 of the principal Act—there already exists in the Minister power to modify or extend the general provisions of the principal Act in regard to matters affecting health or safety, the matters dealt with in Parts I and II of the principal Act. This Clause provides that these regulations which either modify or 748 extend the provisions of the principal Act may contain provisions enabling an additional exemption to be granted by the factory inspector from the application of those regulations but not from the application of the Act itself.

§ Mr. Solley
Would my right hon. and learned Friend be good enough to answer my question specifically? I do not suggest that our Government would be prepared to do it, but does Subsection (4) in law enable a Minister to authorise the use of a particular machine which is unfenced and the use of which would, but for this authorisation, be a contravention of the Factories Act? I am asking for a legal opinion.

§ The Attorney-General
That is how I read the Subsection. Under Section 60 of the Act it might be possible for the Minister to make a regulation exempting particular classes of machinery and particular classes of factories from the provisions of certain of the safety sections. I do not know, without looking at the regulations, but that might have the effect which my hon. Friend apprehends. All that can be done under this Clause is to enable the factory inspector to exempt a particular factory owner from the operation of those regulations. If, therefore, the regulations have been ones which relieve the factory occupier from his obligations under the principal Act, I assume that an exemption from the regulations would reimpose upon him the obligation which had previously existed.