Clause 2.—(LIMITATIONS ON POWER TO PROVIDE ALLOWANCES.) (Hansard, 5 March 1951)

§ Mr. Peake
I beg to move, in page 3, line 12, to leave out from "disease" to end of line 13.
Subsection (3) envisages that the decision whether a man is totally incapacitated or not arrived at for purposes of workmen's compensation shall also govern and decide the question whether he is totally incapacitated for the purpose of allowances under the Bill. But we have these somewhat mysterious words, that he may be considered totally incapacitated for the purpose of this Bill—although not so considered apparently for the purpose of workmen's compensation— in such other circumstances as may be provided by a scheme. I should like to know what circumstances the Minister has in mind for which these words are provided.

§ Dr. Summerskill
This subsection refers to those cases where there is a partial incapacity and, because of certain circumstances surrounding the work of the men, the cases are treated as a total incapacity. It will be recalled that men injured before 1924 were subject to the provisions of the relevant Workmen's Compensation Act, but in 1931 the circumstances which covered their position 191 were widened. For instance, a man who had been severely injured and was unable to get work in his own industry would apply to the employment exchange and would be told he could not have an unskilled job because there was unemployment in that industry. In other words, there was redundancy. The Act provided that a man in those circumstances could be treated as totally incapacitated. That is the background.
I am asked why I include these words: for the reason that we are anxious that men injured before 1924 should be treated as men who were injured after 1924 and were covered by the 1931 Act. The right hon. Gentleman may well say. "Why not put in something about the 1931 Act and make clear to the reader of the Bill what we are doing?" I agree that that would be a valid point. We have used this form of words because we recognise that in the case of men injured before 1924, most of them old men, there are special circumstances and we are anxious to adapt the 1931 Act to apply to the special needs of the 1924 cases.

§ Mr. Peake
I beg to move, in page 3, line 14, to leave out "that subsection" and to insert "subsection (2) hereof."
When I read the first words of subsection (4)— For the purpose of paragraph (b) of that subsection it took me a long time to find which subsection was referred to. I found a paragraph (b) in subsection (5) of Clause 1 and one in subsection (2) of Clause 2. I think this could be made a little clearer by inserting the words I propose.

§ Dr. Summerskill
I have some sympathy with the right hon. Gentleman's point of view. I confess that I do not like the word "hereof," but I am prepared to yield to the right hon. Gentleman.

§ Mr. Peake
I beg to move, in page 3, line 20, to leave out "in general."
As the right hon. Lady is being extremely accommodating this evening, may I also ask for a bare explanation of what the words "in general" mean in paragraph (a) of subsection (4)?

§ Dr. Summerskill
I hope the right hon. Gentleman observes that I am being accommodating only in small matters. "In general" should be read in conjunction with the second part of the proviso. It will be seen that the proviso says: a scheme may also include provision for further defining the amount referred to in paragraph (a) of this subsection and the principles on which it is to be ascertained. It simply means that in framing a scheme we are anxious to ensure that in calculating a man's wages trivial changes from week to week shall not be considered, but that we shall consider wages over a period of weeks.

§ Mr. Scholefield Allen
A man's main average weekly pre-accident weekly earnings, or his post-accident weekly earnings are taken over a period, on an average, in workmen's compensation cases. These words are unique in this kind of legislation.

§ Dr. Summerskill
I would remind my hon. and learned Friend that the phrase used in the Workmen's Compensation Act are: the average weekly amount which the workman is earning or is able to earn in some suitable employment or business after the accident.

§ Mr. Allen
I am referring to the words" in general."

§ Dr. Summerskill
I am sure that my hon. and learned Friend would not quibble over words. When I say "in general" I mean over a period of weeks, and on an average.

§ Mr. Molson
I am sorry that the Minister is talking about quibbling over words. After all, our task here is to try to express in words that can be accurately interpreted and understood what is the intention of the Minister. These words are unique in this branch of legislation, and it is possible that they will lead to some discussion and argument. I would ask the right hon. Lady whether, between now and the Report stage, she could find words which will convey clearly to a judge who is called on to interpret the meaning which she has explained to the Committee. After all, she will not forget that the learned judge is not entitled to look at the debates of the House of Commons to understand words in an Act of Parliament. I think it would be advantageous to have an Amendment on 193 the Report stage to make more clear the point she is making.

§ Dr. Summerskill
I do not think that that is necessary. If the hon. Gentleman looks at the proviso he will see there will be no question of deceiving anybody. It says: a scheme may also include provision for further defining the amount referred to in paragraph (a)… We have no intention of departing from the provisions of the Workmen's Compensation Acts, and we intend to define clearly in the scheme what we mean by "in general".

§ Mr. Molson
But the right hon. Lady says that the words "in general" were intended to refer to the proviso, which is 10 lines further down the page. No one would think the words are to be explained by the proviso.

§ Dr. Summerskill
I cannot agree. It says "in paragraph (a)."It refers back to paragraph (a.) There can be no question of people not understanding.

§ Mr. Houghton
I think we all have a general idea what the words" in general" mean and can derive some assurance from the fact that the only person who will have to interpret the words will be the Minister of National Insurance.

§ Mr. Peake
In view of the explanation, not so satisfactory as some which the Minister has given, I beg to ask leave to withdraw the Amendment.

§ Mr. Iain MacLeod
I beg to move, in page 3, to leave out line 23.
I hope that this is one of the points on which the right hon. Lady will be accommodating. It is one which I mentioned on Second Reading. The series of Acts since 1897 concern themselves, among other things, with seeing that a man is not penalised in his future workmen's compensation because at the time of the accident he happened to be under 21. I propose to leave out line 23 because that process has arrived, as I understand it, at one very odd result.
If a man who is under 21—let us say, 19 years—was injured, at subsequent reviews due regard will be taken of his reasonable prospects of advancement until presumably, and at no very long time, he reaches the top level or grade of his em- 194 ployment, which may not be reached, as appears to be assumed by these Acts, at 21, but may be reached, for the purpose of my argument, let us say, at 25. The odd result is that a man of 22 has no such advantage. A man of 22 cannot have taken into account the reasonable prospects of advancement which that man would have been allowed to, and, therefore, the man of 22, unlike the man of 19, cannot reach the top grade in his employment unless that grade be reached, as in many cases it is not, at the age of 21.
The only brief comment that I would like to make is this. The numbers involved must, of course, be very tiny indeed. The average age of these people is probably now nearly 70. The only point that I can see against the proposal that I have put forward is the suggestion, which would be quite true, that by improving the position of the people who were injured at 20 to 25 I am, in that respect, suggesting that the pre-1924 cases should be made slightly better off than the post-1924 cases. Frankly, I think it is about time they were, and I am not impressed by the argument that in that small sphere these people will be slightly better off than the post-1924 people. I hope for the reasons I have given that the right hon. Lady will look sympathetically at the point.

§ Mr. Oliver (Ilkeston)
What trade or calling has the hon. Gentleman in mind when he says that a person would not reach the top grade before attaining the age of 25?

§ Mr. MacLeod
I have not got a list, but there are many callings. It is not a question of 25; I merely mentioned that age to give point to my argument. In all grades of employment in which a man does not reach the top automatically by his 21st birthday, he can be penalised.

§ Mr. Oliver
Give one example.

§ Mr. MacLeod
I could give many instances in the farming and mining industries.

§ Mr. Powell
I hope that the right hon. Lady will accede to the request which my hon. Friend has made. At first sight it may appear as though the omission of line 23 will open the door rather wide, but it will not. The whole of this subsection is subordinate to paragraph (b) of subsection (2), which places a ceiling of 40s. upon the amount of allowance plus workmen's 195 compensation combined. We are, therefore, only dealing with cases where the prospects of advancement were within the ceiling of 40s. It is probable that those prospects would be achieved below rather than above the age of 21. Nevertheless, there may be a few cases—there probably are—where the prospects of reaching the maximum of 40s. are likely to fall after the age of 21. It seems only reasonable that those few marginal cases should be brought within the ambit of subsection (2) by the deletion of this line.

§ Dr. Summerskill
I shall not dissent from the contention of the hon. Gentleman. There may be a few people over the age of 21 who should be treated in this respect as we treat the juveniles under the age of 21. But they cannot dismiss so easily the argument which they have already given me—and it is a strong argument—against accepting this Amendment. It has been recognised in Workmen's Compensation Acts, many of them passed at the beginning of this century, that the age of 21 years is the age which divides the field of juvenile employment from the field of adult employment. It would be quite wrong, in passing this Bill, to introduce a provision which would put a man injured before 1924 into a more favourable position than a man injured after that date.
Here, we are attempting to remove a great injustice, but hon. Members are now pressing me to establish a new injustice. This would create a new anomaly. It would establish a new category of workers who would ask me to introduce new legislation to amend the old Workmen's Compensation Acts. I ask hon. Members to recognise that the number of persons they are talking about is very few. By accepting this Amendment, a grievance would be caused to a large number of workers.

§ Mr. John McKay (Wallsend)
It may be said that, in general, when men reach the age of 21 they come into the ordinary industrial scale. But I know, from my experience in the mining industry, that there is a class of men who have done what might be termed the hardest work in the mines—the hand-pushers. There were no ponies; the men had to do the work themselves. There was such a shortage of these men, and there was such difficulty in getting a sufficient number of them, that those doing this work carried on in this parti- 196 cular grade of work until they were 27 or 30 years of age. There is just a chance that there is a former hand-pusher who was injured before he was 21 years old. I understand that there was a limit of time in which these men must ask for a review of their wages, otherwise they lost the opportunity to do so.
If this Clause is widened, there is a possibility of that particular class of men having the opportunity to show, by a reasonable argument, that they could have been in a higher grade in the mines as time passed. Therefore, they would have qualified for a higher wage and would, of necessity, have had a bigger margin between the pre-accident wage and the post-war review than we have under this Bill. So, while it may seem that this Amendment would apply only to a small minority, the fact is that the whole of this Bill applies to a small minority. We desire to make this Bill apply in such an elastic manner as to cover the whole of these people. Therefore, I think there would be no harm in widening this Clause.

§ Mr. Robert Carr (Mitcham)
There seems to be no doubt that prospects of advancement still exist after a person has reached the age of 21. An hon. Member opposite asked my hon. Friend who moved this Amendment to give examples. We have just heard some. I can testify that in the skilled trades associated with the foundry advancement still exists after the age of 21. I think it is a case of experience added to skill and, therefore, deserving, and getting, higher reward as age increases. If this prospect of advancement continues it seems to me an injustice not to take it into account.
The right hon. Lady argued that we must not create another injustice. This seems to be putting the argument into the world of topsy-turvydom. It seems to be a fact that a man suffering post-1924 injuries must also be experiencing an injustice if this prospect of further advancement is not taken into account. It seems a bad argument because one injustice exists to refuse to remove another one. I would like to press the right hon. Lady to try to remove this injustice in this case and set a good example so that in future we follow a good precedent and not a bad one.

§ Mr. Scholefield Allen
The Workmen's Compensation Act based compensation 197 upon the earning capacity of the man in the occupation in which he was employed. That was the standard. If the kind of principle in the Amendment were to come into the Act, there would be endless abuse, because a man in industry might come along and say, "I would have been a foreman, or a manager, or a mnaging director." The whole principle was based upon earning capacity on the date of the accident in the particular grade in which the man was working. This Amendment would open an endless stream of applications.

§ Mr. Iain MacLeod
I fully realise the point made by the hon. and learned Member, but he is really taking my suggestion too far. My words leave in the words, "in his grade of employment." The only suggestion my words make is that a man, after 21 years and up to the top of that grade, should have the same rights as before. It seems a pity if we cannot remove what is admitted to be an injustice because it is said that it will create resentment. I do not believe that there would be resentment against this. I know what the main argument is against the Amendment I put forward; indeed, I outlined it myself when I moved it. That is the main and most serious objection to it, I agree.
However, in view of the feeling expressed, not only from one side of the Committee, I would like to have an undertaking from the right hon. Lady that she will look into this matter again. I am prepared to withdraw the Amendment, partly because it is late and partly because I realise the argument against it. It is true that there are some people to whom an injustice can be done but I still hope that it will be put right. I beg to ask leave to withdraw the Amendment.

§ Mr. Peake
I beg to move, in page 3, line 29, to leave out "and in other special cases."
I wish to obtain an explanation from the Minister of what kind of other special case is thought likely to arise besides those envisaged in the subsection, such as the case where a particular kind of employment has ceased to exist since 1924.

§ Dr. Summerskill
This is another case where I ask the right hon. Gentleman to allow us certain freedom of action in the field of very difficult cases. We have, in the proviso, made it clear that: 198 a scheme may make other provision for ascertaining the amount representing that loss where that class of employment has ceased to exist"— and we have said: in other special cases because, although employment may have ceased to exist, it may be that the wage structure of industry has radically changed.
Let me illustrate this by reminding the right hon. Gentleman that although dock labourers' work is the same as it was 50 years ago the wage structure of their industry has altered. Therefore, it is very difficult to compare the pre-accident wage with the post-accident wage. This will give us a certain freedom to recalculate these wages under these circumstances.

§ Mr. Peake
I am much obliged to the right hon. Lady, and I beg to ask leave to withdraw the Amendment.