§ 9.58 p.m.
The Joint Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mr. J. B, Godber)
I beg to move,That the Draft Agriculture (Power Take-off) Regulations, 1957, a copy of which was laid before this House on 4th July, be approved.As both these Regulations in the name of my right hon. Friend arise under the same Act, I wonder if it would be for the convenience of the House to discuss them both together.
§ Mr. Godber
The two sets of Regulations which my right hon. Friend has laid before Parliament—the Draft Agriculture (Power Take-off) Regulations and the Draft Agriculture (Ladders) Regulations—are the first to be debated in the House, though not the first to be laid under the Agriculture (Safety, Health and Welfare Provisions) Act, which was passed last year; we have already had the First-Aid Regulations submitted.
We accepted in this Act the obligation that certain of the Regulations had to be subject to affirmative Resolution, and I would confine myself to explaining what the Regulations we are now discussing are designed to do. I will deal with the Power Take-off Regulations first.
The power take-off, if left unguarded, can obviously cause serious injury to anyone who comes in contact with it while it is revolving. It is not practical to require it to be completely shielded, because the shaft has to be attached and detached and the take-off must therefore be accessible from behind and from below.
It is, however, a very effective protection against accidents to have a strong shield fitted to the back of the tractor and running over the top and down the sides of the power take-off. Most tractors with power take-offs already have a shield of this kind added to them. We believe that there are 80,000 to 90,000 tractors with unguarded take-offs now in use, although some of these will be on holdings where no workers are employed; the Regulations, therefore, do not apply to them. I would say, however, that the advice we 1485 give on safety will not distinguish between workers and others and we hope that in due course all the unguarded power takeoffs will disappear.
The power take-off shaft—I apologise; this is highly technical—is even more dangerous than the power take-off itself. It is very easy for people to come in contact with the shaft inadvertently while it is revolving or for a driver of a tractor—he might be leaning backwards, for instance—to get some part of his clothes entangled in it; and once caught up in the shaft, the victim is powerless to help himself.
I need not say more in justification of the Regulations than that on an average four or five people are killed in this way every year. The only solution is to fit a guard along the shaft, although if part of the shaft is already safely protected by other parts of the machine, so that people cannot come in contact with it, it is necessary only to cover the exposed part.
Regulation 4 requires that to be done. The guard will normally have to extend all round the shaft. However, a number of shafts have already been fitted with guards in the form of an inverted "U", and we propose to allow this type of guard on machines which are already in use when the Regulations come into force, provided—and this is important—that the shaft is not more than 2 feet from the ground and the guard extends at least 2 inches below the bottom of it on either side. That is set out in the Regulations.
I believe that there are just under a quarter of a million machines with unguarded power take-off shafts. In view of the numbers involved, we have considered carefully how long employers should be allowed to bring their existing equipment up to the requirements and how long manufacturers can be expected to take to adapt their products. At first, we proposed to make it an offence under the Regulations to sell or to hire a machine that did not comply, but on further consideration we concluded that if we made this a general requirement on all machines sold or hired for use, we should be going outside the powers in the Act, which are limited to the safety of employed workers. That is the relevant phrase. If, on the other hand, we endeavoured by regulation to require manufacturers and dealers or hirers to know whether any 1486 given machine would be used in circumstances where the Regulations applied, we should be imposing an impracticable and an unenforceable requirement on them.
During our consultations, the manufacturers assured us that they will do everything in their power to ensure complete and satisfactory guarding of machines. This assurance is not affected by the question of what period we allow for compliance.
We have laid down in Regulation 1 that all power take-offs to which the Regulations apply must have shields by 1st August, 1958, except that on existing tractors which were not designed to have a shield fitted, the job will be more difficult and we propose to allow a further twelve months. There is, therefore, just over twelve months in the first instance and two years in the second instance.
The shaft will sometimes be more difficult to deal with than the power take-off, and for shaft guards on new machines we propose to allow 18 months, but for machines already existing on the operative date—1st February, 1959—the period will be extended by a further six months to 1st August; so that for existing machines the period will be just over two years, making it the same for both types.
The representatives of the farmers and manufacturers put it to us that this last class should have been allowed three or, as was suggested in one case, even four years, but we felt that two years was not an unreasonable requirement. Naturally, any period would not be long enough if large numbers of employers left it to the last moment to get the job done. We must face it—there is a tendency that way. However, we for our part will do all we can to remind the farmers of their obligations and to persuade them to get on with the job without waiting until they are compelled to do so by law.
We have so drawn the Regulations, we hope, as to lay responsibility for compliance in fair proportions on the employers and the workers. Farmers cannot be expected to oversee all the operations of their workers as continuously and closely as, perhaps, factory employers oversee their workers, and we thought it right that it should be as much an offence for the worker to use a noncomplying machine as for an employer 1487 to cause or permit him to do so. There has to be co-operation from both sides.
Ladders, though they may sound a less formidable matter than power take-offs, are by no means unimportant as a cause of accidents in agriculture. Indeed, in the five years from 1951 until 1955 on the average three people were killed each year by falling from ladders, and, of course, there were many more who were injured. The remedy is clearly less easy than that applicable to power take-offs, because there is no simple means of protecting a worker from the dangers, which are many and various, and which may arise either from the way the ladder is used or the condition it is in.
The Regulations cover all portable rigid ladders, of whatever material, including step and trestle ladders, if they are used by agricultural workers in the course of their employment. They are directed to ensuring that ladders are kept in a safe condition and used in sensible ways, and all they require employers to do in the three months before they come into operation—that is to say, three months after the Regulations are made—is to see that their ladders comply with the requirements of Regulation 3, as most well-constructed and well-maintained ladders, of course, already do. As with power take-offs, we have thought it fair to lay a share of responsibility on the worker as well as on the employer. The case is, perhaps, even stronger here, because it will be harder for an employer to keep a continuous eye on his ladders.
Regulation 4, therefore, forbids a worker to use, as well as his employer to cause or permit him to use, a ladder which is unsafe in certain specified ways or is not securely erected, and Regulation 5 requires workers to report to their employers if they discover certain obvious defects in ladders with which they are asked to work.
I have tried quickly to deal with the main points in these Regulations. I think that, perhaps, everyone in the House will support the general intentions of these Regulations. I shall be happy to answer afterwards any questions which hon. Members may raise, if the House will permit me to do so.
§ 10.8 p.m.
§ Mr. Frederick Willey (Sunderland, North)
We are obliged to the Joint Parliamentary Secretary for the concise and clear account he has given of the purpose and effect of these Regulations. I assure him that we join him in welcoming the general purpose of the Regulations. As I have one or two serious criticisms to make of the Regulations I think I should say first, by way of preface, that we appreciate very much the step taken by the Minister in giving effect to the safety precautions for agriculture under the Act.
He has given a lead. He was very cooperative when we discussed the legislation in Committee. In Committee we were anxious to make the requirements of the present Regulations mandatory. We received assurances from the right hon. Gentleman, and by these Regulations tonight he is carrying out the undertakings he gave us. For that we are very greatly obliged.
We are, however, concerned that he has taken so long. I shall, perhaps, revert to this. I realise that there have been exhaustive consultations about this matter, but I would call the attention of the House to the length of time it has taken, partly because of the very necessary consultations, to bring these Regulations before the House. It is a very serious reflection upon the Government, who have failed to implement other recommendations in the Gowers Report. Here we have a Minister who has done his best to implement the Gowers Report but, notwithstanding that, he has taken a very long time to take the first step, and this is a very grave reflection on the failure of the Government to implement the other recommendations of the Report.
As I say, we welcome the general intention of the right hon. Gentleman. We appreciate the purpose of the present Regulations, but we regret very much that they are open to very serious objection. I think that this is the first time that safety regulations have been laid before the House which are, in fact, seriously objected to both by the employers and by the workers. We have received very strong representations both from the National Farmers' Union and the National Union of Agricultural 1489 Workers making very serious criticisms of the Regulations in their present form.
I would say in passing that I argued during the Committee stage that it would have been better to have created an advisory council to advise the Minister upon these Regulations. I am thoroughly convinced now that that would have been the better step to take. We are discussing this in no doctrinaire spirit; we were not dogmatic on either side. There is something to be said on either side, whether the negotiations should be formalised or unofficial, but I have always felt that in matters like this we do not get satisfactory negotiations when we look to civil servants who have this flair for ad hoc negotiations with various people separately.
It is far better when there is a conflict of interest to get the parties around a table, and I am sure that in this case, if the National Farmers' Union and the National Union of Agricultural Workers had been round a table we should have had Regulations on which we could have agreed. I have a profound respect for both sides of industry, and I think that they would have considered in this way the representations made by other people affected. Unfortunately, that has not happened. I think that is one of the reasons why we have, unfortunately, Regulations which are approved by us all and yet are subject to very serious criticism.
I want to make one or two criticisms which occur to me personally and then deal with the points raised by the National Farmers' Union and the National Union of Agricultural Workers. I have mentioned the criticism that the Government have not kept to their own timetable. I have given, I think, our reason for that. I hope that, in view of the fact that the Government were not able to keep up to their own timetable, they will consider a more effective form of consultation.
With regard to some of the provisions, one which the Parliamentary Secretary has mentioned in some detail is the enclosure of the power take-off. I should have thought that it would have been possible to have provided for the complete enclosure of the power take-off by a guard which completely enclosed it. I cannot be dogmatic about this, but I assume, very naturally, that there have 1490 been consultations with the manufacturers. I have, however, seen some of the illustrations of the guards provided in other countries where such a provision is required, and it seems, at any rate from the illustrations I have seen, that in those cases there is complete enclosure.
The Parliamentary Secretary may say that it is unlikely that a worker will be injured beneath a power take-off, but unless there is any overwhelmingly practical and technical ground for not enclosing it, it should be done From a cursory examination—I cannot claim to be more well informed than that—it appears that this has been done in other countries.
The Parliamentary Secretary will know that the unions have taken up the point about the strength of the shield. We know that that is because the shields may have to bear the weight of a man standing on them. I should have thought it would have been better to make the weight-carrying capacity more than 250 1b., but I should like the Parliamentary Secretary to satisfy us that he has thoroughly considered this matter and is satisfied that that capacity is more than adequate—as it should be as this is a safety device.
In Committee the Parliamentary Secretary's predecessor gave a satisfactory assurance about the use which would be made of exemption certificates. We appreciate that there will be an annual report and that we will be informed about what use has been made of the exemptions, but I hope that the hon. Gentleman can assure us that these certificates will be used only for such as experimental purposes.
§ Mr. Willey
I am very much obliged. We would rather have that assurance now than wait until we have the report.
The first of the two major objections which have been made is that put by the National Farmers' Union, that the entire responsibility is placed upon the farmer. In view of what the Parliamentary Secretary has said, we should say that the entire responsibility is placed on the farmer and on the farm worker. The N.F.U. feels that the primary responsibility should be placed on the manufacturer and distributor. My hon. Friend the Member for Leek (Mr. Harold Davies) and the 1491 hon. Member for Leominster (Mr. Baldwin) raised this matter in Committee and the then Parliamentary Secretary said that he did not feel that the primary responsibility should be placed on the manufacturer and the distributor, that the manufacturer and distributor would depend upon selling machines which would satisfy the customer, and that they would not have sales if the machines were not safe. That is an argument which I can accept.
§ Mr. Charles Doughty (Surrey, East)
The Minister has no power under the Act to do so and, under these Regulations, such an Order would be completely ultra vires. The Minister of Agriculture has no power to make such an Order.
§ Mr. Willey
I will come to that point in a moment, because the Parliamentary Secretary gave the two grounds, that it was impracticable and ultra vires. I accept what the Parliamentary Secretary's predecessor said in Standing Committee, that in all such safety legislation the primary and essential responsibility must lie on the occupier or employer. That principle has been successfully adopted in the Factories Acts.
A further point, which the hon. and learned Member for Surrey, East (Mr. Doughty) will appreciate, is that in any case we could not accept the N.F.U.'s proposal, because if we placed the primary responsibility on the manufacturer, we should have difficulty with court decisions, because although the manufacturer could be prosecuted and fined, an injured worker would have no cause for damages. He would not be able to sue the manufacturer and it would not be sufficient comfort to him that the manufacturer had been fined.
§ Mr. J. E. B. Hill (Norfolk, South)
Even if the responsibility were on the manufacturer to incorporate a safety device in the manufacture, there would be a concurrent responsibility on the employer to see that the machine used on the farm had the safety device. A farm worker would be covered in that way.
§ Mr. Willey
The hon. Member has anticipated the point I was about to make. While I could not fully accept the N.F.U.'s suggestion, I feel that the manufacturer ought to share a concurrent 1492 liability. I do not want to create a wrong impression and I would say at once that I believe—unless the Parliamentary Secretary corrects me—that that would be accepted by the manufacturers. I am sure that the Institution of British Agricultural Engineers would not oppose the acceptance of such liability.
We have to consider, then, why the Government have not done this. We must have a rather fuller explanation than we have had so far from the Parliamentary Secretary because, in the original draft Regulations, there was provision for placing liability upon the manufacturer or distributor. The original draft Regulations made it an offence to sell or let for hire for use in agriculture. We want to know, first, why the Department has changed its mind.
I now turn to the two objections made against the imposition of this liability, which was originally imposed upon the manufacturer and distributor. I do not think that it is impracticable, although the Parliamentary Secretary says that it is. I take the view that the Ministry originally took, that it is not impracticable. No point about exports is involved. I do not think that it would harm the export of our agricultural machinery if it were overtly and patently safe. I assume that some of our manufacturers must already be exporting machinery with safety devices; they certainly would have to do so to get into some of the European markets, because it is a requirement in some Continental countries that there shall be these safety devices.
I can see the force of the argument, but I do not think that it is a sufficient argument, to say, in the case of tractors, for instance, that the manufacturer does not know the use to which the tractor is being put; that it may be a multi-purpose tractor. I think that we can have designated tractors for agricultural use and have safety devices provided in those cases. I do not think that there is any practical difficulty in providing for this liability.
Is there, therefore, as the hon. and learned Member suggests, a case of this being ultra vires? I would say at once that the answer is "No." I think that the power is there, if we look at Section 1. I concede that there may be difficulties in its enforcement.
§ Mr. Doughty
I made it quite clear that the whole Act deals with relations between employer and employee—farmer and agricultural worker—in respect of safety, health and welfare. It is not possible to make regulations going beyond that in order to deal with third parties, even though they may have indirect interests such as the selling of their goods. If we make safety regulations with regard to electricity we cannot make Regulations to control the supply of electricity any more than we can with regard to the supply of tractors.
§ Mr. Willey
I do not want to pursue this at the moment because it is very difficult to conduct a discussion like this in the House. I would remind the hon. Member that the Act expressly provides for Regulationsprohibiting the sale or letting on hire of any machinery, plant, equipment or appliance which does not comply with requirements of the regulations.I would say that, on the face of it, it would be within the provisions of the Act, but I concede that there are some difficulties in the matter of enforcement.
Without getting too involved in the legal niceties of this matter, it appears to me that the Ministry was right in the first instance, when it issued the draft Regulations, in believing that it had power to make this a concurrent liability—although in regard to inspection under Section 10 there may have been some difficulty.
Having considered the representations made by the National Farmers' Union, while I think they go too far, I also think they have a case regarding the imposition of liability upon the manufacturer or distributor. I think it a pity that this has not been done with regard to new machinery and to the provision of safety devices on old machinery. I say this particularly regarding the provision of safety devices to be put upon present machinery, because I do not like to envisage farmers resorting to home-made devices. First of all, they would be at grave risk, because should there be an accident the courts almost invariably would find against them. A farmer should be put in the position of having some assurance that there are guards available which would satisfy the courts. For those reasons, I think it would have been better had the liability also been 1494 placed on the manufacturer and distributor as originally intended by the right hon. Gentleman.
The second objection which I have considered is from the point of view of the workers. These Regulations, so far as I know, are absolutely novel. I cannot find any precedent under the Factories Acts. I agree that the second Regulation is rather different, but the power take-off Regulations, place the same responsibility upon the employer as upon the worker. So far as I know, although there may be exceptions, that is not done under the Factories Acts or other safety regulations. I can see that this puts the worker in a difficult position. Here we have machinery with a guard. It is not the case of a worker misusing the guard or displacing it. It is saying that the worker and employer are equally responsible if the guard is not effective and does not meet the standards set by this Regulation.
Generally speaking, and without coming to a legal point which I will touch on in a moment, I think this is undesirable. It is undesirable to put a worker in the position that he is contemporaneously committing an offence on the same grounds as the employer. He is less likely to complain. But there is a further difficulty which, I think, creates a substantial objection to the Regulations as at present drafted. What is the position of the worker if there is a claim at common law? He is in breach of statutory duty automatically because this is a current liability in identical circumstances upon the employer and worker.
The worker, therefore, will find himself in great difficulty with regard to contributory negligence. I should have thought this most prejudicial. I do not know whether it has been considered by the Department, but, on the face of it, it would appear most prejudicial to the worker. This is not the position, at any rate generally speaking, under other safety regulations so far as I know. I could understand—it would be quite proper and I make no complaint about it—the imposition of the liability if the worker interferes with the guard or misuses it. But here there is no suggestion of that. The Regulations provide that a worker employed in agriculture shall not use machinery which is not effectively guarded under these Regulations. I am 1495 sure it would not be the desire of any party to these consultations that it should be prejudicial to the worker. I say to the Parliamentary Secretary that, apart from the several points I have raised, there are two cardinal objections to these Regulations as it is at present drafted.
I have no intention of dividing the House on these Regulations. They are desirable; we accept their purpose and want them implemented as soon as possible. We do not want to create the impression that we are divided about this matter. I earnestly entreat the Minister to consider these two representations and to assure us that he will meet both the National Farmers' Union and the trade unions and try to resolve these difficulties, and that if there is doubt—not whether it is his view against their view—he will introduce amending Regulations.
With regard to the ladders, the point I made about the liability of the worker is not quite so difficult as in the first Regulation. In the second, we get three categories of responsibility: the responsibility of the employer only, the responsibility of the employer and worker, and the responsibility of the employer to report, which I accept. I accept many of the obligations upon the worker in this case; they are specific and understandable. The common obligation of the employer is differentiated from the employer's cardinal obligation and liability. If we look at the matter in the light of the possible effect upon a claim made by the worker, the matter to be open to review.
I have not raised these points to make it difficult to implement these Regulations; far from it. We want them. We would like an assurance that the two points I have raised will be carefully examined, that the Minister will try to assure both parties that if it is possible to extend the scope of the liability he will do so, and that if it is possible to protect absolutely the worker, in the light of what I have said, he will do so.
I hope also that the Minister will recognise that the industry has neglected safety measures very much in the past, because of the way in which it is situated.I am not blaming it, but that is a fact. This is not a difficulty peculiar to this country; it has been the experience in 1496 other countries. I hope that, apart from enforcing these Regulations, the Minister will take every opportunity of propaganda and education to inculcate into the industry the essential necessity of better safety provisions. We would rather avoid accidents than have accidents in breach.
§ 10.33 p.m.
§ Mr. Grant-Ferris (Nantwich)
I am very much in sympathy with what was said by the hon. Member for Sunderland, North (Mr. Willey) about responsibility being put upon employers, but I am afraid he has not a hope of getting what he wants done. I understand that it would be impossible to bring in any sort of order, as it would be ultra vires. It would need fresh legislation, with all its attendant difficulties.
Yesterday, several members of the National Farmers' Union, from branches in my part of the country, visited several hon. Members of this House to see what could be done. It would appear from what they said that the manufacturers said they could hold themselves under no obligation to do anything about this problem. We had a word with my right hon. Friend the Minister, who said he was not of that point of view. He believed that the manufacturers were going to do everything they could to make sure that these power take-offs were made safe. The misunderstanding must be between the people who came to see hon. Gentlemen opposite and myself yesterday, and what the Minister seems to have in mind about the manufacturers' intentions. The point might well be cleared up.
§ Mr. Godber
Perhaps I could clear this point up at once. During my opening remarks I chose my words rather carefully. I said on this point:During our consultations the manufacturers assured us that they will do everything in their power to ensure complete and satisfactory guarding of machines.Subsequent to the discussion I had yesterday, I took the trouble to check on this to be quite sure. I got in touch again with the Agricultural Engineers' Association and advised them that I was going to use those exact words tonight. In a letter I had from them yesterday they did not in any way dissent from that view.
§ Mr. Grant-Ferris
I am very much obliged to my hon. Friend. I am sure the House will be glad to know that we have that gentleman's agreement and undertaking from the manufacturers to do what we cannot force them to do by law.
§ 10.37 p.m.
§ Mr. Sidney Dye (Norfolk, South-West)
It is to be regretted that, after discussions with representatives of the employers and workers in agriculture and the manufacturers, there is failure to agree that these Regulations really meet the intention of the Act.
The farmers are concerned that there is not an obligation on those who sell the machines to see that in all respects they conform to the Regulations. The workers are concerned that too big a responsibility has been placed on the worker as such to see that the machines conform with the Regulations. The hon. Gentleman has stated that, arising out of the discussions with representatives of the manufacturers of agricultural machines, he has had satisfactory assurances that they will do everything they can to make the machines conform with the Regulations. But to what does that refer? Does it refer to new machines which will be on sale in a year or two? Does it also refer to machines in use today? Do the manufacturers give an undertaking that they will be able to supply guards conforming to the Regulations and that they can be fitted to all the latest models of tractors and power take-offs now in use?
This problem will be bigger in a few years' time. In 1958 and 1959 the proportion of tractors made before the law was passed will be far greater than those which are new to the farms. Farmers will be concerned to know if the assurance applies to the latest machines and tractors now on the farms. Will it be easy to bring them into accord with the Regulations? That aspect of the matter is of the utmost concern to farmers. If the hon. Gentleman cannot give a full assurance to cover that, he ought to get in touch with manufacturers and farmers' representatives and have further discussions.
Will the hon. Gentleman give an assurance that the Minister will consider circulating a simple leaflet on these Regulations for the farmers and farm 1498 workers? If the farm workers are to be legally responsible, a simple leaflet which they can easily understand should be widely distributed among them. It should be drafted in consultation not only with the National Farmers' Union but also with representatives of the agricultural workers. It should be circulated throughout the country through branches of the Agricultural Workers' Union, and certainly through machinery clubs, which are doing such good work in bringing workers into touch with the latest devices and machines and how they should use them. That is of the utmost importance. I hope that there will not be the same difficulty with regard to this matter as there was under a recent Act with regard to forms which were not understood and not even available. Let us have something very simple which the farm workers and the farmers throughout the country can understand.
§ 10.40 p.m.
§ Mr. J. E. B. Hill (Norfolk, South)
This debate has already shown the wisdom of making the safety Regulations a matter of an affirmative Resolution, because they are extremely important. Although the hon. Member for Sunderland, North (Mr. Willey) and other people have criticised the delay in bringing forward these Regulations, I do not think it has been sufficiently appreciated how detailed have been the nature and the range of the consultations undertaken and the number of parties which the Ministry has consulted in the matter. The Parliamentary Secretary told me the other day in answer to a Parliamentary Question that no less than 64 organisations have been separately consulted in the matter of these Regulations and of the first-aid Regulations, which are not before the House at the moment.
I wish to make one or two remarks about the safety Regulations. I think that the ladder one is fairly straightforward, and all I would say is that I welcome the requirement that an employee or anyone else should report a visible defect in a ladder because I think that might serve to prolong the life of farm ladders. Too often one comes across a ladder which has a couple of rungs missing and no one knows how it happened. One will now be able to know how it happens, and perhaps be in a position to make suggestions.
1499 A difficult safety Regulation is the power take-off one. I want to mention one or two points with regard to the National Farmers' Union's concern that the Regulations should have been obligatory on the manufacturers and distributors as well as on the employer. I have a good deal of sympathy with that view, and I must say that I am sorry to find that it is considered to be ultra vires. My impression in Committee was that we hoped that we were taking powers to enable us to impose regulations on whatever people or bodies might be appropriate in order to secure our objective, namely, the avoidance of accidents on farms. It was certainly my belief that we had the necessary power to impose regulations on manufacturers.
Throughout the Committee stage—indeed from the outset—I was concerned because I thought that we were paying far too much attention to the precedent of the Factory Acts in dealing with this quite new field of safety. I feel that it is a very dangerous precedent upon which to work because conditions are so different. I had hoped that we could have started out in a new field without being bound by factory example, but borrowing from it where desirable.
§ Mr. Deputy-Speaker (Sir Gordon Touche)
The hon. Member is criticising the Act. He can discuss only what is in the Regulations.
§ Mr. Hill
It is only because the draft Regulation which has already been referred to has been found to be ultra vires that I bring it in, because it seems to me that one of my fears has come to light in a rather unexpected manner. We may find that the factory precedents to which reference has been made may be rather hard to apply in agriculture.
§ Mr. Hill
Mention has been made of the objection to the worker having concurrent responsibility with his employer for seeing that guards are fitted, but I think that there is one great difference between farm and factory practice in this respect. In the field, the machine operator is also the machine adjuster and fitter. He goes out on his own and if, unfortunately, the machine needs adjust- 1500 ment he will very often have to remove the power take-off guard to make it. The safety load clutch may be slipping and need tightening and so on. Therefore, although the farmer may see that the guard is in position when the man leaves for the field, it is part of the man's ordinary duty, when in the field, to adjust the machine as necessary, and that may involve removing the guard. I therefore do not see how, in the context of agriculture, we can possibly not make the worker also responsible for observing the precautions while he is using a machine.
In so far as the farmer is able and capable of seeing that the guards are fitted, clearly it is his duty to do so, but if it came to any negligence, I imagine that the question of contributory negligence would obviously be of importance. The doctrine which I understand might obtain is that of last opportunity—who last had the chance of seeing that the guard was in position. But I do not think that we can do other than we are doing by these Regulations, which is to place the duty equally on the employer and on the worker, because the object, of course, is to avoid accidents. I am convinced that unless the worker is warned to be alert, an accident may happen however many guards are provided.
I very much regret that manufacturers are not having this obligation put upon them, because it is desirable that we should work towards a state of design in future in which as many implements as possible should be interchangeable. The power take-off shaft is one of the bogies. Firm A's tractor will take Firm A's power-driven implements but will not take those of Firm B. It would help if, by regulation, we could evolve a British Standard which would enable all manufacturers gradually to produce implements which were interchangeable, because one of the dangers will be that, however many guards we have, the power take-off shaft and the guard will not marry up, and it is then difficult to make the guard secure.
The advantage of having regulations for manufacturers generally would be that they would have to get together and, in conjunction with the British Standards Institution, would evolve a standard fitting. In the long run, that would be of the greatest advantage to agriculture. As things are, this is purely voluntary, and although every manufacturer will 1501 guard his own machinery it will be more difficult to get them to come together to evolve a standard product. I hope that my hon. Friend the Parliamentary Secretary will watch that, because it bears directly on future danger and chance of accident.
Finally, may I repeat the plea already made for simple publicity, and ask, once again, that the Ministry should consider, without too much delay, the making of a film to illustrate farm dangers and the way they may be avoided.
§ 10.50 p.m.
§ Mr. Cyril Bence (Dunbartonshire, East)
I must ask the House to forbear with an engineer intruding into this discussion, but when I first read these Regulations I saw that once again, by their ambiguity, they were recreating what, in factories, has been a terrific problem all my life—and, I have no doubt, before.
In Article 3 of these Regulations, reference is made to "using a tractor". As we use that expression in industry, it would be assumed that the tractor is being used for its legitimate purpose, driving some machinery, hauling something, or ploughing. In the Factories Act, it is provided that, if one is using a machine tool in its productive processes, and it is unguarded, if one has oneself removed the guard one is liable oneself, but if the employer has not seen to it that the guard is on, then he is liable and can be sued at common law. However, if a man is employed in industry as a skilled man, as a tool maker, as I was, that is when the difficulty arises.
A tool maker is very often called upon to go to a machine, a big press, for instance, and overhaul something which has gone wrong. All the guards are taken off in order to get at the tool; they have to be. Accidents happen in these circumstances. I saw an apprentice lose all his fingers; he was working at a machine with the guard off—he could not work otherwise—and he had to operate and adjust moving parts of the machine. He set the parts of the machine in motion with the guard off in order to make the necessary observations and adjustments. In the course of doing his job, he suffered the accident, but he had no cause of complaint because the machine was not being used.
What is the position as regards tractors? I thought that the hon. Gentle- 1502 man the Member for Norfolk, South (Mr. J. E. B. Hill) was going to deal with this point, because he mentioned the mechanic going out into the fields and having to make adjustments to the machine if it broke down. Very often, with spline shafts, a man cannot check or test them without taking the guards off. After taking off the guards and making the necessary adjustments, must he then put all the guards back before he sets the shaft in motion, if he has to overhaul the machine? The hon. Member for Totnes (Mr. Mawby) has worked in industry, and he knows this very well. There are very many machines where the time taken in removing and putting back the guards would be out of all proportion to the work of repair.
§ Mr. Bence
That is the law, I know; but the hon. Gentleman knows very well that there are many cases where, especially if they are guards which must be capable of withstanding a weight of 250 1b., the farmer or farm worker would spend an enormous amount of time pushing them off and on in order to make adjustments.
It is a serious problem in industry, and it has been a problem for years. The hon. Member for Totnes is, I believe, an electrical engineer, and he knows about these things. There are types of machine where the taking off and putting on of the guards could be a six-hour job. Then, after having put them all back on, the man may find, on testing the machine, that it is still faulty and have to spend more hours removing the guards again, in order to make another ten-minute adjustment It just is not practical.
We fought for what we regarded as proper protection in industry and we tried to get the Factories Act amended. All trade unionists in the engineering industry know that the fight has been going on for years. But we got nowhere. Now, in agriculture, the same sort of thing is to be repeated and perpetuated.
The tractor driver whom a farmer employs is expected to be not only a driver but a mechanic as well. What is to be the position of the motor mechanic? He will have to deal with machines without guards and will have temporarily to run them in that state. One cannot 1503 keep on taking guards off and putting them on again; it just is not practical. Yet, according to these Regulations, if a farm worker or farmer allows a machine even to be tried out, if he allows the shaft to go into motion without a heavy guard on or with loose clothes a certain distance from the shaft, he commits an offence. I presume that in so doing the worker, if injured, would not be covered and would have no case at common law.
§ Mr. Grant-Ferris
How does the hon. Member see the case of an agricultural engineer who attends to a broken-down tractor machine in a field and who is not the employee of the farmer? He must take off the guard to repair it. I agree that it must be tested and that the engineer cannot go to all the trouble of putting it on. What is the position? Is the farmer responsible? Are such men covered by their own employers' insurance, or what? They must be covered in some way.
§ Mr. Bence
But in the factory they are not.
I am not conversant with all the conditions on the farm, but when I read the Regulations I related them to my experience as a mechanic in industry, as one who has done a great deal of maintenance work and seen an awful lot of accidents through men testing and operating machines, not in the production process, but in checking and testing them and putting them into production. I have seen men injured and no claim made. When I read the Regulations I considered them unsatisfactory, because it seemed to me that similar circumstances were being created and the same anomaly would exist.
I should like to know whether I am drawing false conclusions. If I am, I am sorry for having delayed the House; but if not, I hope that the Regulations will be withdrawn and redrafted so that the man who is a driver/mechanic, although he has the guard on when using the machine in the processes for which it is intended, shall not be held liable if an error or fault develops in the 1504 machine and he has to strip off parts of it to rectify the error. Surely, he is to be covered if anything happens to him notwithstanding that in doing the maintenance repair the guard is off.
§ 10.57 p.m.
§ Mr. Archer Baldwin (Leominster)
The hon. Member for Dunbartonshire, East (Mr. Bence) has raised a matter of considerable substance and we could spend half the night debating it, but I do not propose to do so. I merely wish to ask my hon. Friend the Parliamentary Secretary whether he remembers the words used by his predecessor when we took up the question of making manufacturers responsible for ensuring that the machinery they turned out was properly guarded.
These are the words to which I refer:In these regulations we shall specify what safeguards, guards, and so on, are to be employed, and that will in effect prevent a manufacturer who fails to conform with those regulations from selling his particular machinery because it would be an offence for the farmer to use it."—[OFFICIAL REPORT, Standing Committee A, 6th March, 1956; c. 24–5.]That was quite explicit and satisfied those of us who in Standing Committee took up the question of manufacturers being compelled to turn out their machinery properly guarded according to the regulations. That was the opinion of my hon. Friend's predecessor.
What has altered the opinion of the Department so that that cannot be done? I do not have much fear, because generally speaking manufacturers have properly guarded their machines. At one time, chaff-cutters were turned out without any guard. Now, every one is properly guarded. I can only hope that the manufacturers will stand by what they have already told my hon. Friend and will ensure that all machinery which they turn out complies with the Regulations.
§ 10.59 p.m.
§ Mr. John M. Temple (City of Chester)
I welcome both sets of Regulations but I should like to draw attention particularly to those concerning ladders. I notice that they contain provision for the reporting by workers of defects. I regard that as particularly important. Regulation 4 deals with the obligations on both employer and worker.
1505 That spirit of co-operation in agriculture is tremendously valuable, and I should like to know from my hon. Friend the Parliamentary Secretary why the power take-off Regulations, which are the more important of the two, do not embrace approximately the same provisions as are contained in the Regulations dealing with ladders.
I should like to draw my hon. Friend's attention to Regulation 4 (4) of the take-off Regulations, and to the wordsand shall he maintained in good conditionThis obviously embraces the reporting of defects, and it is particularly in respect of those words that I ask for an explanation why, in the first Regulations, we are not having a provision about the reporting of defects by workers.
There is only one other observation which I should like my hon. Friend to enlarge upon, and that was one made by the hon. Member for Norfolk, South-West (Mr. Dye), about the publicity which will be given to these Regulations on the farms. I believe that to be most important, and I hope that provision will be made whereby we shall see a card or some sort of factory regulation brought out, so that it can hang in the tractor shed, or on the implement, or in the place where the implements will be looked after. If my hon. Friend will give me assurances on these points it will be of great interest to everyone.
§ 11.0 p.m.
§ Mr. Clifford Kenyon (Chorley)
I wish to support the hon. Member for Nantwich (Mr. Grant-Ferris) in the point he raised, which was put to us by a number of farmers two nights ago, and to say that the answer given by the Parliamentary Secretary is quite satisfactory as far as it goes, but that the farmers wanted something more than that. I am sorry that the hon. Member who was interrupting a short time ago on points of law is not here now, because I cannot understand this position of ultra vires.
In Section 1 (3, b) of the Act there are the words:… prohibiting the sale or letting or hire of any machinery, plant, equipment or appliance which does not comply with the requirements of the Regulations.If that is in the Act, why is it ultra vires to put it in Regulations? Why is it outside the Regulations, when it is in the Act? Are the Regulations greater 1506 than the Act? I am not a lawyer in any sense—for which I am often glad—but it seems to me that when those words are in the Act they can be included, and the provision can be included, in the Regulations. I am sorry we cannot have it explained, unless the hon. Member will explain it, but that is the point that has troubled the farmers.
I cannot understand why it has been necessary to make the date of the application of the Regulations to new tractors twelve months hence. It seems that new tractors can at present have these appliances fitted. Surely manufacturers are not making them now without these safety guards, so the time could well have been advanced by some six months at least.
One difficulty that has been mentioned was that of tractors which have been in operation for many years; but I cannot see how any responsibility for their condition today can be placed upon those who made them years ago. It seems to me that subsidiary firms will produce the guards that are necessary for these tractors as quickly as possible. Perhaps the Minister could get in touch with these machinery firms and bring this matter to their notice, because it is essential that the guards be provided quickly. One of the greatest dangers with tractors would arise if farmers themselves were to improvise safety guards for them. That would be far more dangerous than leaving the tractors as they are. That is what many of us have observed. I hope that the Minister will urge the manufacturers to press on with the making of the guards so that they may be fitted as quickly as possible.
§ 11.5 p.m.
§ Mr. Godber
With permission, and by leave of the House, I should like to reply to some of the important questions raised in the debate. The hon. Gentleman the Member for Sunderland, North (Mr. Willey) raised one or two of considerable interest and two of substantial importance. In the first place, he asked about the length of time it had taken to produce the Regulations. I was a little disappointed that he did that, because we have worked hard to get them out. For example, we had consultations with thirty-three different associations about them, about highly technical matters. I think the hon. Gentleman will realise on knowing that that we did our best. I am sorry 1507 that we have not pleased him. We are just as anxious as he is to make progress.
He asked me whether it would be feasible to have the dangerous parts of power take-offs completely enclosed, and not to have just a shield on top. He informed us that he knew of some foreign makes that had a completely enclosing fitting. The only foreign ones I have seen are rather similar to our own. I am satisfied that the shield we propose will do the job we want done. It would be very difficult to work the completely enclosing shield; there would have to be a movable part and I think it would often prove impracticable. I believe that we shall achieve what we are seeking to do by the means we propose.
In answer to the hon. Gentleman's question about the 250 lb. weight, I would say that we are following the standards laid down by the British Standards Institution.
He said that the N.F.U. was worried about putting the onus on the manufacturer and that there was anxiety lest this might be ultra vires. I have taken the best legal advice I can on this question, which is one of some importance. As the hon. Gentleman rightly said, we originally included that in the draft, but we then found that that provision did not conform to the Act, and so we removed it. We were advised that it was ultra vires.
The simple answer lies in the Title to the Act, which says it relates tothe welfare of persons employed in agricultureand the Act defines them as persons employed under contracts of service. It is impossible to say that the tractors will necessarily be used in agriculture. They may be equally suitable for use in land drainage or building operations. What is even more important is that it is impossible to say that tractors and machines driven by tractors, though their use in agriculture may reasonably be presumed, will be used solely by workers employed in agriculture. They may be used by self-employed farmers or members of farmers' families who are not under contracts of service. I am advised that the legal position therefore is that any Regulations of the kind contemplated, however worded, would inevitably extend to classes of persons for whose protection the Act was not passed.
1508 This being so, there would be a grave risk of the Regulations being challenged by the Select Committee on Statutory Instruments and perhaps upset in the courts. That is the best legal advice that I have been able to obtain, and in the light of that advice I can see no possibility of seeking to include this requirement in the Regulations.
§ Mr. Willey
I am much obliged to the hon. Gentleman for his reply. I will not be absolutely bound by what he says in answer to my further question, but can he say whether he has consulted the Law Officers about this matter—or is it purely an opinion expressed within the Department? I fully appreciate the practical difficulties, but I think that they are surmountable. On the pure question whether this is ultra vires, have the Law Officers been consulted?
§ Mr. Godber
This is the advice of my own legal advisers. I am quite willing to consult the Law Officers on this point, but I think that it is perfectly clear and that it is undeniable that the words in the Long Title go a long way to making it impossible for us to include people other than those employed under a contract of service. I am quite willing to make such further inquiries as I can, but I am reasonably satisfied, on the advice that I am given, that it is impossible for us to do as the hon. Gentleman wishes.
The hon. Member also asked another very important point, in regard to the position of the workers upon whom a liability was being placed—a definite responsibility which does not occur under the Factories Acts. Here again, I have been very carefully into this question, and I should like again to give the views that I have ascertained from our legal advisers, because this is a very important point.
First, we should understand that, quite apart from the Act and the Regulations made thereunder, an employer, at common law, owes a worker in his employment an obligation to take care to see that he is not exposed to any unnecessary risk. This is usually expressed as a duty to provide a safe system of work. If a worker is injured in consequence of his employer's failure to observe this duty he can bring an action at common law for damages for negligence.
It is, however, open to the employer then to show that the worker was guilty 1509 of contributory negligence, that is to say, that the worker was really to blame. If this defence succeeds the worker will lose his action, or if the court finds that the worker was only partly to blame it will direct that the worker shall recover only a proportion of the damages that he would have got if the employer had been wholly to blame.
The effect of the Act and the Regulations is to confer on the worker an additional cause of action, known as an action for breach of statutory duty. By virtue of this, if a worker is unable to show that his employer was guilty of negligence he can nevertheless succeed if he can establish that the accident was caused by the employer's failure to comply with the terms of the Regulations. To this class of action the defence of contributory negligence also applies, but in general it is true to say that the defence will not succeed if the contributory negligence complained of arises directly out of the employer's non-compliance with the Regulations—for example, if a factory worker lost his finger through contact with a circular saw which was unguarded.
To summarise, therefore, a worker's remedies at common law are in no way impaired, and the effect of the Regulations is to confer an additional remedy on the worker which he otherwise would not have, but this additional remedy does not enable him to recover damages as of right if the worker's conduct was the effective cause of the accident.
§ Mr. Willey
I am obliged to the Parliamentary Secretary for what he has said. The point I want to put is this: the employer may be clearly in breach of his statutory duty, in that he has caused or permitted to be used machinery without an adequate guard, but under the Regulations as they are at present drafted the worker is automatically in breach himself, because the Regulations provide that a worker employed in agriculture shall not use such a tractor. The worker is therefore prejudiced in his claim for damages because he is guilty of contributory negligence, I am sure that that is not what is intended in the Regulations and I am asking the Parliamentary Secretary to consider this matter again. The usual provision about the burden being on the worker is that he shall not do certain things, and they are speci- 1510 fied. But here, if we have a machine which is provided with a guard which the court finds to be inadequate, the worker who might sue at civil law will find that he is automatically up against this difficulty; because, under the Regulation, he is in breach of a statutory duty himself.
Will the Parliamentary Secretary look at this again? I should be grateful if he would, because, as things are, a worker might be prejudiced very much in a claim for damages.
§ Mr. Godber
I am not a lawyer, but if the worker can prove the negligence of the employer, then I should have thought that in spite of this, the contributory negligence point would be the same. However, I am perfectly willing to look again at the point, and to take advice on it, to confirm the view which I have tried to express.
Those, I think, were the two important points of substance and in both cases I am prepared to check on the advice which I have given; but that is the best advice which I have been able to obtain.
I apologise for interrupting again, but will the Parliamentary Secretary say if there will be further consultations with the unions concerned?
§ Mr. Godber
We are perfectly happy to discuss with the unions at any time; but I must tell the hon. Gentleman that we have had very close consultation with the employers' and the workers' unions quite recently. Quite recently we have been in consultation with the workers' unions and I was not aware that they were dissatisfied. They have taken a statesmanlike view in the matter of the framing of the Regulations. We have been in close touch with the N.F.U. It did not go all the way with us, and I have already explained why we have not been able to meet it. I am, however, perfectly willing to arrange further talks with the N.F.U.
I think that that disposes of the points made by the hon. Member for Sunderland, North. The hon. Member for Norfolk, South-West (Mr. Dye) referred to the question of manufacturers dealing with machines which are now in use. I do not think that we could expect manufacturers to accept obligations for machines which have been out of their 1511 hands for many years. I would certainly hope that they would be interested in mass producing some of these guards, but there is a case here for some of the smaller manufacturers to step in and fill the gap. I am also advised that the large manufacturers have given the assurance that they will help in every way that they can in respect of these machines, and I hope that that will satisfy the point which the hon. Gentleman was worried about.
My hon. Friend the Member for Leominster (Mr. Baldwin) said that in these Regulations we should specify what the safeguards are to be. I would refer him to what my predecessor, the hon. Member for Guildford (Mr. Nugent), said last year in answer to points made by my hon. Friend when the Agriculture (Safety, Health and Welfare Provisions) Measure was before the House. My predecessor then said:In these regulations we shall specify what safeguards, guards, and so on, are to be employed, and that will in effect prevent a manufacturer who fails to conform with those regulations from selling his particular machinery because it would be an offence for the farmer to use it".—[OFFICIAL REPORT, Standing Committee A, 6th March, 1956; cols. 24–25.]Those words stand today and are identical with what I have been saying. Given these Regulations, farmers will not buy a machine which does not comply with them. There is no discrepancy between what was said in Standing Committee and what I have been saying this evening.
The hon. Member for Chorley (Mr. Kenyon) dealt with the point of certain matters being ultra vires; that, I think, I have answered fairly fully. He had another point about the length of time. He asked why there should be a delay of twelve months. All the arguments we have had adduced to us were that we were not giving enough time. Anyway, most of the tractors are now fitted with these safeguards and it will not make much material difference. While we sympathise with the point of view of the hon. Gentleman, we felt it was reasonable to give a fair measure of time.
I have tried to deal with the points raised. I hope that after my explanations the House will be willing to approve these Regulations, which will be a valuable step forward in making work on our farms safe. I am grateful for the helpful comments.
§ Mr. Godber
We will give the matter the utmost publicity. It is most important that everybody concerned should know about this matter.
§ Question put and agreed to.
That the Draft Agriculture (Power Take-off) Regulations, 1957, a copy of which was laid before this House on 4th July, be approved.
§ Draft Agriculture (Ladders) Regulations, 1957 [Copy laid before the House, 10th July], approved.—[Mr. Godber.]