§ 9.15 p.m.
§ Mr. Hare
I beg to move, in page 9, line 4, to leave out "employed to work" and to insert "working".
I wonder, Mr. Deputy-Speaker, whether we could discuss at the same time the Amendments in Clause 20, page 13, line 1, leave out "employed to" and insert:shall in the course of hisand in line 2, leave out from "applies" to "be".
§ Mr. Hare
Thank you, Mr. Deputy-Speaker. The purpose of the Amendments is to extend the cover provided by Clause 15, dealing with the fencing of exposed parts of machinery, and Clause 20, dealing with the prohibition of heavy work, not only to persons "employed to work in the premises", but also to persons employed by outside employers to do some work there—for example, window cleaners and delivery men—as well as to self-employed persons working in the premises.
523 The desirability of this step was discussed in Standing Committee, when the hon. Member for Derby, North (Mr. MacDermot) moved an Amendment on the subject. My hon. Friend the Parliamentary Secretary undertook to bring the Bill into line with the corresponding provision of Section 14 of the Factories Act. That is what we have done.
§ Amendment agreed to.
§ Mr. MacDermot
I beg to move, in page 9, line 5, at the end to insert:(2) Without prejudice to the generality of the foregoing subsection, no dangerous part of any machinery shall be deemed to be securely fenced unless the fencing or guard provided is effective to prevent injury to every person working in the premises through the ejection of materials or of parts of the machinery or through clothing or tools or any other things attached to or held by persons working in the premises coming into contact with that part:Provided that where the only risk of injury through the ejection of materials is a risk of injury to the eyes, the requirements of the foregoing subsection shall be deemed to be complied with so far as that risk is concerned if suitable goggles or effective screens are provided to protect the eyes of persons who are subject to that risk.
§ Mr. Deputy-Speaker
With this Amendment, we can discuss the two following Amendments, in page 9, line 6, leave out from "the" to end of line and insert:protection of the operator of any machinery against the risk of injury through contact between him and his clothing or tools or any other thing attached to or held by him and a dangerous part of theIn line 11, leave out from "prevents" to end of line 12 and insert "any such contact".
§ Mr. MacDermot
If you please, Mr. Deputy-Speaker. Before I begin with the Amendment, I wish to thank the Minister for the Amendment which has just been passed and which meets the point raised in Committee. I hope that the right hon. Gentleman will be equally co-operative on this Amendment. I am glad to see that the Attorney-General has joined us, because this is my second attempt to raise a matter which aroused interest in Committee. It is a matter which we discussed at length. I took some time in proposing it and it will be necessary for me to take a little time in deploying my argument again tonight.
524 I propose briefly to recapitulate the argument for an Amendment to deal with the objections that were raised in Committee by the Government and to explain how I have sought to meet some of them in the new form which our Amendments take. Clause 15 follows closely and is modelled upon Section 14 of the Factories Act. That Section is familiar to many hon. Members and is, broadly, the Section which is designed to impose a duty upon employers to fence dangerous machinery.
Until 1946, Section 14 was always understood to impose an absolute duty upon the employer, subject only to what is known as the foreseeability test. That is to say, provided that it was foreseeable that injury could result from a moving part of a machine, there was a duty on the employer to fence and to protect workmen from that danger. If the part was dangerous when in motion, if danger was foreseeable and if injury resulted from the failure to fence, the employer was liable and the man could recover compensation.
As also is well known, that Section has an old history, going back to 1891. Since 1946, there have been a number of decisions in the highest court in the land, the House of Lords, and it has been a matter of great surprise to the legal profession and to all those responsible for applying the Factories Act to see the way in which the protection thought to be afforded by that Section has been whittled down by, in particular, four decisions of that court. I do not think that it is too much to say that these decisions are almost an object lesson in the way in which the intentions of Parliament can be frustrated by judicial interpretation. Perhaps I may just briefly outline what these four cases are.
The first is the case known as Nicholls against Austin in 1946. The plaintiff was a lady working a woodworking machine. She was injured by a fragment of wood which she had been feeding into the machine and which was thrown out by the machine. It flew out and it hit her. There was no fence on the machine, a danger which was foreseeable. If there had been a fence provided it would have protected her. Nevertheless, her claim 525 failed. The reason it failed was stated pithily by Lord Simonds in these words:The fence is intended to keep the worker out, not to keep the machine or its products in.It is that formulation which came as a shock to the legal profession, because for over 50 years, in case after case after case, claimants had been recovering damages in cases where they had been injured by work pieces which had been thrown out by machines or parts of machines. I think the original case was in principle established as far back as 1897 in a case called Hindle and Birtwhistle. In that case a weaver was involved. A shuttle was thrown out by the loom. It struck the plaintiff and the plaintiff recovered.
The decision in Nicholls and Austin, the surprising decision, was based on the wording of a proviso to Section 14 which is now in the 1961 Act in which it become Section 14 (2) and which is copied into this Bill and is Clause 15 (2). I think I should read that proviso:In far as the safety of a dangerous part of any machinery cannot, by reason of the nature of the operation effected by means of the machinery, be secured by means of a fixed guard, the requirements of the foregoing subsection shall be deemed to be complied with if a device is provided that automatically prevents the operator from coming into contact with that part.That was originally the proviso, and I refer to it as the proviso, and that was only dealing with the safety of the operator, but the Section itself is meant to protect far more than the operator. It is meant to protect all the people working on the premises, as the Minister has just told us on the last Amendment we were discussing. The wording of the Section is that it has got to be safe for every person working on the premises.
Unfortunately, it appears that their Lordships were not told in Nicholls and Austin that this proviso had been introduced only as an Amendment to the 1937 Act. They had assumed that it had been there from the start. They had used the rather limited field of this proviso, dealing only with the protection of the operator from coming into contact with the dangerons part, as if it governed a claim under the original protection in the original wording of the Section, and it was that which led to this formulation, this interpretation, by the court that what Parliament intended by the fencing 526 was merely protection against a man's coming into contact with a part and not with materials or parts of the machinery which were thrown out.
In a later case Lord Reid expressed doubt whether, if the earlier court had been told the true history of the Section and how this proviso had only been added in the 1937 Act, the court would have come to the conclusion which it did in Nicholls and Austin. But, of course, that court is bound by its own decisions. Consequently when we came to the second case, that of Carroll against Andrew Barclay and Sons Limited in 1948, we got the following result. That case dealt with a belt on transmission machinery. It was a belt running over pulleys, and there was a fence which was 5 ft. high, which would provide adequate protection in the ordinary way. But what happened in that case was that the belt broke and lashed out over the fence and struck the plaintiff. Again, the plaintiff failed, and he failed because of the application of the principle in the case of Nicholls and Austin, that there was no duty to fence against part of the machine flying out.
In that case there was some doubt whether the danger of the belt lashing out over the top of the fence was foreseeable. Consequently, there were a number of cases, including cases which went to the Court of Appeal, in which plaintiffs continually succeeded in claims arising out of injuries by parts flying out where they could establish that it was foreseeable that parts could fly out. For instance, we have the case of an abrasive wheel, a hand-operated grindstone, which burst, which is a well-known risk, something which is foreseeable. In that case the plantiff succeeded.
But even that degree of protection was swept away by the next decision, that against the Steel Company of Wales in the case Close v. Steel Company of Wales in 1961. In that case the plaintiff was operating an electric drilling machine, the drill shattered and a piece entered his eye. It was held that even if it were foreseeable that the drill might shatter, there was nevertheless no obligation to fence.
The extent to which in that decision the courts, by their interpretation, had departed from the evident intention, as I suggest, of Parliament in the original 527 wording was put very forcibly by Lord Denning in a dissenting judgment in that case. He said:I fail to see how any speeches in this House"—referring to judgments in the earlier cases—can bind your Lordships to hold that a dangerous part of machinery need not be fenced when the statute expressly says it shall be.Nevertheless, by majority decision, that was the way the decision went.
The fourth and last case was last year, 1962—Sparrow against Fairey Aviation. In that case a lathe setter was removing burring in the central hole of a petrol filler cap which he was manufacturing. The part which he was making was a ring with a central hole 2½ inches in diameter. It was held on a lathe by the jaws of the chuck gripping inside the hole, and then that part, with the jaws, rotated at 500 revolutions per minute, and the plaintiff's duty was to hold a tool against the edge of the central hole in order to remove the burring. He had to hold it in a position where it was only one-sixteenth of an inch away from the jaws of the chuck.
The plaintiff acted perfectly properly. There was no negligence on his part. But, as was plainly foreseeable, by accident the tool came in contact with the jaws of the chuck. I emphasise that the plaintiff was acting properly and there was no negligence. The chuck was a dangerous part which should have been fenced. All this was accepted. If it had been fenced, the plaintiff would have been protected and would have recovered. Nevertheless, he failed. The reason why he failed was that his hand, which was injured, did not come into contact with the chuck, which was the dangerous part, but was flung against part of the casing of the machinery, something which was not a dangerous part. Because there was no contact between the man and the dangerous part, it was held that it was not a risk which was required to be fenced and guarded against, and the claim failed.
Some very strong things were said by their Lordships in delivering the judgments in that case. Lord Reid, who felt himself bound by the earlier decision and reluctantly had to give judgment against the plaintiff, said: 528It is too late to question the rule which this House laid down in Close's case, and we must do our best to apply it in a practical way.He went on:Accordingly with regret and some hesitation I must move that this appeal be dismissed.9.30 p.m.
Another of their Lordships who dissented said that in his view the doctrine stare decisis—that the court is bound by previous doctrine—… is a doctrine to be honoured in the interests of consistency and certainty; but to apply it here would be to break new ground without advancing those interests, and to reach a point where the intention of Parliament could suffer erosion by a sort of judicial inadvertence which even the most anxious circumspection cannot entirely avoid.I trust that I have not overstated the case. I suggest that that is the position on which the law now stands. The House is being asked to re-enact that law in this Clause. If we do not amend the Clause, we will be saying that the law as at present states the duty, no more and no less, as it applies to shops, offices and railway premises.
Under that law there is no duty on the employer to fence a machine against the danger of the work flying out and injuring the operator. There is no duty to fence it against the danger of part of the machine flying out, or against the danger of a tool coming into contact with a dangerous part of the machine and throwing the operator against another part. It is doubtful if the law at present covers the situation where clothing comes into contact with a dangerous part of the machine. There is no firm decision on that point.
Do hon. Members want to enact that position again in this Bill? That is what we shall be doing if we pass this Clause unamended. It is plain from these decisions that the wording borrowed from Section 14 is manifestly defective. Why should we repeat it here?
In Committee I put down an Amendment designed to afford protection in these matters. The arguments with which it was rejected can be summarised briefly. Firstly, there was some attempt to minimise the scale of the problem. We were told that in the statistics of accidents in factories only 1.3 per cent. were of the kind which would be covered by my Amendment.
529 But when we asked for the total figure it turned out that it was 2,500 accidents a year. I do not believe that any hon. Member will seek to minimise a problem involving the health of that number of people a year. It would need a lot of unofficial strikes to result in the loss of time which arises from injuries which keep men and women off for a minimum of three days and most of them for very much longer.
Secondly, it was pointed out, as I had already pointed out, that the nature of the problem was such that it was much more likely to arise in factories than in offices, shops and railway premises. That, of course, I accept. But even if it is of greater importance in factories that is no reason why we should not put the matter straight for offices, shops and railway premises. Nor is it beyond the resources of this House quickly to pass legislation to put the matter right in factories. I should be happy to introduce a Ten-Minute Rule Bill myself.
Thirdly, it was said that half these injuries were to eyes. It was pointed out that many things thrown out by machines are harmless, except to the eyes. It was further said that in half these cases of injuries to the eyes, the plaintiffs ought to have been working with goggles under the Eye Protection Regulations. The fact that a plaintiff was not wearing goggles, of course, may give him some claim under those regulations if he should have been wearing them, but those involved in the rest of the eye injury cases would have no remedy at all.
Then it was said that my Amendments would require the employer to provide a screen against the ejection of any and every work piece; to protect the worker against quite harmless materials being thrown out. I reject that argument, as I did in Committee, because it is only if the part is dangerous if thrown out that there is any requirement for the protection at all.
Then it was said that what I was asking for would prevent the use of certain safety tools. Art example was given of an oil can with a long spout which went through a guard to lubricate the machine while in motion. Another example was the rammer by which one rams things into a mincing machine. My answer is that unless the use of those 530 tools could in itself produce some danger to the workmen there would be no objection to his using them, but if the effect of using one of them could be to fling his hand against some other part so as to cause him injury, then it is a matter against which he ought to be protected.
Finally, and this was perhaps intended as the most serious argument put forward, it was said that this is a matter which is better dealt with by regulations. I always get suspicious when I hear that argument, because one has a long memory in these matters and knows how many times one has heard the argument and then not seen any regulation.
In any event, I challenge that this is a matter better dealt with by regulations, for this reason: the general practice under the Factories Act—and I think it is a good one—is to start with an absolute protection, or as we thought an absolute protection, provided by Section 14. Sometimes, in some industries, one gets a case where it is not practical to provide the absolute protection, to provide an effective guard or fence against all dangers. An obvious example is the circular saw. It is not possible to produce a guard which will provide complete protection against the danger of a man's hand coming in contact with a circular saw. Consequently, there were framed and passed the Woodworking Regulations which covered circular saws and many other kinds of woodworking machinery.
These lay down a requirement for fencing and describe in detail what kind of fence has to be provided for each of these machines, and then, provided the employer provides that fence, he is exempt from the absolute provisions of Section 14. He has complied with all that he is required to do. In other words, the regulations should be used for formulating a more limited kind of protection which the employer is to provide in cases where it is not practical for him to provide an absolute protection, but as a matter of legislation the way one achieves the result required is to start by imposing an absolute protection and exempting from it by passing regulations.
What is being put against us here is that that is the wrong way to do it, and that the right way to do it is to leave the field about which I have been speaking 531 wide open, accept the decisions of the House of Lords, and not try to change the legislation about that, and the Government will look again and when they find a case in which they think there is a need for special legislation they will meet the requirement by extending the Eye Protection Regulations, by having grindstone regulations, or whatever it may be.
The grindstone legislation provides an excellent example to reinforce what I was saying about the suspicion that we have of regulations. Grindstone regulations have been in draft for 14 years, and still have not seen the light of day. In Committee we were told by the Parliamentary Secretary that there was a new draft which was just about to be circulated. I was told the same thing in Committee on the Factories Bill in 1959, and we still have not seen them. I therefore urge that the right way to deal with this is to reassert our intention that there shall be absolute protection and then leave regulations to be formulated where that is not practical.
What these Amendments seek to do is, first, to give protection against materials or parts flying out. Secondly, to give protection against tools or clothing or other things held by the operator coming into contact with the dangerous parts and producing injury. Thirdly—and this is to meet a point raised in Committee—if the only risk of things flying out is a risk to the eyes it will be sufficient if the employer provides goggles or a screen to protect the operator from that risk.
Finally, they extend what I have been calling the proviso—that is to say, subsection (2)—relating to automatic devices to provide protection where a complete guard is not practicable, to include all relevant risks and not merely the risk of contact between the operator and the dangerous part.
There is widespread support for the Amendments. In Committee I quoted a letter I had received from Mr. Ian Fife, editor of Redgrave, the standard textbook on the Factories Act, in which he strongly supported every point put forward in the Amendments. Since the Committee stage there has also appeared an article in the Law Society's Gazette for this month, written by Mr. Anthony Wolf, in which he supports what we 532 are seeking to put forward. I hope that we shall hear from the Minister or the Attorney-General—or both—a more positive and constructive answer to this point.
§ Mr. Whitelaw
I do not seek to intervene to keep out other hon. Members, but I thought it right and proper to try to deal with this very important Amendment in the fullest possible way. This was my right hon. Friend's wish, and he asked me to take part in discussions in order to obtain the best technical advice which is available to us on the practical side of the matter. I shall deal with the results of that discussion. My right hon. and learned Friend the Attorney-General will deal with the legal aspects of the matter. I shall therefore confine myself purely and simply to the technical aspect—with great relief.
The hon. Member for Derby, North (Mr. MacDermot) has slightly modified his proposals, in that he has changed the provision concerning injuries to the eyes. I agree at once with some of the points he made. Of course it is true—as was said in Committee—that these accidents are much more likely to occur in factories than in the kind of premises with which the Bill deals. That fact is accepted on both sides of the House. He says, nevertheless, that when passing new legislation it is important to take account of the problems which have arisen in the Factories Acts legislation. Again, I wholeheartedly agree.
My point is simply that, bearing in mind all the legal aspects to which my right hon. and learned Friend will refer, the question is simply this: would it be practical, if right in law, to make a general provision making it an absolute requirement to provide protection against the ejection of materials from machines, and also against the possibility of tools being caught in a dangerous part of a machine? The advice that I was given on these two points was that from the practical aspect there was no doubt that to impose such an absolute and general requirement in this respect would undoubtedly make it impossible legally to use many machines which are now in common use.
§ Mr. MacDermot
I hope that the hon. Gentleman will not mistake my argument when seeking to refute it. I have not asked—nor do the Amendments provide 533 —for a prohibition on the ejection of materials; they merely provide that where the ejection of materials would cause danger the workman shall be protected against that danger.
§ 9.45 p.m.
§ Mr. Whitelaw
I thought I was arguing that point. I think that the argument I am advancing is valid in respect of that point as well.
The technical advice I was given indicated that to fulfil the requirements in the Amendment would mean placing an obligation on employers which could not practically be carried out. It would be impossible legally to use many of the machines which are commonly used, and undoubtedly it would be extremely difficult to carry out many practices regarding tools that are at present encouraged in order to promote safety among the workers. I thought it right and proper that I should announce that advice to the House without seeking to refer to the legal arguments.
My right hon. Friend realises that from the practical and the legal aspect there is a problem here. He is discussing it with the interested organisations, the Trades Union Congress has discussed it, and he intends to introduce regulations—despite the aspersions made by the hon. Member for Derby, North—to deal with many of these matters. The technical view at present is that this is the right and proper way to deal with the problem, rather than by the imposition of absolute requirements as is suggested by the Amendments.
§ Mr. Bence
This is an important Amendment and those hon. Members who have experience of working in factories will know the serious problem which exists. At the end of the First World War, when I was a boy, there was a machine used in factories, a surface grinder manufactured by Bradshaw. It had a magnetised base which revolved round a central spindle and underneath was a segment of carborundum stone. The machine was completely fenced round so that if the current failed, and the piece of steel being machined whipped off, it would crash against the guard and no one would be injured. I have seen huge dents in the guard caused by a piece of steel hitting it. That machine went out of date. It was a poor job and not sufficiently precise. It was invented long before the passing of the 534 Factories Acts. We then had the Churchill and the Snow surface grinders. These incorporated the magnetic principle with a circular carborundum stone, but no guard.
I have seen a piece of die steel, a heavy piece of metal, travel 40 yards from the machine, when the current failed, with sufficient force to crush a man's head. I have seen a man badly injured in that way. There was no protection on the machine for the reason which was explained by my hon. Friend the Member for Derby, North (Mr. MacDermot). We sometimes make derogatory remarks about lawyers, but if all lawyers were as lucid as my hon. Friend I should never criticise members of his profession again. I consider that he gave a lucid exposition of an industrial problem which has existed for many years.
The Parliamentary Secretary said he had been told that this is a difficult technical problem, and it is. My hon. Friend the Member for Derby, North made clear that he was not advocating that a machine should be surrounded by a protective device to stop any material from being ejected. He wishes to protect the operator from such material.
Many of my hon. Friends could quote experience with the universal grinder. Unfortunately a worker using a universal grinder and working to precision limits of perhaps a thousandth of an inch cannot use goggles. He has to grind to very fine dimensions and cannot be protected by the use of goggles because he must have a clear vision. I have done this work myself. I have rigged up something on the universal grinder in such a way that if stock was ejected it would ricochet away from me. That is a little commonsense. I happen to be an engineer and can fix little "Heath Robinson" things on to machines so that the material is ejected away from me.
If a worker in a factory can devise his own protection like that, the Parliamentary Secretary should not tell us that the technical brains of the country are incapable of doing what my hon. Friend wants them to do. Every worker in the factories would deem it a great advance if he could be protected from the stock of a machine being thrown out and it being liable to cause very serious injury to the operator, or to a person standing by who is not an operator. I therefore hope 535 that this Amendment will be accepted and, if not, that we shall vote for it.
§ Mr. Ellis Smith (Stoke-on-Trent, South)
I congratulate my hon. Friend the Member for Derby, North (Mr. MacDermot) on the reasoned case he has presented, which coincided with my practical knowledge of many years working in several of the largest industrial establishments in the country. From that work I gathered experience which confirmed the correctness of the case my hon. Friend has stated.
My hon. Friend stimulated my uneasiness. If it is correct that High Court judges have made such a pronouncement with regard to their interpretation of the 1937 Act, I am sorry that Parliament in those days was responsible for inserting a Section which worsened the protection of industrial workers. I accept my share of responsibility, because I played a big part in the Committee proceedings, but, of course, I am not a legal man. I had to accept the legal advice which was tendered to us. We thought that the Bill which became the 1937 Act was a step forward. I am very disappointed that the protection of our people has been worsened as a result of a High Court decision on a case which arose out of the administration of the Act.
This is very serious, and no one knows it better than the Minister. The Ministry of Labour has been responsible in the past few years for rendering great service to industry in general and to work people in particular. The Ministry has published very fine literature which has been reflected in trade union journals which are seen by work people. It puts the need to reduce accidents as a first priority. That lessens absenteeism and keeps work people in a better frame of mind. The good work done in that way will be undermined if these interpretations placed on these provisions find expression in factory legislation in future.
I understood my hon. Friend to say that the suggestion is sometimes made that the workers should wear goggles. Anyone who knows the men with whom I am associated would know that to suggest that they should wear goggles would be greeted with a smile. One cannot work to "thous" with the tools 536 they have to use while wearing goggles. They have to depend on the naked eye and, when the eye is no longer good enough, their earning capacity is affected. They not only need to be intellectually perfect, but physically perfect to be able to hold their own in industry. That is why the suggestion that they should wear goggles while working makes me smile. I hope that the Attorney-General will have regard to that.
As to the example given by my hon. Friend of a piece of material which flew away from a machine and protection not being given by the guard, I have worked in very large places where this has been fairly common. The workpeople could not have got on with their work unless they had some confidence in the guard. The reason that they went on working with complete confidence with machines operating behind them was because they had confidence that they were as well protected as they possibly could be, first, by the guard and, secondly, by the material being securely fastened. This is another example why the intention of the 1937 Act should be insisted upon in the future.
The instance that has been given with regard to material leaving a machine applies in the use of many other machines. I was working in one place where a huge fly-wheel came away with grave risk to a large number of people. Therefore, if this new interpretation is to be applied in the future it will have a very serious effect.
I welcome the undertaking given by the Parliamentary Secretary of the Minister's intention to consult representative organisations on this matter, and I hope that hon. Members on both sides of the House will give it their support. But it is not what an outside body says that matters. It should be for Parliament to decide. Parliament are the elected representatives of the people.
I do not take second place to anyone in regard to the need to have consultations with organised interests outside, but on an important legal matter like this affecting the people of our country it is the responsibility of Parliament to decide what should be inserted in the Bill, so that when the Bill becomes an Act of Parliament it can be administered in the way that Parliament intended. It does not 537 matter what is in the regulations; it is what is in the Act that will tell, and I hope that the Attorney-General will have regard to these observations.
§ The Attorney-General (Sir John Hobson)
This is a very important Amendment which has aroused a great deal of interest on both sides of the House. The only question that we are debating is whether it is better to deal with a problem, which everybody admits exists, by general legislation or by passing regulations to deal with it in the future. This is the choice upon which I wish to address the House. My right hon. Friend concedes that there are large numbers of accidents and something has to be done in respect of them, and the only question is which is the best method of dealing with the problem.
I congratulate the hon. Member for Derby, North (Mr. MacDermot) on his excellent exposition of the law, but every problem that arises presents a question of fact as well. He did not really address his mind to the result of passing an Amendment such as he proposes on the ordinary day-to-day administration of the law and the day-to-day problems that would confront the courts, the employers and the advisers of the employees. It is not merely a question of civil damages. The criminal law is involved.
§ It being Ten o'clock, the debate stood adjourned.
§ Proceedings on Government Business exempted, at this day's Sitting, from the provisions of Standing Order No. 1 (Sittings of the House).—[Mr. Hare.]
§ Question again proposed, That those words be there inserted in the Bill.
§ The Attorney-General
I was saying that if one is to impose what will be an absolute liability on all employers involving a criminal liability for its breach it is very important to make certain that this is a feasible and sensible way to proceed.
The question whether a particular machine or any part of it is dangerous in the event of contact—which is the present position which the law must examine—is one fairly easy to answer and identify. The risks can be fairly guarded against and identified by looking at a machine and saying that it is perfectly obvious that if a workman came into contact with that part of the machine it would be 538 dangerous and, therefore, it should be fenced. It is also easy to devise fences which will keep a workman from getting into contact with the dangerous part of the machine.
But ejection can take place in any direction and it is, I submit, difficult indeed to identify either the machine or the part of it which is liable and can foreseeably be said to be dangerous in the event of an ejection. It is true that many machines—abrasive wheels and others—are known to be dangerous, but there are a great number of other machines which would be absolutely marginal and about which the danger of an ejection might well depend on the type of material being used. It might be a machine which would not eject at all if a certain material was used while it might contain a risk to a workman if some other sort of material was being worked.
With the added difficulty that the ejection is liable to take place in any direction, one would be placing on the employer a liability to provide all round fencing in every direction to prevent ejection in every direction if he had to fulfil the absolute liability which the hon. Member proposes should be placed on him. The Minister proposes to deal with abrasive wheels and woodworking machinery by Regulations and to amend the Protection of Eye Regulations. It is expected that these new Regulations will be laid during the course of this year.
How many other machines are there for which goggles will be insufficient? The hon. Member for Stoke-on-Trent, South (Mr. Ellis Smith) said that goggles were no answer, but they are, of course, part of the proposals of the hon. Member for Derby, North in those cases where there is a risk of injury to the eye. That is a sensible provision and can be dealt with adequately by the Protection of Eye Regulations.
Leaving out the eye cases, abrasive wheels and wood-working machinery, can anyone say with certainty that one can identify every other type of machine throughout the range of industry and say with reasonable certainty "This is a machine which is dangerous and should be fenced"? Or is it better, in the residium of cases other than those which will be covered by the regulations I have mentioned, to leave it to the Ministry of Labour to apply safety regulations?
539 I was grateful for what the hon. Member for Stoke-on-Trent, South said about the care which is taken by the Department over which my right hon. Friend presides and its anxiety to see that there are safety regulations. This is a question of balance, because there is no doubt that if one were to have an absolute requirement to provide protection against the risk of ejection, then certain machines would become almost unworkable; whereas by regulations it would be possible to provide a protection which would be reasonably safe, satisfactory and sufficient even though it was not an absolute protection of the kind proposed by the Amendment.
It is upon these grounds that I suggest to the House that it is better to proceed upon the basis that the regulation-making power is the correct way to deal with this problem, and, if necessary, to see that the Ministry of Labour makes the necessary regulations from time to time. But even if the House takes that view on this Clause, it does not mean that my right hon. Friend would come to that final conclusion. He is, as has been said already, inclined at the moment to advise the House that the right way to proceed is by making regulations to deal with those cases where it becomes obvious that there is a risk of ejection and where a suitable and sensible guard can be provided. My right hon. Friend is already in touch with both sides of industry. This is a very difficult problem and I suggest that it would be wrong to rush in at this stage when the consultations between either and both sides of industry have not been completed.
As the hon. Member for Derby, North rightly said, the real problem lies with the Factories Acts, and there is no doubt that if it was decided as a result of the consultations that general legislation was the right solution it would be easy to provide a Ten-Minute Bill to amend the Factories Acts. Moreover, there would not be the slightest difficulty in adding an amendment dealing with this Bill also particularly if it is passed in the form of the relevant section of the Factories Acts. I therefore suggest that the matter be left as it is in the Bill. The real problem, as I have said, arises with the Factories Act and my right hon. Friend is dealing with this both with the T.U.C. and the 540 employers. In the circumstances, I respectfully suggest that we should not pass the Amendment.
§ Mr. Prentice
I do not want to detain the House, but I am sure that all of us would like to pay tribute to my hon. Friend the Member for Derby, North (Mr. MacDermot) on the case which he deployed on this very important matter. He deployed it equally strongly in Committee as long ago as 18th December. On that occasion we were not satisfied with the Government's reply, but we thought that with some months to think about it they might come forward with something more attractive than in fact they have done this evening.
The Parliamentary Secretary said that the technical advice he had received indicated that this proposal would not be practicable. He did not deploy his advice or give chapter and verse why it is not practicable. The Attorney-General has told us that the question before us is whether we should deal with this unsatisfactory situation by general provision or by regulations. Our position on this side of the House is that we want the general provision to be as comprehensive as possible but we want the regulations as well.
It is not a satisfactory situation when we have gaps in the law, and my hon. Friend the Member for Derby, North has indicated a gap which has existed since the Nicholls v. Austin case in 1926. What the Attorney-General has said does not meet our requirements in a matter as important as this. He told us that this was essentially a problem of the Factories Acts rather than of the Bill. If that were so, we would have been more convinced if he had told us that he had proposals to amend the Factories Acts or if he had indicated, in response to my hon. Friend, that if any of us sought leave to introduce an amendment under the Ten-Minute Bill procedure we should have Government support. We have had no such indication. I hope therefore that my hon. Friends will agree to divide the House.
§ Mr. MacDermot
My hon. Friend the Member for East Ham, North (Mr. Prentice) has made most of the points which I had intended to make in reply. I would only note that firstly the Parliamentary Secretary brought forward the argument that there would be cases where 541 it would not be practicable to carry out this absolute duty. Everyone knows that the same thing applies under the Factories Acts and under Clause 15 of the Bill as it stands. Clause 15 (1) imposes a duty which, apart from the exceptions with which the Amendment deals, is absolute. In some cases that is not practical to carry out. I will give an example. Take the example of the bacon slicing machine. We know that elaborate guards have been invented for bacon slicing machines which afford a high degree of protection. But it is still possible for an operator to cut herself on a guarded bacon slicing machine because somewhere the bacon has to come in contact with the blade which cuts the bacon, and the finger can do so as well.
If the Minister wants to, he can make regulations under this Bill in order, as with the Woodworking Regulations, to prescribe the kind of guard that a bacon slicing machine shall have. Until he does that, he is by this Bill imposing a requirement which is not practical. All I am saying is that the right approach is to impose an absolute duty and then to make exceptions by regulations.
The Attorney-General says, "Let us deal with it by regulations". He threw at me as an argument, "Are you able to tell me all the machines which could produce danger by throwing out articles, other than woodworking machines, machines which can be covered by regulations and abrasive wheels?"
§ Mr. Winterbottom
When my hon. Friend refers to the bacon machine, he should also bear in mind the bacon machine sharpener, the abrasive, which is probably the only thing which comes within the framework of the Amendment. That in itself can be dangerous to the eye which is covered by the regulations.
§ Mr. MacDermot
I am obliged to my hon. Friend for giving that practical instance of the sort of thing that I am aiming at.
§ The Attorney-General asks me if I can define the other machines which would require to be protected. No, I cannot. It is precisely because I cannot that I ask that an absolute duty should be imposed. Then it is up to the employer, if he says "You are trying to impose an impossible duty on me", to come, through his organisations, to the Ministry of Labour and to say, "Please make regulations which will make something practical". If it is done in the way which the Minister suggests, those machines will go on being used, ejecting material and causing injuries, and no legislation will result.
§ If the Government feel that this matter can be dealt with so satisfactorily by regulations, why have they not had regulations under the Factories Act? It is eight years since Nicholls v. Austin was decided and since that lady was injured. If the Government are so satisfied that they can deal with this matter by regulations, what have they been doing during the last eight years in not producing regulations? I have no confidence that we shall see regulations other than those which have been mentioned—some extension of the eye regulations, and eventually these grindstone regulations which have been grinding round for 14 years eventually seeing the light of day. But that will not cover all the risks with which we are concerned in these Amendments.
§ I am disappointed at the reply that we have had. I hope the House will show its views on this matter by dividing, and I hope also that the Government will yet again give thought to the matter and see if they cannot in another place put it straight.
§ Question put, That the proposed words be there inserted in the Bill:—
§ The House divided: Ayes 133. Noes 180.545
|Division No. 72.]||AYES||[10.14 p.m.|
|Awbery, Stan (Bristol Central)||Boardman, H.||Cronin, John|
|Barnett, Guy||Bowden, Rt. Hn. H. W.(Leics, S. W.)||Crosland, Anthony|
|Beaney Alan||Bowen, Roderic (Cardigan)||Cullen, Mrs. Alice|
|Bence, Cyril||Braddock, Mrs. E. M.||Dalyell, Tam|
|Bennett, J. (Glasgow, Bridgeton)||Brown, Thomas (Ince)||Davies, G. Elfed (Rhondda, E.)|
|Benson, Sir George||Butler, Mrs. Joyce (Wood Green)||Davies, S. O. (Merthyr)|
|Blackburn, F.||Castle, Mrs. Barbara||Delargy, Hugh|
|Blyton, William||Craddock, George (Bradford, S.)||Dempsey, James|
|Diamond, John||Jones, Dan (Burnley)||Redhead, E. C.|
|Dodds, Norman||Jones, Elwyn (West Ham, S.)||Roberts, Goronwy (Caernarvon)|
|Edwards, Rt. Hon. Ness (Caerphilly)||Jones, J. Idwal (Wrexham)||Robertson, John (Paisley)|
|Edwards, Robert (Bilston)||Jones, T. W. (Merioneth)||Rodgers, W. T. (Stockton)|
|Finch, Harold||Kelley, Richard||Ross, William|
|Fitch, Alan||King, Dr. Horace||Short, Edward|
|Fletcher, Eric||Lawson, George||Silverman, Julius (Aston)|
|Foot, Dingle (Ipswich)||Lee, Frederick (Newton)||Silverman, Sydney (Nelson)|
|Forman, J. C.||Lever, L. M. (Ardwick)||Slater, Mrs. Harriet (Stoke, N.)|
|Gordon Walker, Rt. Hon. P. C.||Lubbock, Eric||Slater, Joseph (Sedgefield)|
|Gourlay, Harry||Mabon, Dr. J. Dickson||Small, William|
|Griffiths, David (Rother Valley)||McCann, John||Smith, Ellis (Stoke, S.)|
|Griffiths, W. (Exchange)||MacDermot, Niall||Soskice, Rt. Hon. Sir Frank|
|Grimond, Rt. Hon. J.||McInnes, James||Spriggs, Leslie|
|Gunter, Ray||McKay, John (Wallsend)||Steele, Thomas|
|Hale, Leslie (Oldham, W.)||MacPherson, Malcolm (Stirling)||Stewart, Michael (Fulham)|
|Hamilton, William (West Fife)||Mallalieu, J.P.W. (Huddersfield, E.)||Swingier, Stephen|
|Hannan, William||Manuel, Archie||Taverne, D.|
|Harper, Joseph||Mapp, Charles||Taylor, Bernard (Mansfield)|
|Hart, Mrs. Judith||Marsh, Richard||Thompson, Dr. Alan (Dunfermline)|
|Hayman, F. H.||Mason, Roy||Thornton, Ernest|
|Henderson, Rt. Hn. Arthur (Rwly Regis)||Mendelson, J. J.||Wade, Donald|
|Hilton, A. V.||Millan, Bruce||Wainwright, Edwin|
|Holman, Percy||Milne, Edward||Warbey, William|
|Holt, Arthur||Mitchison, G. R.||Watkins, Tudor|
|Hooson, H. E.||Mulley, Frederick||Whitlock, William|
|Houghton, Douglas||Neal, Harold||Wilkins, W. A.|
|Howell, Charles A. (Perry Barr)||Noel-Baker, Francis (Swindon)||Williams, D. J. (Neath)|
|Hughes, Cledwyn (Anglesey)||Oram, A. E.||Williams, LI. (Abertillery)|
|Hughes, Emrys (S. Ayrshire)||Oswald, Thomas||Williams, W. R. (Openshaw)|
|Hunter A. E.||Padley, W. E.||Willis, E. G. (Edinburgh, E.)|
|Hynd, H. (Accrington)||Parker, John||Winterbottom, R. E.|
|Hynd, John (Attercliffe)||Pearson, Arthur (Pontypridd)||Woodburn, Rt. Hon. A.|
|Jay, Rt. Hon. Douglas||Pentland, Norman||Woof, Robert|
|Jeger, George||Popplewell, Ernest||Yates, Victor (Ladywood)|
|Johnson, Carol (Lewisham, S.)||Prentice, R. E.|
|Jones, Rt. Hn. A. Creech (Wakefield)||Rankin, John||TELLERS FOR THE AYES:|
|Dr. Broughton and Mr. Grey.|
|Agnew, Sir Peter||Errington, Sir Eric||Jenkins, Robert (Dulwich)|
|Allason, James||Farr, John||Johnson, Dr. Donald (Carlisle)|
|Awdry, Daniel (Chippenham)||Finlay, Graeme||Johnson, Eric (Blackley)|
|Barlow, Sir John||Fisher, Nigel||Johnson Smith, Geoffrey|
|Batsford, Brian||Fraser, Ian (Plymouth, Sutton)||Jones, Arthur (Northants, S.)|
|Berkeley, Humphry||Galbraith, Hon. T. G. D.||Kerans, Cdr. J. S.|
|Biffen, John||Gammans, Lady||Kershaw, Anthony|
|Biggs-Davison, John||George, J. C. (Pollok)||Kirk, Peter|
|Bingham, R. M.||Gibson-Watt, David||Kitson, Timothy|
|Bishop, F. P.||Gilmour, Ian (Norfolk Central)||Leather, Sir Edwin|
|Bcssom, Clive||Gilmour, Sir John (East Fife)||Lewis, Kenneth (Rutland)|
|Bourk[...]e-A[...]rton, A.||Goodhart, Philip||Lilley, F. J. P.|
|Box, Donald||Goodhew, Victor||Lindsay, Sir Martin|
|Braine, Bernard||Gower, Raymond||Litchfield, Capt. John|
|Brewis, John||Grant-Ferris, R.||Longden, Gilbert|
|Brown, Alan (Tottenham)||Green, Alan||Loveys, Walter H.|
|Buck, Antony||Gresham Cooke, R.||Lucas-Tooth, Sir Hugh|
|Bullard, Denys||Grosvenor, Lt. Col. R. G.||MacArthur, Ian|
|Campbell, Gordon (Moray & Nairn)||Gurden, Harold||McLaughlin, Mrs. Patricia|
|Carr, Compton (Barons Court)||Hall, John (Wycombe)||Macleod, Rt. Hn. Iain (Enfield, W.)|
|Carr, Robert (Mitcham)||Hamilton, Michael (Wellingborough)||Maddan, Martin|
|Chichester-Clark, R.||Hare, Rt. Hon. John||Maitland, Sir John|
|Clark, Henry (Antrim, N.)||Harris, Reader (Heston)||Markham, Major Sir Frank|
|Clark, William (Nottingham, S.)||Harrison, Col. Sir Harwood (Eye)||Marten, Neil|
|Cleaver, Leonard||Harvey, Sir Arthur Vere (Macclesf'd)||Mathew, Robert (Honiton)|
|Cole, Norman||Harvey, John (Walthamstow, E.)||Matthews, Gordon (Merlden)|
|Cooke, Robert||Harvie Anderson, Miss||Maxwell-Hyslop, R. J.|
|Cordeaux, Lt.-Col. J. K.||Hastings, Stephen||Maydon, Lt. -Cmdr. S. L. C.|
|Corfield, F. V.||Hendry, Forbes||Mills, Stratton|
|Coulson, Michael||Hill, Mrs. Eveline (Wythenshawe)||Miscampbell, Norman|
|Courtney, Cd[...]-Anthony||Hirst, Geoffrey||Montgomery, Fergus|
|Craddock Sir Beresford||Hobson, Sir John||More, Jasper (Ludlow)|
|Critchley, Julian||Hocking, Philip N.||Morgan, William|
|Curran, Charles||Holland, Philip||Nabarro, Sir Gerald|
|Currie, G. B. H.||Hollingworth, John||Neave, Airey|
|Dalkeith, Earl of||Hopkins, Alan||Noble, Rt. Hon. Michael|
|Dance, James||Hornby, R. P.||Oakshott, Sir Hendrie|
|d'Avigdor-Goldsmid, Sir Henry||Howard, John (Southampton, Test)||Osborn, John (Hallam)|
|Deedes, Rt. Hon. W. F.||Hughes-Young, Michael||Osborne, Sir Cyril (Louth)|
|du Cann, Edward||Hutchison, Michael Clark||Page, Graham (Crosby)|
|Duncan, Sir James||Iremonger, T. L.||Partridge, E.|
|Elliot, Capt. Walter (Carshalton)||Irvine, Bryant Godman (Rye)||Pearson, Frank (Clitheroe)|
|Elliott, R. W. (Nwcastle-upon-Tyne, N.)||James, David||Peel, John|
|Percival, Ian||Smith, Dudley (Br'ntf'd & Chiswick)||van Straubenzee, W. R.|
|Pickthorn, Sir Kenneth||Smithers, Peter||Wakefield, Sir Wavell|
|Pitt, Dame Edith||Smyth, Rt. Hon. Brig. Sir John||Walder, David|
|Pott, Percivall||Spearman, Sir Alexander||Walker, Peter|
|Prior, J. M. L.||Speir, Rupert||Wall, Patrick|
|Prior-Palmer, Brig. Sir Otho||Stevens, Geoffrey||Ward, Dame Irene|
|Pym, Francis||Storey, Sir Samuel||Webster, David|
|Rawlinson, Sir Peter||Studholme, Sir Henry||Wells, John (Maidstone)|
|Redmayne, Rt. Hon. Martin||Taylor, Edwin (Bolton, E.)||Whitelaw, William|
|Rees, Hugh||Taylor, Frank (M'ch'st'r, Moss Side)||Williams, Dudley (Exeter)|
|Renton, Rt. Hon. David||Teeling, Sir William||Wills, Sir Gerald (Bridgwater)|
|Ridley, Hon. Nicholas||Temple, John M.||Wilson, Geoffrey (Truro)|
|Ridsdale, Julian||Thomas, Sir Leslie (Canterbury)||Wise, A. R.|
|Rodgers, John (Sevenoaks)||Thompson, Sir Kenneth (Walton)||Woollam, John|
|Ropner, Col. Sir Leonard||Thornton-Kemsley, Sir Colin||Worsfey, Marcus|
|St. Clair, M.||Touche, Rt. Hon. Sir Gordon|
|Seymour, Leslie||Turner, Colin||TELLERS FOR THE NOES:|
|Sharples, Richard||Tweedsmuir, Lady||Mr. J. E. B. Hill and|
§ Mr. Whitelaw
I beg to move, in page 9, line 27, to leave out from "necessary" to the end of line 28.
The Amendment in page 9, line 28, at end insert:(5) Subsection (3) of this section and so much of subsection (4) thereof as relates to the exception from the requirement thereby imposed shall only apply where the examination, lubrication or adjustment in question is carried out by such persons who have attained the age of eighteen as may be specified in regulations made by the Minister and all such other conditions as may be so specified are complied with.and the Amendment to the proposed Amendment standing in the name of the hon. Member for East Ham, North (Mr. Prentice) after "such" to insert "male", are associated with this one. Would it be convenient to discuss them at the same time?
§ Mr. Whitelaw
In Commitee, the hon. Member for Derby, North (Mr. MacDermot) moved an Amendment seeking to add at the end of subsection (3) a provision similar to that in Section 15 (2) of the Factories Act. This would have had the effect of restricting the examination and any necessary oiling and adjustment of unfenced machinery in motion to men over 18 years of age. We had an interesting discussion in Committee, and I argued that we would not be able to go as far as to prevent the work from being carried out by women of 18 years and over because in a number of premises—and this is unlikely to occur in factories—there will be no male employee to whom the employer can turn. I agreed, however, that we should prevent young persons from undertaking these tasks on unfenced moving machinery. That is the purpose of the two Amendments.
The House will note that the new subsection (5) applies to both subsections (3) and (4) and that when the regulations are made, my right hon. Friend could, if the circumstances warrant it, require that certain operations might be done only by men. We have, therefore, moved even slightly further than might at first sight appear towards the arguments that were put forward.
There are good reasons for resisting the Amendment to the proposed Amendment which would prevent this task being carried out by women. In Committee, we 548 did not have the benefit of any women Members of the House and we do not have the benefit of any women Members on the benches opposite at the moment. I know, however, that women are, on the whole, reluctant nowadays to see restrictive legislation proposed for them. Their argument is that they are perfectly as capable as men of doing the many tasks which men carry out. Therefore, they would not be too happy at the idea of the somewhat restrictive attitude adopted in the Amendment to the proposed Amendment.
In particular I would draw the House's attention to the fact that there may be shops in which there are no male employees, and also the fact that in this day and age women should surely be considered, and certainly consider themselves, capable of carrying out the tasks which men do. These are good reasons for not agreeing to the Amendment to the proposed Amendment. I equally hope that the distance which we have moved in our Amendments in lines 27 and 28 will commend itself to hon. Members who pressed the matter in Standing Committee.
§ Mr. MacDermot
Before adducing arguments in support of our Amendment to the proposed Amendment, I should like to make clear that we strongly welcome the Government's Amendment. It goes a long way to meeting a point which we argued in Committee.
The Government have now agreed to write into the Bill the same provision as exists in the Factories Act that where it is necessary for machinery to be examined or adjusted with a guard off while it is in motion—something which could be highly dangerous—it shall be done only by people who not merely are qualified to do it, but whose qualification to do it has been recognised by the issue of a special written certificate authorising them to do it. The Government's Amendments write this requirement into the Bill. In view of that, clearly there is less need for us to press our Amendment for the protection of women: that is to say, to make a prohibition on this work being done by women.
I should be surprised if the Parliamentary Secretary's attempt to arouse the feelings of loyalty of the ladies to their sex will greatly help with the Amendment. When it comes to protection, ladies do 549 not resent Parliament or anybody else affording them special protection. The fact is that, generally speaking, women are not equipped or qualified to do this sort of work. If, on the other hand, through the certification procedure, it will be ensured that certificates are given only to people who are properly trained and qualified, I concede that our arguments are not so strong for saying that there should be an absolute prohibition on women.
I ask the Parliamentary Secretary to explain—to dot the t's and cross the t's, as it were—and assure us that the pattern of the certification procedure under the Bill is proposed to follow that of the Factories Act. If we get that assurance, perhaps my hon. Friends will not feel it necessary to press our Amendment to a Division.
§ Amendment agreed to.
Further Amendment made: In page 9, line 28, at the end insert:
(5) Subsection (3) of this section and so much of subsection (4) thereof as relates to the exception from the requirement thereby imposed shall only apply where the examination, lubrication or adjustment in question is carried out by such persons who have attained the age of eighteen as may be specified in regulations made by the Minister and all such other conditions as may be so specified are complied with.—[Mr. Whitelaw.]