§ Mr. David MitchellI beg to move Amendment No. 18, in page 2, line 4, leave out subsection (1) and insert:
(1) For the purposes of this Act the term employee' means an individual who has entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise whether such contract is expressed or implied oral or in writing.My reason for putting this wording forward rather than that which is in the Bill is that there is considerable ambiguity in the Clause as it stands. The sponsor and the Government have expressed the desire to cause as little disturbance as possible to existing policies. 1791 The Minister expressed the desire to avoid disturbance to existing arrangements over marine insurance. I would draw the attention of the sponsor to the standard clause which occurs in most employers' insurance liability policies. I have a copy in my hand, which says:Now this policy witnesseth that if any person under a contract of service of apprenticeship with the Insured (hereinafter called "an employee") shall, while employed in, or temporarily outside Great Britain, Northern Ireland or the Isle of Man or the Channel Islands, sustain bodily injury or disease caused during the Period of Insurance and arising out of and in the course of his employment by the insured in the Business …The terminology here seems to be sufficiently different from that in the Bill as to cause embarrassment and the need for rewriting of policies, which it must be desirable to avoid.Quite apart from that, there is considerable doubt which persons are covered, or are to be covered, as things now stand. There are two aspects. First, I would like clarification from the Minister as to who will be covered. It has been made clear that the self-employed window cleaner that you, Mr. Deputy Speaker, or I or my wife employs to clean our windows, will not be covered. There is no liability laid upon me or my wife when employing such a person to have a policy. This is because the window-cleaner is self-employed.
What about the jobbing gardener, or the boy scout doing a "bob a job"? Is there a liability here? What about the household help? What about the Member of Parliament's secretary? Is there a liability in relation to these personal types of services which so often people incur? Supposing a load of firewood or coal has been dumped at the front of my house instead of in the coal bin at the rear. Someone is employed to barrow it round. Under the terms of this Bill is there a liability imposed upon me to take out an insurance policy, and if I do not do so, shall I be subject to the various penalties laid down?
There is a great deal of casual labour. On which side of the fence will they fall? There are the hop-pickers and the casual workers whom farmers employ to help with the hay-making. Supposing one of these falls on a pitch-fork or is otherwise injured. Has the farmer a liability laid 1792 upon him to cover that sort of casual labour? It would be unfortunate if the House passed a Bill rendering a number of people liable to severe penalties, yet failed to ensure that it was clearly understood by the N.F.U. and the multitude of ordinary people who pay for small services performed by people other than self-employed people. There is a considerable duty laid on the sponsor and the Minister to make clear what is the effect of the Bill in relation to these groups of people.
I have had the benefit of the advice of an eminent Queen's Counsel upon this matter. Mr. Marven Everett has looked into this question, as the Clause now stands, and he gives it as his opinion that "employee" is a very wide word. He says that "employee":
… is not, in my opinion, limited to those who are employed under a contract of service or apprenticeship. I employ my solicitor, I employ my accountant, but neither of them works under a contract of service. They work under a contract for services …In my opinion the framework of the existing draft subsection is consistent with the first part of the subsection being of general application and applying not only to contracts of service or apprenticeship but to contracts to perform services generally",such as the accountant, etc., which I have described.He says that the subsection as drafted is at least ambiguous. I do not think that the House would wish to pass into law something which, even before it reaches the Statute Book, lawyers are telling us is ambiguous. I am sure that the sponsor would be anxious to ensure that there is nothing in this Bill about which lawyers are already arguing. It is bad enough when we pass legislation which we think is watertight but which the lawyers thereafter discover is not. There then follows endless litigation. Here, before it becomes law, it is potentially ambiguous.
I hope that the sponsor of the Bill will accept the Amendment. I urge upon him, or upon the Minister, that we must have a clear idea of who is and who is not to cover employees under the Bill in relation to personal services and casual labour.
§ Mr. David WatkinsThe hon. Member for Basingstoke (Mr. David Mitchell) has lucidly and eloquently laid before the House not only the general principle about which he is concerned, but also 1793 some specific cases which he feels arise from it. I am not anxious to play any part in enacting legislation which is the subject of dispute even before it becomes an Act of Parliament. As the hon. Gentleman said, even when we enact what we consider to be crystal clear legislation, it can, nevertheless, often be the subject of considerable argument in the courts.
I have given considerable thought to this matter and had consultations about it. I should like to put the hon. Gentleman's mind at rest straight away by saying that I accept the Amendment and recommend the House to accept it. It gives a simplified form of the wording already in the Bill. I accept the criticism that, as at present worded, certain areas are in doubt which could be the subject of argument. If we can eliminate that state of affairs, it seems highly desirable that we should do so.
Concerning the more specific point about who is and who is not covered, this, as the hon. Gentleman will recollect, was debated at length in Committee. We were in some difficulty about precisely defining in an Act the word "employee". I think that my hon. Friend the Under-Secretary of State has taken some advice on this and may have something to say about the specific point, should he catch your eye, Mr. Deputy Speaker.
I remember the discussion that we had in Committee about the window cleaner. As originally drafted, if a window cleaner falls off his ladder and broke his neck the unfortunate householder or tenant was liable, so we amended the Bill with the specific purpose of avoiding that situation.
I accept the Amendment and I hope, in due course, that the House will accept it.
§ Mr. PentlandI intervene briefly to assure the hon. Member for Basingstoke (Mr. David Mitchell) on certain points which he has raised. He will know that we went into this question at great length in Committee. We can visualise many aspects applicable to the Bill if we depart from the straight and narrow path of its intentions. The hon. Gentleman referred to odd jobs—boy scouts, window cleaners, and so forth. They are not working for an employer under a contract of service.
§ Mr. David MitchellThey are not?
§ Mr. PentlandThey are not working for an employer under a contract of service and they are not carrying on a business. Therefore, the hon. Gentleman should be satisfied on that point.
As my hon. Friend has said, we are prepared to accept the Amendment.
§ Mr. David MitchellI am a little uneasy, because the Minister has just said that the people to whom I drew attention are not carrying on a business. Do I take it that all those who are not carrying on a business are not covered?
§ 2.15 p.m.
§ Mr. PentlandCertainly. I repeat that this is my hon. Friend's Bill. However, I thought that the real intention was to cover people who were employed under a contract of service. If someone's Aunt Sarah hurt her toe or has an accident doing something for the next door neigh-hour, it brings it to a ridiculous stage. I am saying that the people to whom the hon. Gentleman referred are not working for an employer under a contract of service, nor are they employed in the employer's business.
The hon. Gentleman will recall that in Committee we pointed out that a Member of Parliament does not employ people in the business of being a Member of Parliament. I hope that the hon. Gentleman will accept that.
§ Mr. David Waddington (Nelson and Colne)The wording of the Bill is:
For the purpose of this Act the term employee' means an individual who has entered into or works under a contract with an employer".Does the Minister agree that if those words stood alone they would cover many people who, under the present law, are self-employed?
§ Mr. PentlandI do not know. This is a technical legal aspect of the Bill. We could become involved in arguing about the technicalities at great length. For the purpose of the Bill, they must be working under a contract of service. But, to be as helpful as possible, we are accepting the Amendment.
§ Mr. David WatkinsThe point made by the hon. Member for Nelson and Colne (Mr. Waddington) is valid if the words stand alone. But the point is that they do not. They are further qualified.
§ Mr. David MitchellI think that we may have to return to this matter on Third Reading. The Minister, on behalf of his Department, has accepted responsibility for the Bill. He said just now, in response to my inquiry—
§ Mr. PentlandI have never accepted responsibility for the Bill, as the hon. Gentleman knows very well. Nor have the Government accepted responsibility. What I have said, on behalf of the Government, is that there are desirable principles embodied in the Bill and we are prepared to assist to make it a worthwhile and practical Measure.
§ Mr. WaddingtonI apologise for taking up the time of the House again. I appreciate that the sponsor of the Bill is accepting the Amendment, but I feel that the House should know where it is leading.
The point surely is that, as originally drafted the Bill would bring within its scope people who now are considered self-employed. Large issues are raised which were discussed at great length in Committee. At one time it seemed to be the aim of the sponsor to carry out far reaching reforms and to draw within the ambit of the Bill the majority of people who are considered self-employed.
The only point that we make is that the Bill, as originally drafted, almost certainly brought within its ambit the self-employed. I raise the matter now because many hon. Members on this side, and perhaps some hon. Gentlemen on the other side of the House, are anxious, through another Bill, to increase the liabilities which now rest on those who procure others to serve them as self-employed persons.
If we keep in the Bill,
the term ' employee' means an individual who has entered into or works under a contract with an employer",it involves and covers almost every self-employed person and raises very large issues.That is why we on this side of the House considered that acceptance of the Amendment by the sponsor was a matter of first importance.
§ Amendment agreed to.