WAR PENSIONS BILL.

HL Deb 11 August 1921 vol 43 cc456-69

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Peel.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Establishment of war pensions committees.

(3) A committee established by a scheme under this section shall consist of such number of members, not exceeding twenty-five, as may be specified in the scheme, and every such scheme shall provide for the inclusion, so far as practicable, in the committee of representatives of—

1. (a) disabled men who have been discharged from the naval, military, or air service of His Majesty during the present war: and
2. (b) women who are in receipt of pensions as the widows or dependants of men in the said naval, military, or air service who have died from causes arising out of service during the present war; and
3. (c) such of the local authorities whose districts are situate wholly or partly within the area for which the committee is established as are specified in the scheme; and
4. (d) employers and workmen in industry in equal numbers; and
5. (e) voluntary associations engaged in the care of ex-service men and their families in the area;

Provided that—

1. (i) the persons appointed as representatives of the persons mentioned in paragraphs (a) and (b) of this subsection shall together constitute not less than one fourth of the total membership of the committee, and the persons appointed as representatives of the persons mentioned in paragraphs (c), (d) and (e) respectively shall in each case constitute not less than one-fifth of the total membership of the committee, and where one fourth or one fifth of the total membership is not an integral number, the nearest integral number to one fourth or one fifth, as the case may be, shall be substituted therefor; and
2. (ii) not less than four members of the committee shall be women.

(4) Every scheme made for the establishment of1 a committee under this section shall provide for the appointment of the members of the committee by the Minister, and for the periods for which the members shall hold office, and the conditions under which they can be removed from office and on the first constitution of such a committee the Minister shall have regard to the desirability, subject to the provisions of this section, of selecting, so far as possible, for appointment to the committee, persons who are members of the existing committees in the area to which the scheme applies.

VISCOUNT PEEL

My Amendments on this Clause are drafting Amendments

Amendments moved— Page 3, line 16, after ("fifth") insert ("of the total membership"). Page 3,line 17, after (" and ") insert: (" (ii) where the number of the members to be appointed as representatives of the persons mentioned in paragraph (d) as ascertained in the manner aforesaid is not an even number, the number so ascertained shall be increased by one; and ")—(Viscoant Peel.)

On Question, Amendments agreed to.

TIER EARL OF DARTMOUTH moved, after subsection (4), to insert the following new subsection:— (5) A member of the staff of a committee, whether the committee is constituted under the War Pensions Acts, 1915 to 1920, or is established by a scheme under this section shall not be required by the Minister to be removed from the employment he holds under the Committee against the wish of the Committee without the Committee and the member of the staff concerned being given an opportunity of showing cause to the Minister why he should not he so removed.

The noble Earl said: My Lords, on the Second Reading of the Bill, I indicated that I had rather a personal grievance in this matter, and I have put down an Amendment which, if accepted, will, I hope, prevent a recurrence of an incident which came within my own experience. I do not wish in any way to interfere with the powers of the Minister, but I want to secure that where the Minister feels called upon to terminate the appointment of an official of the local committee, that appointment shall not be terminated, if the committee so desire, till after the official has had an opportunity of answering the charges made against him. I do not think that it is a very unreasonable request, because, although I am not going fully into my own particular case, there are one or two points which I think will explain how the difficulty arose.

We had, like other local committees, our secretary. The secretary was a man on whom we largely relied, and he had done very valuable service. He was a man on whose knowledge of the scheme of War Pensions I relied very completely. The first intimation which I had that there was any trouble was a request from the Minister to inform hint of the charges made against him. I was flabbergasted by the gravity of the charges which were made. Next, it was understood that under the Regulations the Minister has power to require the local committee to terminate an appointment within a fortnight, and I received a letter from the Minister requesting me to terminate the appointment. After what had passed I took the difference between "request" and"require"as the difference between"may"and"shall." I found afterwards that I was wrong, and I was accused of quibbling. Although there was no quibbling in the first instance, when I found that I was unable to get a hearing for the secretary by other means, I quibbled as much as I could. Subsequently, my general purposes committee had a meeting to go into the matter, and we were firmly convinced that the officer charged had not had a hearing, and we passed a resolution asking that nothing be done until he had had a hearing.

The next step was a meeting of the general committee to deal with the whole question, and I informed the Minister that this meeting was going to be held. He telegraphed to the Regional Director to be present. I was under the impression that the presence of that official meant that the secretary was going to have an opportunity of answering the charges made, but that again was not the case, and after I had made my statement, and the Regional Director had made his, the secretary asked that he might be allowed to put some questions to the Regional Director. That was absolutely refused, and. I was told by the Regional Director that he was only there for the purpose of telling me that I was acting unconstitutionally. It was unnecessary to tell me that, because I was acquainted then with the facts, and was acting with my eyes open. If charges are made and the termination of an appointment is requested within a fortnight, without giving the accused a hearing, it seemed to me so hard that I resigned my position as chairman as a protest. The object of my Amendment is simply to prevent any recurrence of such cases in the future, and to provide that if the Minister finds it necessary to terminate the appointment of any official of the local committee, if the committee so wish the official should have an opportunity of answering the charges that are made against him. I beg to move.

Amendment moved—

Page 3, line 30, at end insert the said new subsection (5).—(The Earl of Dartmouth.)

THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT PEEL)

My Lords, my noble friend, Lord Dartmouth, seems to have been labouring under some error as to the meaning of the word "request." I understood that when the word "request was used by a Minister it was usually equivalent to the word"require," although it was possibly an act of courtesy to express it in that way. It shows the danger of being too polite. I will not go into the full merits of the Amendment which he has put on the Paper, because it raises really a rather wide question as to whether a matter of that kind is really a matter for legislation and not one of administration, and whether it would not be rather unwise to give statutory rights of re-hearing to officials of a public authority.

I dare say my noble friend also will not think it necessary for me to go into the details of the precise case which he has mentioned. I could do so if it were necessary, but I do not think my noble friend requests or requires me to do so. I think that this new subsection is really unnecessary. It is put down, I think, under some misapprehension as to the nature of these new committees. The new committees, as I stated on the Second Reading, will be purely advisory and not executive. They will not have any staff of their own. If they require any staff to do any work that staff will be lent by the Ministry; that is to say, I suppose, by the Regional Director. The staff, therefore, will be entirely a Ministry staff. Therefore, no question arises as to the appointment or dismissal of the staffs of the local committees, because they will not have any. The subsection, therefore, as I think my noble friend will see, is really unnecessary, and deals with a state of things which will not arise.

THE EARL OF DARTMOUTH

I believe sonic of the local committees will be con- tinued, but if they are really advisory there is no reason for pressing the Amendment. I understand, however, that under the Bill there are a certain number of the old local committees who will continue in the same position as now.

VISCOUNT PEEL

Not with executive powers.

THE EARL OF DARTMOUTH

All their executive powers disappear?

VISCOUNT PEEL

They disappear.

THE EARL OF DARTMOUTH

Then all their officials disappear at the same time?

VISCOUNT PEEL

Yes.

THE EARL OF DARTMOUTH

I do not wish to press the Amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 (Functions of War Pensions Committees):

VISCOUNT PEEL

The small Amendments on Clause 2 are all drafting amendments.

Amendments moved— Page 4, line 10, leave out ("such committee") and insert (" the committee; and ") Page 4,line 14, leave out (" such committee ") and insert (" the committee; and ") Page 4,lines 37 to 39, leave out paragraph (h) Page 4,line 43, at end insert (" and (" (i) to perform such other duties in relation to pensions, and to any other matters, as the Minister may by regulation prescribe.")—(Viscount Peel.)

On Question, Amendments agreed to.

Clause 2, as amended, agreed to.

Clause 3 (Constitution of Central Advisor, Committee):

VISCOUNT PEEL

The Amendments to Clause 3 are also drafting.

Amendments moved— Page 5, line 4, leave out (" the ") and insert (" this ") Page 5,line 5, leave out (" appoint ") and insert (" constitute ") Page 5,lines 7 and 8, leave out (" the War Pensions Committees ") and insert (" any committees constituted under the War Pensions Acts, 1915 to 1920, or under this Act, and for the time being in existence ").—(Viscount Peel.)

On Question, Amendments agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Final awards.

4.—(1) Notwithstanding anything in any Warrant, Order in Council, or Order administered by the Minister, the Minister may, subject to the approval of the Treasury, make regulations providing for the making of final awards in the case of any officers or men to Whom pensions in respect of disablement due to causes arising out of service during the present war have been granted or who claim such pensions, and prescribing the principles on which any such awards are to be made and the classes of pension to which this section is to apply.

(2) The case of every such officer and man as aforesaid shall, with a view to making a final award, be taken into consideration not later than four years after his discharge from the service or after the first award of a pension to him, as may be prescribed by regulations made under this section.

(3) If any person in whose case a final award has been made under this section is dissatisfied with the award, he may, at any time within one year from the date on which notice of the making of the award is given to him, appeal to a Pensions Appeal Tribunal established under section eight of the Act of 1919, and the Tribunal shall, if they are of opinion that, having regard to all the circumstances of the case, the final award ought not to have been made or that the proper amount has not been awarded, as the case may be, either set aside the award or increase or decrease the amount thereof as they think proper, and shall in any other case disallow the appeal:

Provided that—

1. (a) a Pensions Appeal Tribunal in exercising their powers in relation to appeals under this section shall have regard to the provisions of any regulations made under this section; and
2. (b) for the purpose of hearing appeals under this section the constitution of the Tribunal shall be modified by the substitution for the legal representative of a second medical practitioner having such qualifications as may be prescribed by regulations made under the Schedule to the Act of 1919, and that schedule shall have effect accordingly, and regulations may be made under that schedule with respect to appeals under this section.

The Minister shall in such manner as may be prescribed by regulations made by him under this section bring the provisions of this subsection to the notice of persons having a right of appeal thereunder.

(4) Where a grant of a permanent pension or of a gratuity or a final weekly allowance or an award (other than the grant of a conditional pension) has been made before the commencement of this Act, the grant or award shall for the purposes of this section be treated as a final award made thereunder, and this section shall apply accordingly with the substitution of one year from such date (not. being earlier than the commencement of this Act) as may be fixed for the purposes of this subsection by regulations made under this section for one year from the date of notice of the award.

VISCOUNT PEEL

The next Amendments are also drafting.

Amendments moved— Page 5, line 22, leave out (" then ") and insert (" than ") Page 5,lines 34 and 35, leave out (" has not been awarded ") and insert (" of pension or proper rate of disablement was not fixed by the award") Page 5,line 36, leave out (" thereof ") and insert (" or rate so fixed ")—(Viscount Peel.)

On Question, Amendments agreed to.

THE MARQUESS OF SALISBURY

, on behalf of LORD HABRIS, moved to omit all words in subsection (3) proviso (b), except"regulations may be made under that schedule with respect to appeals under this section." The noble Marquess said: I am moving the Amendments which stand in the name of my noble friend, Lord Harris, at his request, as he is unable to be present. This is a matter to which my noble friend referred on the Second Reading. The subsection proposes that the existing Appeal Tribunal, which now consists of a lawyer, a doctor, and an ex-Service man, should be varied by the elimination of the lawyer and his replacement by another doctor; in other words, that there should be two doctors and an ex-Service man. My noble friend's Amendment seeks to restore the lawyer and eliminate one doctor; that is, to restore the present position.

I confess I think it unwise to get rid of the lawyer from the tribunal. After all, there are Regulations to be interpreted, and there is evidence to be taken. It was rather suggested on the Second Reading that there would be no point really in issue except a medical point. I think that will be found not to be the case. There are to be Regulations. With what sort of things will these Regulations deal? A case was mentioned to me the other day of a man who was wounded, and has been disabled in consequence of his wound. His disability is at this moment compensated to the extent of eight shillings a day. Supposing that question comes up for review and it has to be determined what this disability really comes to, that is not merely a medical question, it is a question of which a doctor is not the nest judge. No doubt the doctor is the best judge of the physical condition of the man but the question of what he can earn, of what in his enfeebled state he is capable of doing, is not a doctor's matter, surely. It is a matter of general evidence, and one upon which it would be extremely valuable to have the trained mind of a lawyer to judge the evidence. I do not say that you do not want a doctor. Of course, you do, but let the Committee remember that under the Amendment we retain a doctor. The question is whether there should be two doctors and no lawyer. It is not merely a question of the earning capacity of the man, for much depends upon a number of considerations—for example, his position in life, the circumstances of the place where he lives, the kind of trade which is available—and these are not doctors' questions at all, but general questions.

Further, a body of procedure will grow up in the practice of these Tribunals. Certain decisions to which the Tribunals will come will govern their future decisions. Therefore, the form in winch they are drawn, the limits to which the words shall go—all difficult matters of that sort are things with which a lawyer is infinitely better qualified to deal than a doctor. I want to speak with the greatest possible respect of doctors, for I owe a great deal to them personally, and I dare say many of your Lordships do. But they are not always men of very clear judgment in matters which do not appertain precisely to scientific subjects, and even on scientific subjects they occasionally get a strong view which they ride almost to death. Your Lordships know the history of the Lunacy Law. That is exactly what happened. It was found that to trust doctors alone was not safe, and under the recent Lunacy Acts a magistrate's order has been substituted for the absolute power which the doctors enjoyed before, for the very reason that it was not safe to trust the doctors to give a perfectly reasonable and fair decision upon matters of difficulty of this kind.

I have some little experience of tribunal work—a different kind of tribunal, I know, but tribunals in connection with the Military Service Acts during the war—and I say with confidence that the presence of lawyers on the Central Tribunal was absolutely essential in order to make it work properly. I do not know what I should have done if I had not had two first-rate lawyers as my colleagues. I feel quite sure that the Government would be entirely safe if they allowed the lawyer to remain. It would create public confidence, and that is the great thing. You want people to believe that the Tribunal is quite fair, and I am sure they will trust a Tribunal which has a lawyer on it more than they will trust a Tribunal which is mainly manned by doctors.

Amendment moved— Page 6, line 1, leave out from the beginning of line 1 to ("regulations") in line 8.—(The Marquess of Salisbury.)

VISCOUNT PEEL

I thought I was familiar with most of the views of the noble Marquess, but I did not know what a strong passion he was going to develop for lawyers, or how certain he was that the presence of a lawyer—of any lawyer, apparently—on a committee—

THE MARQUESS OF SALISBURY

On a Tribunal.

VISCOUNT PEEL

—gave such confidence o the public.

THE MARQUESS OF SALISBURY

Not on a committee but a Tribunal, which is a different thing.

VISCOUNT PEEL

I am going to say a word as to whether it is a Tribunal in the ordinary sense or not.

THE MARQUESS OF SALISBURY

It is called a Tribunal.

VISCOUNT PEEL

First of all I had better say a word as to how the new proposal arose to eliminate a lawyer and substitute a second doctor. It arose out of the investigations and Report of a Select Committee of the House of Commons that sat during 1919–20, looked into the whole question of pensions awards and examined the question of the right of appeal on the assessments. In their view, which was strongly stated, I understand, in their Report, there should be a majority of medical men on the committee as well as an ex-Service representative. Clearly, if the medical men are to have a majority in accordance with the recommendation of the Select Committee, it would be necessary to increase the number of medical men to three, making three medical men, One lawyer and one ex-Service representative. The noble Marquess will see that, with the number of these Appeal Tribunals, that would seriously increase the cost of the administration.

The next point is this. The noble Marquess said that the Tribunal would have to consider all sorts of questions as to what a man can earn, what his trade is and all the circumstances of the case on which, according to the noble Marquess, a lawyer is a better judge than a doctor I think that he rather based his observations on past practice and not on the system which, I understand, will be inaugurated under this Bill. The old practice certainly was not based on the principle that compensation for war disablement must be uniform for all disablements of the same kind and degree; that is the present practice. The old practice, on the other Land, was to award a pension according to the extent of the loss of a man's earning capacity. If you are going to award a pension according to the extent of the loss of a man's earning capacity, it is clear that that is a point on which I will not say that the opinion of the doctor would not be valuable but it certainly could not be final, and upon which the opinion of other people would probably have more value than that of the doctor. But as the present principle is based on the degree of disablement uniform for all disablements of the same kind and irrespective of earning capacity, we get, in the view of the Ministry, into purely medical questions on which only medical men can really have a view.

Let me point out that the old system resulted in this kind of thing. Two men, one of whom was a clerk and the other a navvy, having perhaps the same disablement, received different rates of pension because the disablement had a different effect upon their respective occupations; the clerk was hardly interrupted in his business, whereas the navvy could scarcely carry it on at all. Therefore we are not now dealing, as I say, only with these trade matters, these outside matters on which the noble Marquess rightly says that a lawyer might pronounce, but with a purely medical assessment of the scale of disability. I understand that the normal man is taken and you work out how far below the normal a disabled man may be said to be. The system has worked with justice, I understand, and with far more satisfaction than was obtained under the pre-Ministry awards.

This method of assessment depends on a technical medical judgment, and unless that basis of assessment is maintained there is some danger that appeals, as suggested by the noble Marquess, might cause great difficulty in differentiating between two cases of disablement. We have first of all the recommendation of the Committee and, secondly, the fact that a new method of assessing these disabilities has been undertaken. Is there any parallel between the class of questions which the present Appeal Tribunals under the Act of 1919 have to determine and those with which the modified Appeal Tribunals provided by this clause will have to deal? The existing Appeal Tribunals were set up to determine a question of fact—whether a disability claimed by a man to be due to his war services was, in fact, so due. That, of course, is a matter of evidence to decide which a lawyer is useful. The legal member, as chairman, was in the position of saying whether what was alleged in the man's favour was evidence or not, and what was the value. of that evidence.

But the Tribunals set up under this clause will not have to deal with questions of fact turning upon evidence other than purely medical evidence as to the extent to which a man suffers from his disability. I understand that it is the view of the Ministry of Pensions that the lawyer is not necessary, that the question to be settled is a matter purely within the ambit of the knowledge and the discretion of these medical gentlemen, and that to them, therefore, it should be left. In those circumstances, I do not know whether the noble Marquess is satisfied with the explanation I have given or whether he wishes to press the Amendment.

Amendment, by leave, withdrawn.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6 (Amendment of a 8 of 9 & 10 Geo. 5. c. 53. 11 Geo. 5. c. 23):

VISCOUNT PEEL

The Amendment to this Clause which stands in my name is of a purely drafting character.

Amendment moved— Page 7, line 3, leave out from (" considering ") to (" shall ") in line 5, and insert (" such an appeal as aforesaid ")—(Viscount Peel.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9:

Regulations to be laid before Parliament.

9. Every order and every regulation made under this Act shall be laid before each House of Parliament forthwith, and if an address is presented to His Majesty by either House within the next subsequent twenty-one days on which that House has sat next after any such order or regulation is laid before it praying that the order or regulation may be annulled, His Majesty in Council may annul the order or regulation, and it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder.

THE MARQUESS OF SALISBURY moved to leave out Clause 9 and insert the following new clause— Before any order or regulation is made under this Act a draft thereof shall be laid before each House of Parliament, and if a resolution is passed by either House within the next subsequent twenty-one days on which that House has sat next after any such draft is laid before it against the draft no further proceedings shall be taken thereon, but without prejudice to the making of any new draft order or regulation.

The noble Marquess said: I am not wedded to the actual words of my Amendment. The point I wish to raise is a very familiar one. It is as to whether the objection of both Houses of Parliament to a Regulation should be effective, or whether, in the case of the House of Lords, it should not necessarily be effective. In the form in which the approval of both Houses of Parliament is provided for in the Bill the governing word is "may." If an objection is made by either House of Parliament the proceedings may be varied. The words are:"His Majesty in Council may annul the Order or Regulation." We have often discussed this point, and it has now been settled under legal advice in your Lordships' House that it means that the Government are not bound to annul the Regulation but may do so if they please. That being so, the effect is that as the life of the Government depends upon the House of Commons, if a Motion is carried in that House it is effective and does annul the Regulation. But if it is carried in the House of Lords it may be ignored; there are precedents for that which will be within your Lordships' recollection. The drafting of my Amendment may be open to criticism, but the words I seek to substitute for those in the Bill provide that where either House objects the Regulation shall be annulled.

You have to avoid His Majesty's name, and this Amendment is drawn rather on different lines, but that is, in practice, what I seek. I would ask the Government whether they would not make that concession. These Regulations are important, and we are very much concerned for the welfare of these unfortunate pensioners, men who have suffered so acutely for the country. All we ask is that the Regulations which are to be made governing their fate in matters of pension should be kept within the control of both Houses of Parliament. If you retain the word "may" there is no certainty of the power of your Lordships' House being effective. If you change the "may," and use some such phrase as I have ventured to suggest, then it will become obligatory on the Government, when a Resolution is carried, if your Lordships' House thinks it necessary to carry one. That is not likely to be very often the case, but should you wish to do so, your action would be effective.

Amendment moved— Leave out Clause 9 and insert the said new clause.—(The Marquess of Salisbury.)

VISCOUNT PEEL

I hope the noble Marquess will not press so drastic a proposal as he has made. His words are— Before any order or regulation is made under this Act a draft thereof shall be laid before each House of Parliament, and if a resolution is passed by either House within the next subsequent twenty-one clays on which that House has sat next after any such draft is laid before it against the draft no further proceedings shall be taken thereon. The Ministry, I understand, is very anxious in the next few weeks to set up these committees and make Regulations, and if the clause of the noble Marquess were carried, there would have to be great delay.

THE MARQUESS OF SALISBURY

Perhaps the noble Viscount will address himself to the point which I submitted.

VISCOUNT PEEL

I was addressing myself to the proposal as put on the Paper by the noble Marquess. May I not do that?

THE MARQUESS OF SALISBURY

I am perfectly willing, if the noble Viscount thinks the form too drastic., to alter it, provided the Government will say that they will consent to a form of words which shall make the annulment positive instead of permissive whenever it is done by either House of Parliament. I will not say another word, but will bring up the proper form in co-operation with the Government on Report.

VISCOUNT PEEL

I will consult with the Minister of Pensions before the Report stage.

THE MARQUESS OF SALISBURY

In that case I will not press it.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10 agreed. to.