HL Deb 23 July 1946 vol 142 cc779-801

Amendments reported (according to Order).

Clause 37:

Appeal from, and review of, Minister's decisions.

37.—(1) Any question of law arising in connexion with the determination of any such question as is mentioned in sub-paragraphs (i) to (iv) of paragraph (a) of subsection (1) of the last foregoing section may, if the Minister thinks fit, be referred for decision to the High Court, and any person aggrieved by the decision of the Minister on any such question of law which is not so referred may appeal from that decision to the High Court.

(2) Provision shall be made by rules of court for regulating references and appeals to the High Court under this section, and those rules shall provide for limiting the time within which appeals may be brought.

THE MARQUESS OF READING moved at the end of subsection (2) to insert: and shall authorize the Court to grant to the claimant payment of his costs (including his own costs) by the Minister, notwithstanding that the claimant fails in his appeal". The noble Marquess said: My Lords, on the Committee stage of this Bill there was an Amendment standing in the name of the noble Lord, Lord Llewellin, in very similar, if not in identical terms to the present Amendment. When the question arose as to whether or not it should be accepted, the noble and learned Lord on the Woolsack expressed the view that it was an unnecessary Amendment because the Judge already had, without any statutory power being given to him, the necessary power to take the course which the Amendment required. The point is that in a proper case where a difficult question of law may arise a person shall not be debarred from taking the opinion of the High Court on account of his inability to pay the costs, and that, whatever the result may be, the Minister may be made to pay those costs whether he be successful or whether the other party be successful. I think the noble and learned Lord on the Woolsack agreed that that principle was desirable, but his reason for rejecting the Amendment was, as I say, that it was already covered by existing powers. I was a little startled, when he made that statement, by the suggestion that a Court has not only power to deprive a successful party of costs, but also has power to award costs to an unsuccessful party. But having been divorced from the practice of the law for some years, I certainly had not the temerity publicly to contradict the Lord Chancellor; possibly if I had been in practice I should have felt still less like doing so. However, I think the noble and learned Lord on the Woolsack will perhaps on consideration have come to the conclusion that his view as expressed at the Committee stage was wrong in that respect, and that the Court, unless it be given special powers such as are suggested in this Amendment, has not any power which can enable it to order an unsuccessful party to be awarded his costs. If that deficiency exists, it ought to be made right, and it is made right substantially by the Amendment now before your Lordships' House. I beg to move.

Amendment moved— Page 29, line 2, at end insert ("and shall authorize the court to grant to the claimant payment of his costs (including his own costs) by the Minister, notwithstanding that the claimant fails in his appeal";—(The Marquess of Reading.)


My Lords, I hope I am not unduly stubborn, but I adhere entirely to the opinion I expressed on the Committee stage. Costs are entirely in the discretion of the court. Of course that discretion has to be exercised judiciously, and so long as the exercise is judicial there is no limit to what the Judge has a right to do with regard to costs. I believe that to be an accurate statement. However, since there seems to be diversity of opinion about it, I have no objection to inserting words which have this effect. I will not insert the proposed words because I do not know what they mean. "Payment of his costs (including his own costs)" is a phrase with which I am not familiar. Perhaps the noble Marquess would not mind moving his Amendment in a slightly different form. I have given him a copy of the Amendment I suggest and I will read it out to your Lordships: and on any such reference or appeal the court may order the Minister to pay the costs of any other person, whether or not the decision is in his favour and whether or not the Minister appears on the reference or appeal. I think that gives the noble Marquess what he wants and if he is content with those words we need not embark upon a somewhat uninteresting discussion as to who was right on the question of the discretion as to costs. I will gladly accept that Amendment.


My Lords, I think the substance of the offer just made by the noble and learned Lord, the Lord Chancellor, really concludes this matter. The words which he has been good enough to say he will accept, cover, as far as I can see, exactly the point that was urged on him last week and which he then did not feel able to accept. That being so, it would be a very inappropriate proceeding if there were to be any controversy on what is now admittedly an immaterial point of law. I will only observe in a single sentence that, so far as I understand the law, generally speaking a Judge has no right at all, while deciding in favour of A, to say that A shall pay all the costs. He has indeed to exercise his judicial discretion, but unless there was some reason for it he would be wrong if he made such an order. The best known case on the subject, if I may end on a somewhat arid note, is Higgins v. Higgins, reported in 1916, I King's Bench, page 640.


My Lords, I wish to associate myself with what has fallen from my noble friend Viscount Simon. I would also say that if it were a matter of argument as to which was right and which was wrong, there would, in my view, be something to be said for the theoretical statement of the law by the noble and learned Lord on the Woolsack. I would go so far as to say that it would be difficult to quarrel with his general statement, but—and this, I think, is the vital matter—it has never been held in our courts that a defeated defendant should be paid his costs unless there are special reasons for it. It is just as well that it should be made perfectly clear that the arbitrator, or whoever it is, to whom this clause applies, will have complete power in a test case, where it is just and reasonable, to award costs even to a man who has been unsuccessful in his claim.


My Lords, as I originally raised this point, I merely rise to say that I think the words proposed by the noble and learned Lord, the Lord Chancellor, are better than the words I originally proposed and that I am much obliged to him.


My Lords, I have certainly no intention of becoming involved in a discussion with three Lord Chancellors or ex-Lord Chancellors on this subject. I thank the noble and learned Lord on the Woolsack for his suggested Amendment, which I agree meets the case better than the original one put forward. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.


I beg to move the Amendment suggested by the Lord Chancellor.

Amendment moved— Page 29, line 12, at end insert ("and on any such reference or appeal the court may order the Minister to pay the costs of any other person, whether or not the decision is in his favour and whether or not the Minister appears on the reference or appeal").—(The Marquess of Reading.)

On Question, Amendment agreed to.

Clause 42:

Appointment of Commissioner and deputy Commissioners.

42.—(1) For the purposes of this Act an Industrial Injuries Commissioner (in this Act referred to as "the Commissioner") may be appointed by His Majesty and such number of deputy Commissioners as His Majesty thinks fit may be so appointed.

THE LORD CHANCELLOR moved at the end of subsection (1) to insert: The Commissioner and deputy Commissioners shall be barristers or advocates of not less than ten years' standing. The noble and learned Lord said: My Lords, this Amendment is intended to carry out a promise which I gave on the Committee stage. I thought at that time that I should have to deal separately with advocates in the Scottish application clause but I had not then realized that while that may have been true with regard to the local tribunals, with regard to this central tribunal it is, of course, of the utmost importance that we should have similarity of decision both in England and Scotland. Therefore we must deal with both in this clause. I need only assure your Lordships that so far as this rests with me—and I suppose it will—I shall do my best to see that the Commissioner and deputy Commissioners are lawyers of first-rate standing and the sort of people who are of the status of High Court Judges.

Amendment moved— Page 31, line 35, at end insert ("The Commissioner and deputy Commissioners shall be barristers or advocates of not less than ten years' standing.")—(The Lord Chancellor.)


My Lords, I should like to thank the Lord Chancellor, who gave this undertaking after a speech that I made. I am very much obliged to him.

On Question, Amendment agreed to.

Clause 47:

Appeals to Commissioner.

47.—(1) Subject as hereinafter provided, an appeal shall lie to the Commissioner from any decision of a local appeal tribunal—

(5) Where the local appeal tribunal grant leave to appeal they shall record in writing a statement of the grounds on which leave to appeal is granted.

THE MARQUESS OF READING moved, after subsection (5), to insert: ( ) Any question of law arising in connexion with the determination of any such appeal may, if the Commissioner thinks fit, be referred by him for decision to the Court of Appeal, and every person aggrieved by the decision of the Commissioner on any such question of law which is not so referred may with leave of the Court of Appeal appeal from that decision to the Court of Appeal. ( ) Provision shall be made by rules of Court for regulating references and appeals to the Court of Appeal under this section, and these rules shall provide a limit of time within which such appeals may be brought. The noble Marquess said: My Lords, I venture to think, although it stands in my name, that this is on general grounds an important Amendment. I am sure your Lordships realize two things about the scheme of compensation contained in this Bill. The first thing is that it takes the place of the Workmen's Compensation Act procedure which has been in vogue for the past fifty years and in the course of which a large number of matters of great legal import have been raised and successively decided by various courts of law. The second thing is, as I am sure your Lordships realize, that in this Bill and as the present scheme provides, the courts of law have no standing at any stage to express any opinion on what I may call the new Work men's Compensation Act procedure which is embodied in this Bill. That seems to me to be wrong in principle, and because I ventured to think it was wrong in principle I put down on the Committee stage an Amendment, rather different in form from the present one, which the noble and learned Lord on the Woolsack found himself unable to accept. He pointed out that the procedure then advocated would mean a long series of trials before different tribunals and that that was from many points of view undesirable. He also gave the assurance which he has just repeated, that whoever was appointed to fill the office of Commissioner under this Bill would be a person of a status comparable to that of a High Court Judge.

Having regard to that assurance, I quite agree that it is not necessary to go through the first stage of appeal which was contemplated in my original Amendment and bring the case from the Commissioner to a High Court Judge. The Amendment which I have now substituted gives a right of appeal in certain cases direct to the Court of Appeal, cutting out the High Court, because I rely on the fact that the Commissioner will be not less skilled professionally than a Judge of the High Court. What is the position unless this Amendment he accepted? It is that the decision of the Commissioner on any point of law, however general in application and however intricate in content, can go no further than the Commissioner, and the Commissioner is to all intents and purposes not a Judge but a civil servant. It seems to me to be a wrong principle that you should exclude the courts of law from any expression of opinion. After all, what is the purpose of a court of appeal unless the principle is accepted that the collective knowledge, wisdom and experience of three persons is greater than that of one? I cannot help thinking that the Commissioner himself and his deputy Commissioners would be only too glad to feel, especially in the early stages of the administration of this new scheme, that they had behind them in cases of difficulty some authoritative tribunal such as the Court of Appeal to which they might refer any problem that arose.

I feel too that the parties might feel more satisfied if they knew that the Commissioners' decision was not the last word upon the subject. The noble and learned Lord on the Woolsack, in the course of the Committee stage, spoke of the necessity for justice being swift and cheap. I entirely agree with both those laudable objects, but they are not the end of the matter. Justice should be as absolute as it is possible for the fallible minds of men to make it. The Cadi under the palm tree is all very well so long as he himself is convinced that he is right and the people who appear before him are equally so convinced. But if he begins to have doubts of his decision, and the persons appearing before him begin to question his judgments, then his value is very largely destroyed.

Here you have this Commissioner and his deputy Commissioners who rank equally with him; their status is the same. You may have one sitting presumably in Scotland, one in the north of England and one in the south of England. The same point may be referred to each one of them, they may come to three entirely separate conclusions, and that is the end of the matter. There is no court of appeal to which they can go to get an authoritative decision which would be binding upon them. It is quite true that in Clause 42 of the Bill there is the proviso that if it appears to involve a point of law of special difficulty a case may be heard by a tribunal consisting of three Commissioners. But those of us who have practised the law at any time and on any level know that points of law cannot always be relied upon to appear in advance, and though you may think that a particular case is quite straightforward, in the course of the hearing there may well appear a point of law of very great, importance which one of these Commissioners or deputy Commissioners will be called upon to decide, and his decision will be the last word.

I very strongly feel that to make it impossible to obtain any really authoritative opinion in these matters is wrong. I do not anticipate for a moment that there would be many cases referred to the Court of Appeal under this Amendment, because for the last fifty years the whole question of workmen's compensation has been considered innumerable times by the courts, and there is a vast bulk of legal decisions on the subject. It would, therefore, only be the exceptional cases which remain to be considered by the Court of Appeal, but in my view it is very necessary that they should be so considered.

I want to add only one thing. Let it not be thought that a provision of this kind would be against the interest of the workman, the insured person. I think that anybody who has followed the workings of the system of workmen's compensation would agree that the whole trend of decisions before the higher courts has been to the advantage of the workman as against the employer. I suggest that with that in mind the workman would not be in any way at a disadvantage by the proposal in this Amendment, but that indeed it would be of real assistance to him. I beg to move.

Amendment moved— Page 34, line 17, at end insert the said new subsections.—(The Marquess of Reading.)

3.26 p.m.


With great deference to the noble and learned Lord, the Lord Chancellor, I feel it my duty to say in candour that I sympathize with what the noble Marquess has just said. I know that the noble and learned Lord has very firmly expressed another view. That view may be right, but at least it is worth spending a few minutes to consider where the balance of the argument lies. Under this new Bill we are putting the business of giving compensation for industrial injuries into the hands of a Government Department. We are sweeping away the old system which had both advantages and disadvantages. I do not at all complain that the new system be substituted; it seems to me on balance that it is right and that the new plan is better than the old, and I think we all ought to feel grateful to the Government that they have undertaken to do this.

But let us realize what the new plan involves. It involves things which are immensely important to people who suffer from industrial injury. The workman who has met with an accident will have his claim decided by the machinery in this Bill, and, as things stand, without any possible reference to the courts at all. The Lord Chancellor said on the previous Amendment that he was going to do his utmost—as I am sure he is—to secure the best man or, I suppose, woman he can as Commissioner or deputy Commissioner. They will be banisters of ten years' standing in England, and advocates in Scotland of that minimum experience. That is all very well, but it is no good pretending that they are going to be Judges, because a Judge is a person who cannot be removed and who has a status which nothing short of a Resolution of both Houses of Parliament is likely to alter. They are in fact going to be public-spirited and independent-minded members of this organization. What is the kind of thing which may arise? I suppose the most important thing is the question which has so frequently to be decided, that is, whether the accident arises out of and in the course of the man's employment. That is to be found in the first subsection of the first clause. It provides that— … all persons employed in insurable employment shall be insured in manner provided by this Act against personal injury caused on or after the appointed day by accident arising out of and in the course of such employment. I am perfectly certain that the noble Lord, the Lord Chancellor, with his long experience and his judicial mind, will admit at once—will gladly agree, in fact—that it has been, on the whole, of great benefit to the insured workmen of this country that that question has had to be decided in courts of law in the past. Both he and I know of many cases in which, on an appeal being made to the courts on a matter of law, a decision has been given which has clarified the law and enlarged points of workmen's compensation. It is not necessary to quote cases, for undoubtedly that is so. However, now that we are changing all this and it is going into the hands of a Government Department, and now that there is a fund which the Government Department has to administer, I ask myself is it really to the general public advantage to say there shall be no appeal to the courts?

May I call attention to the actual terms of the Amendment of my noble friend Lord Reading? It is not the one he moved before. It is in much narrower shape, and I invite noble Lords who know this subject very well, and who want to act fairly in this matter, to consider the cases to which it refers. The first case is one in which the Commissioner may think fit to say: "I really feel that this particular issue which has arisen is one on which I should like to have the verdict and judgment of the court." As the Bill stands, it is no good the Commissioner wanting that. He cannot have it. A phrase sometimes used, which I do not think has any real justification, is that "the lawyers do the mischief," and that phrase so takes hold of some people that they say: "We shall make a much better case of this from our point of view if we say, 'Out with the Judges'." I do not believe it. I feel that if you take some of the instances where the question arises as to whether an accident arose out of and in the course of the employment, you would agree that it is far better that they should be decided, if the Commissioner wishes it so, by a legal tribunal.

The second case referred to in my noble friend's Amendment is one where a decision has gone against a claimant—against a man. I agree that if thereupon he could disregard all the existing machinery and say: "I will have another shot in the Court of Appeal or in the House of Lords," appeals would be multiplied and time occupied by cases for which, in many instances, there would be no justification. There are many people who appeal when they have not any real case, and, of course, I want to stop that. We all want to stop it. But when, in the judgment of entirely impartial people, it is thought that the man has really got a substantial point of law, then the Amendment provides for the Court of Appeal, if the Court of Appeal also takes the view that the man has indeed got a point of law which ought to be decided, to give leave for-that matter to be brought before it. These are the only two provisions of the Amendment. I wish, in the interests of justice and good order, and nothing else, that something of this sort could be done. I know quite well some of the considerations that moved the Government. My noble friend and I do not minimize them.

The Lord Chancellor may say: "After all we have set up, by statute, a system of legal tribunals with an appeal to the Commissioners. Is not that enough for anybody? Why do you want to go any further?" That does not get over the difficulty which I honestly feel arises, because it is better, in these cases, if you can, to go to the authorized court, staffed by people whose life is given to the business of administering justice and who cannot be lightly removed. I still feel it is better to do that if you possibly can.

The parallel is far from being complete, but I remember that when I occupied the seat which my noble and learned friend now occupies, we carried through in 1943—I think first of all in your Lordships' House—the Pensions Appeal Tribunals Act. It was carried through after much discussion and with a great deal of attention in both Houses, and I see that there is this provision in it: that where, in the case of an appeal to the Tribunal under the Act, the appellant or the Minister is dissatisfied with the decision of the Tribunal—that is, the Appeal Tribunal—as being erroneous in point of law, he may, with the leave of the Tribunal or a Judge of the High Court nominated for the purpose by the Lord Chancellor, appeal therefrom.

In the Unemployment Insurance Act, which, as some of your Lordships may remember, was passed in 1911, if my memory serves me aright, there was provision that if an important question of law arose under that Act there was to be the possibility of an appeal to a High Court judge, and a particular High Court Judge was nominated. I do not give these examples, as I am sure the Lord Chancellor will recognize, as being in all respects parallel.


Will the noble and learned Viscount give me the reference to his last statement regarding the Unemployment Insurance Act? I thought I knew this matter pretty well, but I confess that I do not remember that provision.


I thought that there was such a provision. I thought so because I remember that I have myself appeared before the High Court Judge in question.


Is it not a question of insurability?


That may be, and it may not be on the same question. I was careful to point out that the parallel was not complete. The point is that a High Court Judge was appointed for the purpose of deciding the question whether or not a man is to be insured under the Unemployment Insurance Act. Is not that so?


That is so. I have appeared in those cases.


I am quite sure it is so, but please do not think that I am saying the cases are parallel. The point is that it has been thought in the past, and, I think, thought by the Party opposite, who were undoubtedly thinking very carefully of the particular interests of wage-earners (they were not the only people who thought of those interests, of course) that it was a good thing when there was a real difficulty on a point of law, that the Tribunal—in this case it would be the Commissioner—might itself give leave to appeal, or if the applicant failed and he satisfied the court that he had a genuine point of law which ought to be decided, he should be given leave. Now that is not in fact so under this Bill.

I know that the noble and learned Lord will say, and, of course, he will say it with great accuracy, that we must avoid the possibility of a conflict between the view held in England and the view in Scotland. That is the difficulty. It is extraordinary how the question of Scotland keeps arising in this House; how Scotland insists upon her own rights and is not content with the decision of the Sassenach. In these uncommon instances, if it was desired to give the defeated man an opportunity of going to the Court of Appeal, it was feared that there might be a decision in the Court of Session in Scotland which did not agree with the Court of Appeal in England. In those circumstances nothing would be easier than for the noble and learned Lord, the Lord Chancellor, to insert limiting words. I am not in the least in favour of a whole series of tribunals one after the other.

I am perfectly willing to see the matter limited in any way that is proper, but I am afraid that I do hold to the doctrine that when it comes to the question of a man's rights under the law, the proper tribunal to give the ultimate decision is a law court. Some may consider that that is an old fashioned or purely professional view, but I believe that it is part of the essential rights of the British people that when a really serious question affecting their own individual rights arises, and depends not on facts but on law, it should be decided under conditions which do not exclude courts. I apologize for speaking at this length, but I assure you that I feel the matter keenly and not in any way controversially, so far as my noble friend the learned Lord on the Woolsack is concerned. I think it is my duty to say, from such experience as I have had in various capacities, that this is a principle which we should be sorry to see set aside.

3.41 p.m.


My Lords, as the noble Marquess, Lord Reading, said, this is a very important matter. I should not like it to pass without indicating my own opinion, for what that is worth, and it is that which has already been expressed by the noble Marquess, Lord Reading, and by the noble and learned Viscount, Lord Simon. I am convinced that it will tend to a better working of the Bill if on all difficult points there are some means of getting a decision of so eminent a tribunal as the Court of Appeal. Unless this clause, or something approximating to this clause, is allowed, I am afraid that there will grow up in different parts of the country different ways of dealing with a certain question of law. Decisions of Commissioners will probably not be widely advertised, but so far as they become known to the public it will be known that some doubt exists about the matter, some Commissioners taking one view and some another. The result of that must necessarily be that it will be impossible to advise some of the working men, whose interests we have at heart, whether they ought to take the step of appealing, or trying to get leave to appeal, to the Commissioner. Accordingly, in the interests of the working men themselves, I urge that something of this sort should be included. For my part I am sure it will help the feeling which should prevail throughout the country that this Bill is being fairly administered in all parts—including Scotland.

3.43 p.m.


My Lords, I, too, feel very keenly about this matter, and I regard it as one of great importance. It is rather a good thing that a man who has been a lawyer all his life—and we are apt to think that our system of law is perfect—should for a short time cease to be a lawyer and should look at this question from another point of view. I was Minister of National Insurance, and it became my task to mould this Bill. I was responsible for drafting this clause. There was no clause in the Bill on which I received more deputations than that. I think I may say that there was no clause to which my colleagues in the late Coalition Government more readily gave their assent. Why is it that all the trade unions concerned have agreed and told me how much more they preferred the judgment of the House of Lords on workmen's compensation to the judgment of the Court of Appeal? Why is it that they were all so anxious that we should not go beyond the Commissioners? It is for this reason. If an unfortunate person gets his hand caught in this machine of litigation he may be dragged up from court to court, unable to stop.

I will give you an experience—a professional experience—of my own. I remember—and another noble Lord will remember this very well—a man who very foolishly signed a cheque, putting in the figures £2 but not writing in the words "Two pounds." His secretary, although he did not know it, was a dishonest man; and nothing was easier for him than to put a figure "1" in front of the "2" and a "0" after it, and fill in the words "One hundred and twenty pounds." I was a comparatively young man at the Bar, and the original writer of the cheque came to me to ask who should bear the loss of that£118 the bank or himself? I said I thought the loss should fall on the bank. So we started litigation. We had a very long hearing in the first court, the Commercial Court, and eventually the costs there amounted to such a high figure that the£118 faded into absolute insignificance. My client won. That was very satisfactory. He then said to me: "I am sorry I started this litigation. I do not care about the £118. Let us call it a day, each party paying their own costs." The bank, however, said: "This is a very important question to us; we must have it determined." And so we were taken to the Court of Appeal. Again, after a lengthy hearing, my client won. Then he saw, with horror, the prospect of the House of Lords! He said to the Bank: "I will tell you what I will do. Although I have won I will abandon the £118, and pay your costs in the two courts, if you will only let me go." To this the bank said "No." And so up we came to the House of Lords. After an even more learned hearing there, in which we quoted all the Roman and French jurists, and which lasted for days, my unforunate client lost. No doubt justice was done; accuracy was achieved. But it cost my unfortunate client some £6,000 in respect of litigation over £118, although he had won his case in the first two courts.

Therefore people say "This system is an admirable system, but do put some limit beyond which people will not be taken." Here we are concerned with a Minister, on the one hand, and the workman on the other. I saw nearly all the trade unions on this matter of compensation and they have nothing but the greatest praise for the decisions of the House of Lords. The representatives of these trade unions all asked that we should stop when we get to the Commissioner. Their view was that the Commissioner can sit with his deputies around him, and if anybody finds that it is a very difficult point—and difficulties do emerge—the tribunal can adjourn and summon a court of three Commissioners to deal with the matter. As I understand it this proposal of the noble Lord is, first of all, that you have an insurance officer who investigates the circumstances and finds out whether the accident arises in the course of employment. Then you come to the local tribunal of three persons, one of whom will be a lawyer. Then you come to the Commissioner, and, if necessary, three of them a Commissioner and two deputies, can sit together.

Then, says the noble Marquess, either the Commissioner can give leave to appeal or you can go to the Court of Appeal and ask for leave to appeal. The next step is going to the Court of Appeal and asking for leave. So long as you satisfy the Court of Appeal that you have a reasonable case, there should be leave to appeal. The next step is, you go to the Court of Appeal and get a decision of that Court. I suppose the next step is the House of Lords, because in this Amendment, for some reason or another which I cannot understand, the noble Marquess has completely forgotten Scotland. What has the Court of Appeal to do with Scotland? Is Scotland going to have its legal decisions heard before the Court of Appeal? No; obviously it would be the Court of Session: If you have the Court of Session in Scotland, and in England the Court of Appeal, you must go to the House of Lords, which is the appellate Court for both of them, otherwise you will be in a difficulty. This matter of having one decision in Scotland and another decision in England is now causing me a headache in another connexion. There is no means of reconciling them. So you have to go to the House of Lords. The lawyers want it. I have practised considerably in the higher courts and I always had an active regret that there was not some court higher than the House of Lords. I do beg of your Lordships to see in this matter that we really should be content with the position as it is. I think the effect of this Amendment, with all these multiple appeals, would be really quite disastrous to the Bill.

There are one or two further matters. I do not think that there is much in the point that the Commissioner is not like a Judge, who can be removed only by an Address of both Houses of Parliament. I think everybody will agree we can all be proud of our County Court Judges of to-day—I think that they are doing a magnificent job of work. Theoretically, I can remove a County Court Judge. I have never done so, and so far as I know, it has never been done by any other Lord Chancellor. But I have the power. Is there anybody who will say that the County Court Judge is any less independent because theoretically the Lord Chancellor of the day can remove him? I do not believe it for a moment. A comparison has been made with the Pensions Appeal Tribunal. It is called an Appeal Tribunal. What is the procedure there? The Minister of Pensions decides. If a person is dissatisfied with the Minister's decision he can appeal to that tribunal. In certain circumstances an appeal can be made to a nominated Judge. You cannot go to the Court of Appeal or to the House of Lords. I say sincerely I am quite satisfied that the conclusion to which I came when I drafted this Bill is right. I think that the deputations who came to me, and who felt so strongly about this were reasonable, and that my colleagues in the Coalition Government were right in introducing the Bill in this form. I am quite satisfied that, in order, supposedly, to achieve greater accuracy, to build up a machine with all these multiple appeals would be a very great disservice in carrying out the object of a Bill which is intended beyond everything else to be cheap, to be simple and to be expeditious, and, may I add, so that there may be no misapprehension this time, I do not think that means that it will be inaccurate.


The noble and learned Lord on the Woolsack has, of course, made his usual extremely cogent reply to an Amendment which he does not like. He gave us some interesting reminiscences of his own early days at the Bar and of the costs which had accumulated in that particular case. That may be a condemnation of our entire legal system and, if it be so, I have no doubt nobody will be more active and prompt in putting it right than the noble and learned Lord himself; but it does not seem to me to be by any means a complete answer to the Amendment which I have now put. He talks about deputations which he received from the trade unions. I should like to know whether it was put to the trade unions that there should be the same right of appeal right the way up through every court, or whether the proposal in this particular Amendment was ever put to the trade unions, and whether they ruled out any possibility of any point under this Bill being referred to the courts of law. Even if they did I am by no means convinced, whatever their view, that that is necessarily the last word on this subject.

He said also that the lawyers want it. It is quite true that those who have taken part in these discussions have been lawyers of varying degrees of eminence. It is possible that they did so because it is a somewhat technical matter in which those who are not lawyers might feel reluctant to intervene. I thought, however, that I made it very clear on my original Amendment that, in moving an Amendment of this kind, I was not doing it in the interest of the Bar or the legal profession; I was doing it because I thought, as a matter of principle, that the courts ought to be allowed to express a view on a matter of this public importance. I hope the noble and learned Lord on the Woolsack will accept that view. I am wondering what his answer is on one other point which I venture to make—I think the noble and learned Viscount, Lord Maugham, made it, too. What happens supposing the three Commissioners decide some point differently? Who decides between them as matters now stand? If it were convenient for the Lord Chancellor to indicate what would happen, that would help me.


I should imagine that what would happen is that you would summon a court of three Commissioners to decide.


Can the three Commissioners over-ride a decision of one Commissioner?




The noble Lord says "Yes." I am bound to say that I can find nothing in the Bill which appears to give them any power of that kind. I understood this court of three Commissioners to be in no sense a court of appeal from one Commissioner, but merely a court on a similar level, to which, in the event of an important point of law arising, the matter could be referred ab initio. I have certainly never understood that if the Commissioners disagree amongst themselves sitting separately, they then can come and get a decision binding upon them all from this court of three. It would help me again if the noble and learned Lord could tell me if that is so.


I understood the noble Marquess to put this point: Suppose one Commissioner decided one thing and another Commissioner decided another, what would happen? I say that in those circumstances there are two precedents which can be followed. In those circumstances, the court of three would meet together, and I should imagine thereafter the point would be decided.


Meeting together—all three of them? I do not want to carry on the discussion, but I want to make this quite clear. I do not want to embarrass the Government by putting forward this Amendment, but I do regard it as a matter of considerable principle. I wish I had some hope—and I think many of your Lordships share the view I put forward—that the Government would make at least some concession or give some hope of reconsideration in regard to this matter before the Third Reading stage is reached. The Lord Chancellor has been, if I may say so, unusually adamant on this point. I still hope we may have some indication from him that he is prepared to consider the matter further before the Third Reading stage. If he likes, I shall be prepared to put my Amendment in this way: that the matter should go no further than the Court of Appeal, that there should be a provision that, "except with the leave of the House of Lords," the decision of the Court of Appeal shall itself he final. That takes out yet one more step in this ascending ladder of which the Lord Chancellor has painted so gloomy a picture. If the noble and learned Lord, the Lord Chancellor, would agree to consider the matter again before Third Reading, that would be some reassurance to myself and other noble Lords.


I am not entitled to speak again. I have made my point of view quite plain. I feel very strongly about this matter; so does this Government, and so did the last Government.


I have no right to speak again, but may I suggest to the noble and learned Lord, the Lord Chancellor, that he should at least have put in the Bill something to justify his statement that there would be an appeal to the three Commissioners? That would very largely remove my difficulties. I have read Clause 42 of the Bill very carefully, and there is nothing to justify the statement that a court of three could decide as an Appellate Court.

On Question, Amendment negatived.

Clause 51:

Procedure, evidence, etc.

51.—(1) Regulations may provide— (a) for prescribing the procedure to be followed and the form of any document required in connexion with the consideration and determination of claims and questions by the Minister, an insurance tribunal and insurance officers or in connexion with the withdrawal of a claim;

(3) Regulations under subsection (1) of this section prescribing the procedure to be followed in cases before a local appeal tribunal or the Commissioner shall provide that any hearing shall be in public except in so far as the tribunal or Commissioner for special reasons otherwise directs.

THE LORD CHANCELLOR moved at the end of subsection (3) to insert: and it is hereby declared that the power to prescribe procedure includes power to make provision as to the representation of one person, at any hearing of a case, by another person whether having professional qualifications or not. The noble and learned Lord said: My Lords, this is to meet a point suggested to me by the noble Lord, Lord Llewellin, who asked me to be quite certain that my regulation-making power was wide enough. I think it is desirable to make the matter quite plain by these words, and I believe the noble Lord will agree with me that I have made the matter plain. I beg to move.

Amendment moved— Page 37, line 17, at end insert the said new words.—(The Lord Chancellor.)


My Lords, I am obliged to the noble and learned Lord, the Lord Chancellor. I do agree with the noble and learned Lord that the insertion of these words in the Amendment will make the matter quite plain.

On Question, Amendment agreed to.

Clause 61:


61.—(1) For the purposes of this Act the Minister may appoint such inspectors as he may with the consent of the Treasury determine, and may pay to them such salaries or remuneration as may be so determined.

(4) If any person—

  1. (a) wilfully delays or obstructs an inspector in the exercise of any power under this section; or
  2. (b) fails to answer any question or to furnish any information or to produce any document or to sign any declaration when required so to do under this section; or
  3. (c) conceals or attempts to conceal any person or prevents or attempts to prevent any person from appearing before or being examined by an inspector;
he shall be liable on summary conviction to a fine not exceeding ten pounds in the case of a first offence under this subsection, and not exceeding fifty pounds in the case of a second or subsequent such offence:

THE LORD CHANCELLOR moved in subsection (4) (b) to leave out "fails" and insert "refuses or neglects." The noble and learned Lord said: My Lords, this is an Amendment on a point raised by my noble friend the Marquess of Reading. I think the words are a great improvement on the words in the Bill at the present time, and it is to carry out my promise to the noble Marquess that I move this Amendment.

Amendment moved— Page 47, line 1, leave out ("fails") and insert ("refuses or neglects").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Fourth Schedule:

Provisions limiting benefit payable in respect of any death.

1.—(1) Where two or more persons satisfy the conditions, in respect of the same death, for receipt of an allowance under Section twenty-one of this Act for any period, only one of those persons shall be entitled for that period to that allowance, and where two or more persons satisfy the conditons, in respect of the same death, for receipt of—

  1. (a) a pension under Section twenty-three of this Act; or
  2. (b) an allowance ruder Section twenty-four thereof;
only one of those persons shall be entitled to the pension or allowance, as the case may be.

5.—(1) The death benefit payable in respect of the death of any insured person by way of parents' gratuities shall not exceed seventy-eight pounds.

(2) The death benefit payable as aforesaid by way of relatives' gratuities shall not exceed fifty-two pounds, except where either—

  1. (a) no person is entitled in respect of the deceased's death to a pension; or
  2. (b) some person is entitled in respect thereof to a gratuity in lieu of a pension;
and shall not in any case exceed one hundred and four pounds.

6.—(1) A person shall be treated for the purposes of this Schedule as satisfying the conditions for the receipt of a pension under the said Section twenty-three notwithstanding that he is a child, if he may satisfy those conditions on ceasing to be a child.

(2) The provision of this Schedule limiting the number of persons entitled to a pension under the said Section twenty-three shall not preclude a person from becoming so entitled on ceasing to be a child by reason only of some other person having previously been so entitled.

(3) For the purposes of sub-paragraph (2) of the last foregoing paragraph, any pension or gratuity under the said Section twenty-three to which a person becomes or may become entitled on ceasing to be a child shall be disregarded.

LORD LLEWELLIN moved, in paragraph 6 (3), to leave out "becomes or." The noble Lord said: My Lords, I apologize for rising at this stage to move a manuscript Amendment. I feel in some difficulty about the matter. It was quite rightly decided not to reprint the Bill on account of the few Amendments we made, but while I make no complaint about that decision the result is that the words which I propose should be left out do not appear in the printed Bill. The noble Lord, Lord Pakenham, moved in Committee to insert after the word "person," in paragraph 6 (3), the words "becomes or," and that Amendment was agreed to. The noble Lord, Lord Pakenham, tried, as he usually does, to give us an explanation. I have since had a discussion with him and he has tried to convince me that "becomes" means something different from "may become." But still I am not convinced. When I look a few lines above, I see that in 6 (1) A person shall be treated for the purposes of this Schedule as satisfying the conditions for the receipt of a pension under the said Section twenty-three notwithstanding that he is a child, if he may satisfy those conditions on ceasing to be a child. If we put in "becomes" here, we ought to put "when he satisfies or may satisfy" in 6 (1). I only raise this point now because I do not believe it makes any material difference whatever to this paragraph, which is only a directive one, after all, to the Ministry itself, and I think we might all of us look slightly absurd in another place if we send down this Amendment to their drafting without any greater expanation than that—I say this with all the good will in the world—which has been given to me at the moment. I beg to move.

Amendment moved— Page 75, line 50, leave out "becomes or."—(Lord Llewellin.)


My Lords, I think the noble Lord opposite is certainly to be congratulated on the vigilance he has shown in this matter. In fairness to the draftsmen I should explain that the Amendment which was passed at the Committee stage was intended to cover the rare but not impossible case of a child of a deceased workman who ceases to be a child after the man has died and before the case is finally decided. We feel that while the Amendment inserted at the Committee stage made assurance doubly sure, no one in fact would suffer if the noble Lord's present Amendment is carried, and in view of what he has said I am pleased on behalf of the Government to accept the Amendment.

On Question, Amendment agreed to.

Then, Standing Order No. XXXIX having been suspended (pursuant to the resolution of July 15), Bill read 3a, with the Amendments, and passed, and returned to the Commons.