§ Order of the Day for the Second Reading, read.
§ THE LORD CHANCELLOR (LORD JOWITT)
My Lords, I beg to move that this Bill be read a second time. There is no particular Party which can claim the credit for this Bill, and such credit as it brings is equally to be shared, I think, by all Parties. I may, perhaps, remind your Lordships of the circumstances in which this Bill came about. At the out-break of war, a Commission was sitting on the question of workmen's compensation. Their labours had to be suspended by the outbreak of war after they had 5 done a very considerable amount of work, but it was felt that the work they had done and the evidence they had collected should not be wasted. Accordingly the Home Office—the Secretary of State at that time was Mr. Herbert Morrison, and the Under-Secretary of State was Mr. Peake—worked at the plan and evolved, I think, the main germ of the idea, namely, that workmen's compensation should be transferred and become a social service and that it should be very closely equated to the principle of war pensions with which, of course, at that time we had all become familiar.
At that stage I think that the credit for the idea was due to one member of the Labour Party and one member of the Conservative Party. The Bill passed then into the general charge of the noble Lord, Lord Woolton, who was Minister of Reconstruction. In those days the noble Lord used to stress his non-Party character; so much so that I looked forward with confidence to being able to welcome him into the ranks of the Labour Party. I need hardly say I still look forward to that, with perhaps rather less confidence than a year ago. Anyway, he took the matter in hand and I had the great privilege and honour of serving on his Committee. Members of all Parties served on that Committee. A White Paper was published, I think, in September, 1944, Command Paper No. 6551, and I would recommend any of your Lordships who want a short statement as to the reasons for this Bill to read the foreword to that Report, which sets it out with a lucidity and a brevity which I could not possibly emulate to-day.
In the next month, October, 1944, I became Minister of National Insurance. I am getting so old that perhaps I may now justifiably claim to become reminiscent. I realized that my tenure of that office, which of course was dependent upon the German war, was not likely to be very long, and I was very anxious whilst I did hold the office to be able to produce some Bill. It would, I think, perhaps have been better if we had concentrated on bringing in one long insurance measure, of which this social insurance would have been a part and family allowances perhaps another part. It was quite obvious that I could not hope to do that in my term of office, and therefore I pressed that I might be allowed to work first on family allowances and 6 secondly on industrial injuries insurance. I got my way and I managed after a considerable Parliamentary tussle to see family allowances through, and then I turned to this question of industrial injuries insurance. I was working against time for the reasons I have given. I confess I worked very hard, and I confess, too, that I was beaten by the shortest of possible heads. I got the approval of all the necessary Committees. The House met, as we now know, for the last time in the days of the Coalition Government on Friday, May 18. Unfortunately the edict went forth that I was to obtain the formal approval of the Cabinet on Friday, May 18, and therefore I could not give notice of introduction of my Bill. I was unable therefore to publish the Bill under my own name, but my successor in the new Caretaker Government, Mr. Hore-Belisha, did me the great honour of introducing the Bill in exactly the same form in which I prepared it.
To-day I catch up with my dear friend again. I feel rather like the old nanny who by tradition is always looking down from the gallery to see how the young lady, whom she helped to bring into the world and nursed through her tender years, is comporting herself on her first public engagement. I should also like to pay a tribute to the work done by Sir William Beveridge. He also investigated this matter and he too came to the conclusion that workmen's compensation should be transformed into a social service. Although I confess that I think on this matter of workmen's compensation, his report was not so satisfactory as it was on some other matters, yet we must pay our debt of gratitude to him.
I think anybody who considered the system of workmen's compensation as it has developed, realized, as those of us who practised in the law realized, what a godsend it had been to workers in industry. Yet certain limitations and failures did reveal themselves. The first among them I think was this. The scheme of workmen's compensation was based entirely on earnings, and what was compensated for was loss of earnings. Consequently, one could have a case like the following: Let me take the case of a shorthand typist who was injured by some accident arising out of or in the course of her employment, who had lost both legs, but who managed to get to the office afterwards perhaps by the aid of wooden 7 legs or what you like, and earn just as much as she earned before. No compensation would be payable in such a case because there had been no loss of wages. The Act did not take into consideration the loss of enjoyment of life, the loss of the privileges which all of us who enjoy good health enjoy automatically. That was the first defect in the Act. Then there was the very great difficulty of ascertaining what the wages were. A very large porportion of the cases in the latter years turned on an ascertainment of wages which formed the basis of the calculation. Then it followed that if an injured person made an effort to go back to work, and did go back to work, the mere fact that he earned wages automatically involved the reduction of the compensation. I am quite convinced from what I saw in the time that I held the office—and it made me more certain than ever—that part of the curative treatment of these people is to get them back as wage-earners earning their own living.
Then, too, there was this difficulty. Employers used to insure—indeed under some more modern legislation they were compelled to insure—and the conduct of this matter passed into the hands of the insurance companies, and, although I must not be understood for a moment as making any attack on the insurance companies, vet a good deal was lost in that the employer could not deal directly with his man; he had the matter taken out of his hands, and in some cases undoubtedly there were rather unworthy attempts made to get the injured workman to enter into a composition which was going to put an end to his right of remuneration. Further, there is no doubt that the administrative cost of the existing system was too high. In some cases it amounted to as much as 50 per cent. Fifty-three per cent. was the figure quoted. Only 47 per cent. therefore of the amount paid found its way into the pockets of the workers. In other cases, such as in the case of the mutual companies, it was by no means so high, but even there it was seldom under 20 per cent. Your Lord-ships will, I am sure, agree that if we can adopt a system which is going to cut down considerably the percentage of administrative costs it is very desirable to do so.
The other point is this: when Mr. Joseph Chamberlain introduced his great 8 scheme he was very anxious to keep it out of what I may call the legal atmosphere. He wanted to have the thing dealt with by all authorities, as it were, sitting round a table. He wanted a system of friendly arbitration. That was a failure. As your Lordships know, no topic of the law lent itself more readily to famous legal battles than the determination of the issue as to whether an accident had arisen out of or in the course of employment. When I came to draft this Bill I confess I was very anxious to see if I could get rid of that phraseology altogether. Various other suggestions were made in connexion with employment and so on, but I came to the conclusion that we had better stick to the words "out -If and in the course of employment" which by this time had become clarified to a very great extent; at any rate, we knew what we were talking about.
Now some of your Lordships may ask—and I felt this very strongly—is it really capable of any qualification at all? This case used to be put to me, and I put it many times to myself. You have two men, one of whom slips on a piece of orange peel just outside the works gate, falls down and breaks his thigh. That is not an accident arising out of and in the course of his employment. The other man has precisely the same accident inside the works gate, and that accident would be arising out of and in the course of his employment. So those two men, who have met with very much the same disaster, are treated in quite different ways. I agree that that is an anomaly which we failed to get rid of, but if you consider the history of the matter I think you will come to the conclusion that it is quite impossible at this stage to get rid of it. Under the Workmen's Compensation Act, in war-time conditions, a married man with one child, who is injured by an accident arising out of and in the course of his employment, gets fifty-five shillings a week, whereas if he is injured by an accident not so arising he gets today very much less. Under the new social insurance scheme a single man would get twenty-six shillings, whereas a single man under these proposals will get forty-five shillings.
We could not afford, without making the contributions impossibly high, to bring the twenty-six shillings up to forty-five shillings. The alternative was to 9 lower the forty-five shillings to twenty-six shillings. That was, to my mind, the great weakness of Sir William Beveridge's suggestion. He wanted to deal with this problem by dealing in the same way with the first thirteen weeks after the injury, whether it was or was not arising out of or in the course of the employment, and he proposed, subject to a variation depending on the value of money, twenty-four shillings for a single man for the first thirteen weeks. You could not expect the workers to agree to that. Under the present system, they have a scheme provided for them to which they do not contribute directly at all, and from which they get very much more. They would say, with convincing logic to my mind, "Now you are asking us to come in and contribute directly. Are you really proposing that the compensation we get to-day—forty shillings for a single man for thirteen weeks—is going to come down to twenty-four shillings, or twenty-six shillings, or whatever it may be?" That is impossible.
I hope, if this country reaches once again that prosperity which we all desire, which of course will only come through the industry of its inhabitants, that in the fulness of time we shall be able to move this social insurance scheme up until it reaches or approximates to the level of the industrial insurance scheme; but I am not prepared to move the industrial insurance scheme down to fit into the figures which alone we can afford for a social insurance scheme.
Now let me say a word about the finance of the Bill. I hope we shall have none of that jeering which I have sometimes heard—I am sure we shall not in your Lordships' House—that "This is one of those ridiculous claims of nine-pence for fourpence," and so on. Of course, these benefits have to be paid for. Let us see how the figures stand. It is estimated by the actuary—and in this difficult and novel field he can do little more than make an instructed guess—that the amount of the contributions will be of the order of £30,500,000, and, following the normal principle, one-sixth of that money comes from the taxpayer, so that the other two sides, the employers and the workers, have to find £25,000,000; that is to say, they have to find something like £12,500,000 each. So far as the employer is concerned, that is very sub- 10 stantially less than he is finding to-day. That is one of the vices of considering this Bill apart from the other Bill. We are putting very heavy burdens on the employer in regard to social insurance. Your Lordships should understand that so far as the employer is concerned he is finding actually less in the way of premium for workmen's compensation than he is having to pay to-day. £12,500,000, then, is the amount of the contribution. The contribution for the man is eightpence, the man himself paying fourpence and the employer four-pence, and for the woman sixpence, the woman paying threepence and the employer threepence. The expenses, when the scheme is fully working, are estimated to amount to £32,000,000 a year, a deficit of £1,500,000. I said, "when the scheme is fully working," and it will be many long years before the scheme is fully working, before the full burden has to be borne. In the meantime the excess payments—for that is what they will be—will be funded, so that we shall be able to finance the full scheme at a later date. But even if we cannot, the ultimate deficit is equivalent only to one halfpenny extra contribution.
Your Lordships will see that the scheme provides for a quinquennial review by the actuary, who will, of course, report on the fund. The cost of administration is estimated to be £3,500,000, and as the expenses are estimated to amount to £32,000,000 you will see that the cost of administration is estimated to come to very little over ten per cent., which is a much more satisfactory figure than the fifty, forty or twenty per cent. under the existing scheme. We have rejected the idea of a levy on particularly dangerous industries. We are applying the law of averages to everybody. It is a fact that the bank clerk is very much less likely to sustain injuries than the miner, but the bank clerk and the miner both have to pay their fourpence in order that in this matter all can stand equally, because those men who are injured in the course of their work are really very much in the same position as the soldier who is injured in the course of his duty—they are the soldiers of industry.
Now I must, without undue length, say something about the details of the Bill. It is divided into some six parts. Part I deals with the question as to who is in, 11 who is to insure. The answer, broadly speaking, is everybody employed under a contract of service. But you must distinguish between a contract of service and an office. I do not suppose the Lord Chancellor or the Judges would be held to be employed under a contract of service; they hold offices. But there would be many border-line cases where it is very difficult to decide whether a contract of service is the governing document or not. In those cases the Minister decides, and there is an appeal to the Courts who can review, the Minister's decision.
I am sorry—I have always been sorry—that the self-employed person is not in the scheme. That is very hard, and there are many small people, working on their own account, who want this help just as much as the employed man. But they have no employer, and the whole system of a contribution by the employer and the employed person breaks down. At all stages of the Bill, under all Governments, this matter was most sympathetically considered, yet we all came to the conclusion most reluctantly that we could not take these people in. As to the benefits, I have told you that we adhere to the words "arising out of and in the course of employment," but we have modified the rigour of those words to some extent. If you look at Clause 7 (4) of the Bill your Lordships will see we have provided that if the accident takes place in the course of the employment it is presumed to have arisen out of the employment, unless the contrary is proved. Sometimes there is the case of a man who falls dead and it cannot be said whether the disease of the heart which caused the death was or was not brought about by something he was doing, because he, the only witness, is dead. Therefore we have put in something to deal with cases of that kind. Then we have said a man is to get workmen's compensation, even though he is disobeying instructions, as long as he is engaged on his employer's business. Clause 9 deals with the case where a man is travelling on a vehicle which is provided by his employer, even though he is not under an obligation to use that vehicle. Clause 10 deals with the position where a man is injured in meeting an emergency—whilst engaged in rescue work and that sort of thing.
12 As to the amount of benefits, the Bill differentiates between injury benefit and disablement benefit. Injury benefit is a benefit which is payable for the first twenty-six weeks, if disablement lasts so long. For a single man it is forty-five shillings; if the man has a wife, sixteen shillings is paid in addition, and for his eldest child seven shillings and sixpence, making a total of sixty-eight shillings and sixpence for a married man with one child. The other children, your Lordships will remember, are provided for under the Family Allowances Act. That is important, because no less than ninety per cent. of the cases are finished and cleared up within a period of twenty-six weeks, but if you have a case where a man is still incapacitated at the end of twenty-six weeks, then he is assessed for a disability pension. If his degree of disability is assessed at less than twenty per cent. he receives a gratuity and his case Is cleared off, but if it is more serious, he is assessed to a percentage of forty-five shillings, which is a one hundred per cent. payment. It has the great advantage that he receives that pension for life in an ordinary case, and if he can earn money that fact does not prejudice his pension. He still has every inducement to go to work to earn his own living and contribute to the general well-being. In certain cases there may be an unemployability supplement. Clause 13 provides for an unemployability supplement of twenty shillings. In bad cases where a man needs constant attention he can obtain an extra allowance for that, up to as much as two pounds a week. In normal cases it would be twenty shillings only.
Finally, the Minister has done something which I was not able to do; he has dealt with the case colloquially known to lawyers as "the engine-driver's eye case." Directly you depart from a basis of wages, you encounter this difficulty. There are certain cases, of which the engine-driver's eye and the compositor's finger are the classic examples. A compositor may lose the top of one finger, which would be a very slight injury to an ordinary man, but in the case of a compositor it would make it absolutely impossible for him to follow his trade. An engine-driver, who is earning good money as a highly-skilled man, may have an accident, involving the loss of the sight of one eye; for all ordinary purposes he would be all right, but he could never 13 drive an engine again. Therefore, in those particular hard cases, the Minister has provided, by Clause 14, that those people may get a supplement over and above that which they would normally get, amounting to as much as a quarter of the forty-five shillings, always provided that that does not bring them above the forty-five shillings which is the maximum.
The provisions as to death benefits are very complicated, and I should not be justified in detaining your Lordships in describing them. It is sufficient to say that generally what is provided is a pension and that the essential qualification, save in the case of a widow, is that the person receiving the pension should have been wholly or mainly maintained by the deceased person. In certain cases where the maintenance is less than mainly or wholly, there may be gratuities.
Part III of the Bill deals with the determination of questions, apart from the Minister's determination, which are in most cases subject to an appeal to the Courts. Medical matters, that is to say, the degree of disablement, are dealt with by a medical board consisting of not less than two doctors, and, by a medical appeal tribunal, consisting of a chairman and two medical practitioners. In legal matters, since the employer no longer has any interest or there is no insurance company having any interest to say that the man did not receive his injuries in the course of his employment, we have an insurance officer. It is his duty to decide whether the accident did or did not arise in this way. There is an appeal to the local appeal tribunal, which consists of representatives of employers and workers, and a chairman with legal qualifications. With leave, there is an appeal from that tribunal to the Commissioner. Leave may be given either by the local tribunal or by the Commissioner. The Minister is very anxious—and when I was Minister I took the same view—that we should try to get back to the original idea of trying to reduce legal formality so far as we can. Therefore, he does not propose, in the regulations he is going to issue, to allow legal representation before the local appeal tribunal except with the consent of the Chairman. However, if the case comes before the Commissioner—and before him there will be important cases on which other cases may turn—it is obviously right that the 14 legal representation should be allowed. Part IV extends the provisions of the Bill to industrial diseases. There is an immense amount of work to be done by the Minister in regard to this matter, particularly in regard to these dust lung diseases such as pneumoconiosis.
Part V deals with finance, administration and legal proceedings. Clause 57 provides for the setting up of an Industrial Injuries Fund. Clause 58 provides for quinquennial valuation. Clause 60 makes provision for an Industrial Injuries Advisory Council, which will consider all those matters, and give the Minister the benefit of its advice. Clause 61 deals with inspectors. The powers of an inspector certainly seem to be very formidable in the clause as drafted. That was the subject of a good deal of discussion in another place and the Minister promised he would look into it. In the course of our Committee discussions here, I shall bring in certain Amendments which, I think, will modify the rigour of the clause without, I hope, interfering with its essential effects.
The next part, Part VI, deals with miscellaneous and general matters. Clause 72 enables the Minister to institute research. I was very insistent on obtaining this power, and my colleagues were very ready to agree. I think it will be a good thing it the Minister is able to say, "This pneumoconiosis is proving too expensive: I am having to pay out an enormous amount in respect of it. I will get some scientists on to the job and see if they cannot devise a method of stopping the disease." I think that is of great value. Vocational training is dealt with in Clause 73. Under Clause 74 the Minister has power—if necessary, free of charge—to provide such things as artificial limbs and those articles which are needed by people who have been injured. Clause 81 deals with past cases. It is very hard that men who happen to have been injured before this Bill becomes an Act should find themselves less well provided for than those who receive their injury after the Bill has become an Act.
I had made some provision in Clause 81 for payments to supplement the allowances provided for in such cases. The Minister has made it plain that he is anxious to go still further, and I may be in a position—I cannot definitely promise anything now—at some later stage 15 to suggest to your Lordships an Amendment dealing with these past cases. My hope is to see if I can bring them more nearly into line with the present situation. I am not attempting to deal with the man whose case has been settled. I am talking about the man who is still continuing to receive a pension. The burden of providing the pension falls upon an insurance company, and it would not be right that we should relieve them of that burden. On the other hand if we are going to pay that man more handsomely, it would not be right that they should bear that extra burden. In that way, I think it is possible that something may be done.
One other matter upon which I would touch is the question of alternative remedies. At the time of the White Paper the Minister appointed—following a suggestion in the Beveridge Report—a Committee which is presided over by Sir Walter Monckton to consider alternative remedies. The fact is that though I am told that that Committee is to report shortly, I have not yet received their Report, and I do not expect it for another month. If that Report comes to hand in time, before we have finished the Committee stage of this Bill, I may be able to introduce an Amendment to deal with the situation. It would be, in many respects, more satisfactory to get the whole thing tidied up in this Bill if that can be clone. If, on the other hand, the Report is not ready I shall ask your Lordships to pass the Bill as it is, and we shall have to have another Bill to deal with the question of alternative remedies.
As I have said, in what, I hope, has been a not too lengthy review of the Bill, I can cordially commend it to your Lordships. I believe that it is a really important measure, and that it is conceived on absolutely sound lines, though, of course, there is much that may be said when we come to detailed consideration of the clauses. I can assure your Lordships that you will find us very ready to consider any practical suggestions and I have no doubt that the Bill is capable of improvement. I know that suggestions will not be made or considered in any Party spirit. This Bill is the product of men of good will working together for a common end, and I am sure that it is in that light that it will be dealt with by your Lordships. I commend it to your 16 Lordships and ask you to give it a Second Reading.
§ Moved that the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.14 p.m.
§ VISCOUNT SIMON
My Lords, this is a very important Bill affecting, I suppose, one third of the population. Perhaps if one were to confine oneself to adults, it would be true to say that it affects the greater part of the adult population of the country. I am sure that we are all extremely indebted to the noble and learned Lord, the Lord Chancellor, for the way in which he has moved the Second Reading, and for the explanation which he has given. Certainly, no Bill for which general support is sought could have been commended more felicitously or in more reasonable terms, and I would like to assure him, at once, on behalf of those who are around me, that we shall certainly do everything in our power to contribute to the passing of this Bill into law. We believe that by so doing we shall be joining in a very important reform—indeed, as regards the matter in hand, in almost a revolution. It is not, of course, true that the old system which is now going to be replaced by this Bill had not very good points, which may perhaps be acknowledged. But in fact to-day the provisions of the Workmen's Compensation Act, which is repealed, lock, stock and barrel, in the Schedule to this Bill, are really out of keeping with modern developments for dealing with State assistance, administered by the State, for those of our fellow-citizens who fall into misfortune of one kind or another.
Mr. Joseph Chamberlain's name should always be held in honour, because he was actually the inspirer and the author of the Workmen's Compensation Bill of 1897. It is worth while spending a moment to see how great was the change that was brought about at that time. The claim which a workman who was injured at work might have against his employer was limited before that time to the cases where he was able to prove, and prove affirmatively, that his injury was due to negligence for which his employer was responsible. Therefore, it was a complete answer before Mr. Chamberlain's Bill became law, for the employer to say: "I am very sorry that you have met with this disaster at work and while working for me. But it is not my fault, and, 17 as it is not, there is no question of my having, by force of law, to compensate you." That was a matter which was changed by the Bill of 1897, and it was a great and beneficent change. It treated the employer as being as much answerable, within the limitations of the Statute, for dealing with the case of an injured workman as if he was dealing with a case of injured machinery. He had to mend the machinery, and it was made equally his duty to do what he could to mend the injured workman.
That was a provision which effected an immense revolution in the relations between workmen and employers. It has been improved and amended by Parliament since, but, at this moment, it is the basis of the law on this particular subject, and when this new Bill is passed it will lapse into history and be swept completely out of the Statute Book. I was very glad to hear my noble and learned friend say, what I have long thought, that the first and possibly the principal advantage of the change was that you did not make the compensation which a man received depend upon an inquiry into his earnings. After all, when an injury is suffered in the home in consequence of a man being laid aside through an industrial accident it is a very hard-hearted and imperfect method to measure that injury by treating it as some portion of his earnings. Whether the income in the home is smaller or larger the things that have to be done to try to deal with the injury and help the injured man, within reasonable limits, are the same. Therefore, I mark it as the first and most important feature in this legislation that it gives the go-by altogether, when the injured man claims to receive benefit, to the questions: "How much were you earning?"—or, more strictly, "How much were you earning on the average in the course of the last so many years?"—"Have you allowed for times out of work?"—and all the other questions of that kind. I feel that it really does not matter what the earnings were of a man who meets with an accident arising out of and in the course of his employment when he was under contract of service.
The noble and learned Lord, when he replies at the end of the debate, will tell me if I am wrong, but I suppose a managing director is a person who is acting under a contract of service. I suppose the newly-appointed head of the 18 Coal Board may very well be acting under a contract of service, but I do not know. It will be some consolation to persons in that position to know that if they squirt the ink into their eye as they are signing a letter on behalf of the institution for which they are signing, they will be entitled to forty-five shillings a week. It is better to have that than to keep up this irritating and essentially unjust idea that a man should receive compensation based on what he is getting paid.
All of us who have known this subject at all—I claim to know it fairly well because I was called to the Bar almost immediately after Mr. Chamberlain's Bill became law and I have had much experience of this subject both as lawyer and judge—will mark a second change which this Bill tries to secure. Many an employer, when his workman is injured, might feel that he wanted to deal with him without taking every point of objection and deal with him as man to man. But, in the nature of things, under the system of workmen's compensation every employer in a big way has to insure. The insurance companies are very well-run bodies, and I must say in my experience generally have acted very fairly, though I have known of exceptions. Once the employer insures under the Workmen's Compensation Act and an accident happens, he has to hand the case over to his insurance company, and no feelings of his own can be allowed to influence the decision arrived at if he is going to have the advantage of the insurance for which he has paid.
That is a bad system. It does tend to harden the relations between employer and employee. It does tend to make the workman feel that he is being treated as though he were a mere machine instead of a being of flesh and blood. I know one of the main objects of this Bill—and one which the Government had in view when I was a colleague of my noble and learned friend, although my part was a very minor one—is to get rid as far as may be of that strictly legal view of the matter and to substitute, if we can, something which is more domestic and, some people would say, more human. Well, that seems to me to be very good. There are one or two considerations the other way. As things stand under the Workmen's Compensation Act the careless employer, the employer who brings upon himself constant claims because his 19 machinery is not properly fenced, or because his arrangements are carried out in a thoroughly careless manner, is liable to find an insurance company will turn on him and say: "If you have accidents like this we shall charge you a higher rate of premium." I do not myself see in this new Bill any provision—perhaps no provision is possible—aiming at securing that the employer who pays his four-pence a week has got any inducement to be careful. He might produce a very large number of claims, and I do not see any means by which he is to be restrained or kept in order. Perhaps it is impossible to do that.
There is another thing upon which I feel everybody may not agree, but it is my own conviction. I am not sure—and here I address myself to the noble and learned Lord on the Woolsack more particularly—that it is unimportant for the workman that the decision as to whether he is going to get benefits is to be arrived at in the first instance by a civil servant—largely, I suppose, as the result of a paper application. The decision should ultimately be only a few weeks later, but it might be more, and it would be handed to him on a piece of paper in which he will read whether he has got it or not. I speak subject to correction from those who know more about it, but I have the strong impression that there is a certain satisfaction which the workman derives froth seeing his case presented; from hearing the witness examined; from hearing the County Court Judge discuss it and argue it out. Very often he comes away saying: "I know that County Court Judge very well. He is a perfectly fair man and even although the case was decided against me, I can see why." I am sure he is more satisfied with that than he would be with receiving a letter marked "O.H.M.S.," without a stamp on it, and opening it to find out whether the insurance officer—one of a large number of hard-working upright men—has decided he should get it or not.
You cannot have all advantages in any scheme, and my own quite deliberate view, which I venture to press upon your Lordships' House, is this. Taken as a whole this Bill is an immense improvement on the existing arrangement. If I say one or two words on matters of possible criticism I hope that the noble and learned 20 Lord on the Woolsack and the House generally will not think I am criticising the Bill generally. This is a case where a good deal of responsibility falls on this House, and we must prepare ourselves to discharge it. First of all, there are alternative remedies. The Lord Chancellor, no doubt wishing not to occupy more time, did not spend very long in explanation of that point. It is familiar, of course, to some people but not, I think, to everybody, and if I may be allowed I wish to explain the situation which has to be faced and which has not yet been dealt with at all.
When a workman meets with an injury at his work there are many cases in which he may have a perfectly good claim against his employer for a lump sum by way of damages for negligence. A very good example is a failure to fence machinery. For example, take a case where the employer is prosecuted and fined in the Police Court because that piece of machinery which ought to be fenced was not, and where the man who has lost his fingers brings an action against the employer in the ordinary way in the Courts, because employers are answerable for their negligence. This Bill does not alter that in the least and, therefore, there are really two roads, either of which is open to him, or rather both of which are open to him. One is the road of applying for benefit under this Act, and the other is making a claim quite apart from this against his employer for negligence. That is a very well-known difficulty in this particular branch of the service of industrial protection. It is dealt with in the Workmen's Compensation Act—as it has been dealt with ever since the first Act—and it is usually described as the section which deals with alternative remedies. As Mr. Chamberlain thought it right and in the law as it now stands, as it has been made by Parliament, there is a limitation on the right of the injured person to pursue both roads, to Seek both remedies. The remedies are not cumulative, they are alternative. He may get his remedy by one road or he may get his remedy by the other if, of course, he can prove negligence.
One of the most difficult sections of the Workmen's Compensation Act (I think it is now Section 29 which some of us had to deal with) is the one which deals with alternative remedies. It is provided, for instance, in the present law, that if 21 the injured workman makes a mistake and goes against his employer for a lump sum of damages for negligence and fails, he can save his position and have an award made in terms of the Workmen's Compensation Act. That is quite right, though it is subject to the possibility of an order being made about costs, inasmuch as one action has already been fought. At present this Bill, though it professes to be, of course, a perfectly complete piece of legislation, consisting of these six Parts and a number of Schedules, contains a great gap. It is quite impossible to suppose that Parliament is going to pass it finally without dealing in some proper way with the question of alternative remedies.
I must say I was distressed to hear the Lord Chancellor hint at a possibility that this Bill would become law without the necessary new clause or clauses about alternative remedies being put in. That, I think, my Lords, has never been said on behalf of the Government in Parliament before. In the House of Commons the Minister of National Insurance expressed his regret that he could not already produce clauses about alternative remedies, but he used language which was quite plain. He anticipated and asserted that, of course, upon getting the Report of the Monckton Committee, these clauses would be inserted in your Lord-ships' House. In order that he might get a little support for that proposition, I recollect that he apologized to his supporters for having to use such an instrument. Now we are told by the Lord Chancellor that there is a possibility, or he hints that there is a possibility, that this Bill may reach the Statute Book without that being done. I think that would be a very wrong course. You certainly cannot leave it alone, and surely you must make a provision about this, whatever the reasonable provision is, before you repeal altogether the Workmen's Compensation Act, which does make such provision, and carry this new legislation which does nothing of the kind. Otherwise, the employer is really not going to be fairly treated. He is going to make his contribution of fourpence a week, and he is not otherwise going to get any benefit out of the Bill. It would be a very strange result if it were said: "Let the workman have both remedies without any restriction at all."
22 I see the difficulty in devising what would be right, and I suppose that is the explanation of why the Monckton Committee, which was appointed in July, 1944, has not yet reported to the Government about it. But is it not really right to say, with great respect to His Majesty's Government, that the responsibility is primarily theirs, and they cannot justify passing into law a Bill with this striking omission merely because they are waiting for somebody else to recommend to them what they ought to do? I say that in the most friendly way, but I do hope that what I am saying will commend itself to the judgment of the Lord Chancellor, because I feel convinced that if this Bill went on the Statute Book and became law with out such a provision, very great difficulties might hereafter arise. Sir William Beveridge was not so successful, I agree, in dealing with this part of the subject as he was with the rest in his great Report, but Sir William Beveridge's Report, which was issued long ago, included a chapter headed, "Problem of Alternative Remedies." I must say I think it would be only reasonable to ask the Government to offer us a solution of that problem before they seek to get the Royal Assent to this Bill.
The next point is about self-employed persons. I quite appreciate the sincerity with which the Lord Chancellor told us he would like to get such persons included. I quite appreciate the great difficulty that does exist. But does the House appreciate the full existence of the anomaly which this Bill is going to create if you do not bring what is called the self-employed person in? Take the instance of the village joiner, who is very often the village undertaker as well. He works on some piece of local building, fitting window frames—when he has the necessary licence—and perhaps he employs a mate, a single man, a workman whom he pays. They are working on a scaffolding, and the scaffolding collapses. The two of them meet with exactly similar injuries; each breaks his leg. Do your Lordships realize that the result of this Bill will be that the workman employed by this self-employed man will get forty-five shillings a week, whereas the self-employed man, incurring exactly the same risks and doing exactly the same work, will get only twenty-six shillings a week; and the only compensation he will have in addition will be that 23 he will have paid fourpence a week to help to insure his mate? Really, can that stand as right? Can it be right to say to the local builder and to the various people engaged in small trades, such as the local shopkeeper: "You are actually working at your trade side by side with one person whom you employ, and where you both meet with exactly the same accidents in exactly the same circumstances, one of you will get 45s. per week under this Bill and the other will get 26s."?
I thoroughly understand the difficulty in providing against it, but I think ingenuity ought to be sufficient to find some sort of remedy. The Minister in charge of the Bill in another place said he would be glad to consider it if he had representations on the subject. Well, the small shopkeeper, the small joiner, is not necessarily a member of some powerful trade union; but surely, my Lords, you will agree that he still has his rights, and he has a right to be dealt with on fair terms as compared with other people. It is not really true to say that this Bill is limited in its benefits to people who are employed on a contract of service. This Bill expressly covers, for example, a taxi-cab driver who is driving a taxi-cab on hire. He is not employed by anybody. He is expressly included. It includes share-fishermen who join in going out and bringing in a catch and who are not employed by anybody. It includes firemen. I am not sure that it does not include policemen. The question is: Cannot we justly ask in this House for further consideration for this particular class of person who it does seem to me under the present Bill is not being fairly treated? If he were his own workman he would get 45s. a week as a single man, another sixteen shillings if he had a wife, seven and sixpence for a child, and it may be, as the Lord Chancellor explained, another one pound because he is really so very much smashed up, and perhaps another two pounds because he needs to be specially attended to. Is it right to say to another man, whose only fault is that he is not actually employed under a contract of service, but who is doing exactly the same thing: "Oh no, you are not a person under contract of service. Therefore you must fall back on the 26s. a week"? I do not think it is fair.
24 Before I sit down I would like to say a word about the relation of the profession of the Law to this Bill. I my noble and learned friend on the Woolsack will forgive me—although he speaks with far greater knowledge of the Bill than anyone else in this House—I thought I detected him saying that the chairman of a local advisory committee would be a person of legal qualifications. I cannot find that in the Bill. We might move an Amendment in order to justify what the Lord Chancellor said but I do not think it is in the Bill. Indeed, it is very remarkable how scared the framers of this Bill seem to be of legal assistance in any quarter. It is true that they compel a certain amount of respect by adopting the phrase "an accident arising out of and in the course of his employment." That has been the phrase ever since the first Workmen's Compensation Act and if it is said that workmen's compensation has led to a good deal of litigation it is to be observed first of all that the number of cases otherwise disposed of is infinitely greater than the number litigated. Secondly, this phrase "an accident arising out of and in the course of his employment" has been one of the principal subjects of legal exposition. Many of us have had occasion to do our best to give it a clear meaning and I think the judges have done a great deal to clarify and simplify the essential considerations.
I should like to ask my noble and learned friend, if he intends to speak in reply, whether the insurance officer, and on appeal from him the local appeal tribunal, is going in any way to be guided by, or governed by, the decisions which have been laid down as to what does constitute an accident arising out of and in the course of employment. It would be a very great pity if these rules and principles were not observed. It would simply open the floodgates of endless confusion. On the other hand, if they are going to be observed might it not be as well to take the opportunity to include the help of those who know something about the subject? I quite understand that in merely trivial cases you do not want to have the interposition of specially trained legal practitioners. There is a good deal to be said for a domestic forum up to a point, but I think that the contemplated provision—it is not in the Bill—of regulations which are aimed at excluding professional 25 lawyers from appearing before local tribunals is ill-advised in the real interests of the public.
The conception which some people seem to take pleasure in expressing, that the professional man enters on needless, lengthy, technical and meaningless arguments, is in my experience without foundation. On the other hand it is perfectly certain that there are many cases in which a completely lay tribunal or lay commissioner—there is nothing about the qualifications of a commissioner either, in this Bill—may be accepted. I know it may be said that there is a regulation of this sort already to be found in the unemployment insurance regulations. It is a regulation to this effect, that during the consideration by a court of referees the claimant, insurance officer—any officer of the Ministry of Labour that the Minister may direct—shall be entitled to be present at the sitting of the court and that the claimant may be represented at the court by any persons not being counsel or solicitor authorized by him. Is that really a reasonable provision? I suppose that trade union secretaries carefully avoid being called to the Bar! One or two of the Under-Secretaries of the present Government have that distinction. If he were a private member of the House of Commons and an individual wished to be represented by him, he could be told, "You cannot do that. You are counsel or solicitor." These, after all, are the people who have received some training in this matter. It is really ridiculous to say here in the House of Lords that you do not in many cases put an applicant under a severe disadvantage because he is not entitled to have this particular form of service. The good lawyer is the least technical, but he is very often the person who sees what the case turns upon and puts the right questions in consequence, whereas I have heard people who have not had that ability spend a good deal of time asking questions which were not to the point. I hope I can have some assurance on that point.
I venture to make these comments because I know something of this subject—it has been of the greatest interest to me all my life—and I most warmly approve of this very great effort made by all Parties to improve the law on this subject. But I do not think that you will be doing all that you ought to do 26 in connexion with this Bill, technical as its appearance may be, unless in some of these matters you give your attention to securing means by which this instrument, on which we sincerely congratulate the Lord Chancellor, will effect its purposes in the best possible way. This is a great and valuable revolution. It may be, and I hope it will be, an influence for good in relations between employers and employees. You will not have them as opposed parties where one is injured and the other has got to pay. That is all to the good, but let us make it a conjoint effort, the best we can. If the Lord Chancellor should think any of the observations I have to make are of any value I hope he will receive them in the spirit that I intend, of a single-minded desire to improve this Bill.
§ 3.49 p.m.
THE MARQUESS OF READING
My Lords, in his attractive and welcome explanation of this Bill the noble and learned Lord on the Woolsack took the House sufficiently into his confidence to say that in its early stages he had asked to be allowed to produce some Bill. Anybody looking at the result will I think agree it is some Bill and he is entitled therefore to the credit for it. It is changing what has been now for a period of fifty years a most valuable part of our legal system, in removing the procedure under the Workmen's Compensation Acts and substituting a procedure which is quite obviously much more in consonance with the whole trend of modern social thought and legislation and therefore one which, as a matter of consistency and convenience as well as from inherent justice, ought to be adopted by Parliament. At the same time, although we are prepared to give this Bill a Second Reading, and indeed to welcome the general propositions on which it is based and the main system which it expounds, we also at a more convenient stage perhaps will decide to put forward some suggestions in concrete form as to improvements which might be made in Committee.
The greatest tribute I could pay in what I had been going to say to your Lordships is that it has already been said by the noble and learned Viscount who has just spoken and therefore that absolves me from going into any detail today, but I would specifically desire to reinforce as strongly as I can what he said on the subject of the contemplated omission 27 from this Bill up to the time when it actually takes its place on the Statute Book of any satisfactory provision with regard to the alternative remedy. That is going to leave the whole position so unsatisfactory that I do suggest to the noble and learned Lord on the Woolsack with all respect that some effort should be made to galvanize the Committee who are considering this matter into a little more urgent action. Alternatively I suggest, if such a regrettable course were necessary, that this Bill should bide its time until it is possible to incorporate in it a proper clause based upon the findings of that Committee, if it is necessary for the Government to wait until that Committee has reported before they come to any conclusion as to what is the right course to follow.
Another point made by the noble and learned Viscount, in respect of which I confess I feel very strongly, is the exclusion from this Bill of the owner of the one-man business, the master craftsman. We have had instances given. Numbers of them immediately come to one's mind. You may get a man under a contract of service with a great industrial company to receive £10,000 a year as chairman and managing director who in his room in the offices of the company sustains some injury arising out of and in the course of his employment, and who is therefore entitled to claim under this Act, In the course of that injury he may have caused some damage to the room and a master carpenter may be brought in to repair that damage. He may have the misfortune to suffer a similar injury in the same place. But although the chairman and managing director of the company is going to get forty-five shillings a week, he will get for an exactly similar accident in exactly the same place the sum of twenty-six shillings. I understand the difficulties in a contributory scheme of inserting a class who will not be primarily contributors, but at the same time I should have thought with the noble and learned Viscount that it would not outstrip the ingenuity of the Government to find some plan which might open rather wider the door of this Bill and let that class of man in. I hesitate to use what is at the present moment a highly inflammable phrase and suggest anything in the nature of "contracting in" of persons who are 28 not ex officio, so to speak, within the scope of this Bill, but it may at the same time be worthy of consideration whether some such scheme on those lines could not be devised.
The only other point I wish to deal with at this stage is the matter which is covered by Part III of the Bill, the Determination of Questions and Claims. The noble and learned Viscount has said there is no provision at the moment for the chairman of a local appeal tribunal to be a person of any legal experience at all, and indeed, although it is perhaps implied from the fact that difficult points of law are to be left to their decision, there is no actual provision that the Commissioners to be appointed under the Act shall be members of the legal profession either, although it may, as I say, be implied from the functions which are allotted to them. There was some tendency in another place rather to regard the history of the past years of litigation under the Workmen's Compensation Acts as a sort of lawyers' Bank Holiday. Well, there has been a great deal of litigation. Some of it has probably lasted a great deal too long, but on the other hand in the course of forty years of the application of these Acts a great many valuable decisions have been arrived at. I think it is not unfair to say that the law now is substantially clear on most of the main points of the Acts, and indeed that consideration has led the noble and learned Lord on the Woolsack to retain this famous and much-disputed phrase, over which the legal armies have swung back and forth for so many years, of the accident arising out of and in the course of employment.
I agree entirely that you want in the interests of the workman to get a decision as concisely and as expeditiously as possible and that you do not want to go on protracting the matter through an unnecessary number of Courts or tribunals. I say an unnecessary number. After all, under the Workmen's Compensation Acts the matter started first with the County Court Judge as arbitrator and then went direct to the Court of Appeal, and only in proper cases proceeded to your Lordships' House.
THE MARQUESS OF READING
By special leave. As I say, so many matters 29 under that Act have now been clarified. The number of cases which are still obscure is probably very small. If this Bill and the machinery that it will set up were doing what there was some indication in another place they were intended to do, and indeed to which the Lord Chancellor made some reference, if it set up machinery to decide claims by the process of a sort of fireside chat, there might be a very good argument for saying you want to get rid of the formal and perhaps formidable atmosphere of a Law Court and conduct it all nicely and comfortably over a table. But, although I do not want to go into detail at this stage, just think of what is going to happen under the Bill as it stands. If there is any question as to whether a man is a proper person to come within the Act, that goes to the Minister. If the Minister or the claimant is not satisfied, that goes to the High Court. If there is any question as to the injury, that goes to a medical tribunal. If there is still not satisfaction it goes to a medical appeal tribunal.
Other questions start with the insurance officer and proceed from him to the local appeal tribunal, and then, if there are difficult questions of law, proceed to be tried by three Commissioners: if there are not difficult questions of law, by one Commissioner. You have not got so simple a framework or so easy and swift a machine under the present plan as to say you can afford to dispense, in the interests of expedition and general friendly atmosphere, with any intervention by the Court. You let in the Court by way of an appeal being made to the Court from those questions which are left to the Minister's decision, and yet there is no appeal to the High Court from the decision of these one or three Commissioners whose business it is to try difficult points of law. And there is no indication at the present moment as to how far their decisions are to be binding on each other, on whom they are to be binding or whether they are to be binding on the local appeal tribunal. I do suggest that in the end the probability will be that there will be a very great confusion of decision amongst those various bodies which could be resolved if an appeal were allowed from those Commissioners to the High Court.
You want finality, and you will not get finality unless you get a decision of the High Court. We shall, in all probability, set down an appropriate Amend- 30 ment at a later stage. With those criticisms—and they are serious, and I hope the noble and learned Lord on the Woolsack will give them attention—we of course welcome this Bill as a long delayed but very proper attempt to bring the whole question of insurance against industrial accidents into line with the present trend of social legislation.
§ 4.1 p.m.
§ VISCOUNT MAUGHAM
My Lords, I desire only to add a very few words to those which have fallen from the previous speakers, and I have this excuse: that like my noble friend Viscount Simon I have sat in quite a large number of these cases. I have sat both in the Court of Appeal and in the House of Lords, and I have long been aware of the absolute necessity for fresh legislation to deal on a fair and equitable basis with the claims of workmen arising out of industrial injuries. For myself, I think the Bill on the whole is an admirable measure. It carries us a long way towards justice, and I agree with the encomiums which have been bestowed upon it.
I think it would be just, in order that the House may be aware of the position of practically all lawyers, that I should say that I entirely agree with what has fallen from my noble and learned friend Viscount Simon and my noble friend the Marquess of Reading, as to self-employed persons and as to the vexed question of alternative remedies. With regard to the alternative remedies, I cannot help thinking that it would be a completely new departure if the Legislature were to say, "We cannot at the moment state what the proper regulation should be on this question, and therefore we are going to omit all reference to it in the Act." I do not think the Legislature has ever taken up that standpoint. Although it is, of course, very desirable that we should have the advantage of a report on the matter from the Committee that has been considering it, there is a comparatively simple course which I think should be taken by this House and by the Legislature if the Monckton Commission has not yet reported. An Amendment should be accepted to the effect that a workman who has suffered an injury should have the option of proceeding under the Act of Parliament (as it will be) or of taking his proper steps against the employer. There really is no injustice in that. It 31 gives him an election, and until some better plan can be proposed I think it is fair and just. I venture to say that is far better than leaving the hideous gap which will be left if nothing is done in reference to alternative remedies.
The question of self-employed persons is, I admit, very much more difficult. I agree with what my noble friend the Marquess of Reading has just said, that it seems to be a terrible thing that in some of the cases which he has mentioned by way of illustration, the unfortunate owner workman can have no redress whatever. He may be ruined by an accident taking place. I venture to hope that the Government will find it possible to do something to meet the grave injustice of that case, but I would like to say, as a matter of fairness, that I know it is a very difficult point.
Then we come to the question of counsel and solicitors who are not to be allowed to help, and who are, as my noble and learned friend Viscount Simon has said, the only people who are really accustomed to deal with matters of this great difficulty and complexity. Here I will say, with complete good faith, as I am sure everybody will admit, that there are no cases more difficult and complex than some of the cases that have arisen in relation to workmen's compensation for injuries. Unless you have sat in the Court of Appeal or the House of Lords for days, listening to such cases, unless you realize the terrible doubts and differences that arise, unless you have studied the books which show how often the decisions in Courts below have ultimately been reversed in higher tribunals, you will hardly be able to realize the weight of the argument which I am now just mentioning to your Lordships as to the extraordinary difficulty of presenting some of these cases before a tribunal, with adequate arguments, unless you have spent a fair proportion of your life in studying the question. Therefore this is the last case in which, as I think, the advantages of having trained assistance should be taken away from the unfortunate claimants.
That is all I have to say, except one remark in reference to Clause 8 of the Bill. I agree that something like Clause 8 is necessary. It is a clause which deals with accidents happening 32 while acting in breach of regulations. I believe there is a real danger that one of the results of the Bill as it stands will be to lead to carelessness and recklessness on the part of workmen. I know very well that, after a long period of work, when people are tired and badly in need of a holiday, they often get reckless in reference to the regulations under which they ought to be carrying on their occupation. It really would be a lamentable thing if it were to be found that as a result of this Bill, which is intended to secure great advantages to workmen, there will result a larger number, and it may be a substantially larger number, of accidents than before.
My own impression is—and I hope it will be considered at a later stage—that if the accident really is due to complete recklessness on the part of the workman he ought to be deprived of a remedy, not in order to punish him, poor fellow, but in order to show the workmen as a whole that there is a necessity for the utmost care in the management of some of the industrial machines which are now in use for producing various goods. Although no clause that can be suggested would be perfect, I venture to think that in cases where there has been on the part of the workman, not a casual piece of forgetfulness but a deliberate disregard of some absolute provision made for the protection of himself and his fellow men, or complete recklessness, something should be done to exclude him from the benefit which the Act otherwise would give him. I feel that these observations are very largely Committee stage observations, but this Bill is so important and it is so desirable that we should all of us, on either side of the House, work together to improve it, if it be possible to do so, that that is my excuse for intervening in the matter.
§ 4.11 p.m.
§ THE LORD CHANCELLOR
My Lords, your Lordships will perhaps allow me to reply briefly to the observations which have been made. In general, I am grateful for the way in which the Bill has been received, although I must say that some of the criticisms are so far-reaching that, if effect were given to them, it would be very difficult to carry the Bill through.
With regard to alternative remedies, there really is no suggestion of the hideous map that has been referred to. 33 The Workmen's Compensation Acts do not come to an end on the passing of this Bill, but only on the appointed day. Quit obviously a very considerable time must elapse before the appointed day comes, because it is necessary to have the same appointed day for this Bill and the other Bill, and before the appointed day comes we must have legislation dealing with alternative remedies. I quite agree that it would be wrong to leave the employer in a position in which he could be shot at twice over for the same thing. The point is, shall we do it in this Bill (if we get the Committee's Report in time), or shall we wait and do it after-wards? In any case, it obviously has to be done before the appointed day comes. In Clause 88 of the Bill you will find it stated that the repeal of the existing Acts will be only as from the appointed day. I give your Lordships the assurance that we shall deal with it; the question is whether we deal with it in this Bill or in a separate Bill.
§ VISCOUNT SIMON
Do I understand that the appointed day for this Bill will be the same as the appointed day for the general Social Insurance Bill?
§ THE LORD CHANCELLOR
That was always the intention. The arrangements for cards, payment of contributions and all those things must go together. I do not want to commit the Minister, but our idea has always been that it is fundamental that the two dates must be the same. I can give your Lordships the assurance with regard to the alternative remedies that certainly the matter must be dealt with.
Then I come to the matter of the self-employed man. I know full well that all your Lordships have great ingenuity and a great knowledge of this matter, and I would very much like to see the proposals which you put forward. All I will say is that everybody who studied this subject started with the same idea, namely, that the self-employed man ought to come in, but subsequently came to the conclusion that he could not be brought in. I will go so far as to say that I believe that if you bring in the self-employed man yon will go a very long way towards destroying this scheme altogether. After all, this is an amendment, a modification or a redrafting, if you like, of the Workmen's Compensation Act. The self-employed man is not a workman employed 34 by anybody; he is his own employer. If you are going to allow the village joiner to come in—he is a small man and we have every sympathy with him—are you going to allow everybody to come in? Is this going to cease to become a Bill for workmen and is it going to extend to everybody? If so, the whole finance of the Bill must be considered again. The consequences of that, to my mind, would be far reaching. I can only say that we looked at it, those of all Parties and of no Parties, with the greatest sympathy, but we came to the conclusion that it could not be done. However, I am quite receptive about the matter. No doubt your Lordships who have spoken about this matter have given careful consideration to the way in which it can be done, and we will look at any proposals you make, but for the moment I am bound to tell your Lordships that, having lived with this Bill for a good many weeks and months, and having discussed this very matter with colleagues of all shades of opinion, this is the conclusion to which I came. Therefore, although I will certainly keep an open mind, I am, quite frankly, not very hopeful about the proposals which were made but I shall look with interest to see what your Lordships may suggest.
Then I was asked a question about the chairman of the local appeal tribunal. If I said that the Bill provided he was to be a legal chairman then I was wrong. The Minister said quite plainly in another place that he contemplated that the chairman would be a legal chairman, and I do not suppose it really matters to him very much whether it is in the Bill or not. I suppose his answer would be that there might be some rather odd and peculiar case in which he could not get a suitable lawyer and therefore would have to get somebody else. However, in 99 cases out of a hundred he would certainly want a lawyer, and I gather that he would certainly be guided by the jurisprudence which has arisen with regard to what is an accident arising out of and in the course of employment. In principle, therefore, I concede that it is desirable to have a legal chairman.
With regard to representation before the local tribunal, I am a lawyer myself and I have spent all my life in the law. It was when I became Minister of National Insurance that, for the first time, I got out of the law and was able to look at 35 it from a rather different point of view; at any rate, I learned how other people looked at it. There is no point on which the unions and the employers are more insistent than that this thing should be taken out of the legal atmosphere. They say "If one side has a lawyer before the local tribunal the other side will say, 'He has got a lawyer: I must have one too' In that way lawyers will become common and people will say 'I have got to have a lawyer'".
§ THE LORD CHANCELLOR
The other side would be the Minister, I agree. However, my noble and learned friend knows very well that he and I in our young days have often heard a solicitor say, when there has been a solicitor on one side and counsel on the other, "The other side has got counsel; I did not know they were going to do that. Please may I have an adjournment to get counsel on our side?" The sort of idea is that if you have counsel on one side you must match him on the other. I am not saying it is right; I am only mentioning the representations that were made to me. Perhaps we might meet the difficulty in the Committee stage. I hope we shall not, as a rule, allow legal representation before the local tribunal, just as I hope we shall always allow it before the Commissioner, but I think there may be exceptional cases in which representation before the local tribunal is necessary. I suggest that it is a matter which might well be left to the chairman of the local tribunal, who might be asked in any particular case: "This is a difficult point on which we want Mr. So-and-So of counsel. May we be represented by counsel?" Then he would say "Certainly you may do so." If the other side, the insurance officer, wanted legal representation, he could have it too. That is a possible way out of the difficulty which we will certainly consider.
As to the last point which was raised by the noble and learned Viscount, Lord Maughan, I find myself very much against the idea that we should say that, because a man had been reckless and had thereby suffered some frightful injury, he should be deprived of all remedy. I think that would be a most retrograde step. My recollection is—I have not looked it up.— 36 that even to-day where the injury results in serious or permanent disablement you allow the worker compensation although the accident was brought about by his serious and wilful misconduct. To say that in no case where there has been recklessness is there to be compensation would be, I think, a most unfortunate step.
§ THE LORD CHANCELLOR
If I misunderstood the noble and learned Viscount, I am sorry. I understood the proposition was this, that you ought to lay down a firm rule that where an accident was caused by recklessness you were going to deprive the worker of the benefits under the Bill. If the noble and learned Viscount did not say that I apologize for having misunderstood him. But I think that that, at any rate, would be a retrograde step, and I would be very sorry to see it taken. I do not believe that a worker is restrained from recklessness—which unfortunately it does happen that he is sometimes inclined to, particularly at the end of the day—by the thought that: "I must be very careful, because if I do this, that or the ether, I shall not get compensation." I do not believe that that is the proper way of looking at it. However, if the noble and learned Viscount puts down an Amendment to deal with this, I shall certainly give it most careful consideration. I am very grateful to your Lordships for the support which you have given to this Bill. I believe that it is a very real and very valuable reform.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.