§ 4.36 p.m.
§ Amendments reported (according to Order).
§ Clause 1 [Alteration of composition of National Coal Board]:
§
THE PAYMASTER - GENERAL (LORD MACDONALD OF GWAENYSGOR) moved, after subsection (1) to insert:
(2) The persons from amongst whom the members of the Board are by subsection (3) of section two of the principal Act required to be appointed shall include persons appearing to the Minister to be qualified as having had experience of, and having shown capacity in, the coal-mining industry.
§
The noble Lord said: My Lords, the purpose of this Amendment is to carry out an undertaking I gave to the noble Lords, Lord Rennell and Lord Hawke, on the Committee stage. I think I carry out that undertaking almost word for word. The noble Lord, Lord Rennell, said then:
My intention was only to ensure that among the categories of persons from whom the Minister should choose shall be included people who have experience of the coal-mining industry.
§
The noble Lord went on to say:
Something analogous has been included in the other nationalisation boards, and I cannot see why the Minister should hesitate to include such a provision in this Bill.
This Amendment includes the provision asked for on the Committee stage by the noble Lords, Lord Rennell and Lord Hawke. I beg to move.
§
Amendment moved—
Page 2, line 6, at end insert the said subsection.—(Lord Macdonald of Gwaenysgor.)
LORD RENNELLMy Lords, I would like to thank the noble Lord. The Amendment does, in fact, include the words I wanted. I do not know whether I am in order, but the next Amendment 1179 has a bearing on this. I should have thought it would have been easier to include in that Amendment a provision for a minimum number of people with experience in the coal industry to be given seats on the Coal Board. As we are to discuss that on the next Amendment, I think I had better leave it there. I again thank the noble Lord for having included in the Bill an Amendment which carries out the view I expressed.
§ On Question, Amendment agreed to.
§
LORD RENNELL moved to add to the clause:
(4) The Minister shall so exercise his powers under the principal Act and this Act that of the whole number of members of the Board there shall be at least three members who shall seem to him to have had lengthy practical experience of the coal mining industry.
§ The noble Lord said: My Lords, we now come to the second point which was raised during the Committee stage—namely, the inclusion of a minimum number of persons of the category described in the Amendment to which we have just agreed. At the time this was discussed in Committee, I think we were all agreed that it was unlikely that the Minister would fail to include on the Board people with a knowledge of the coal industry. But we on this side of the House felt that there was no reason why an obligation should not be put on him to include a minimum number, especially having regard to the fact that the membership of the Board is now being increased under this Bill from eight to eleven. Therefore, the Amendment which stands in my name provides that at least three out of eight, or out of eleven, shall be persons having experience of the coal mining industry, which seems a very modest request to make. I beg to move.
§
Amendment moved—
Page 2, line 13, at end insert the said subsection.—(Lord Rennell.)
§ LORD MACDONALD OF GWAENYSGORMy Lords, I am somewhat surprised to find this Amendment moved by the noble Lord, Lord Rennell. He rather emphasised at the Committee stage that analogous provisions were made regarding other nationalised industries. That argument certainly does not apply in this case. In none of those industries was a specified 1180 number given. I should have thought he would be satisfied with the previous Amendment. If it is stated that three members must be connected with the mining industry, it may militate against the policy of the present Minister or some future Minister. I think there is an inclination to reduce the number of full-time members and to increase the number of part-time members. If the present Minister decided on a policy to reduce his full-time members to five, he would certainly prefer that three from the industry should be full-time members; and I think that three out of five would be out of all proportion. It may be he will have some part-time members, but I can assure the House that they would be very few.
LORD HAWKEMy Lords, before the noble Lord sits down, may I ask a question which may facilitate matters? Of the existing Board Lord Hyndley and Mr. Ebby Edwards come within that category. Are there any others?
§ LORD MACDONALD OF GWAENYSGORThere is Sir Eric Young from the management side, and also Sir Robert Burrows. Now we have four, which indicates how much in agreement the Minister is with the two noble Lords. I would not like to do anything which might lessen the number of full-time members. I am quite sure that to insert that three members must be from the industry would be undesirable.
LORD HAWKEMy Lords, this Amendment has all along been put down not so much to secure the precise object mentioned, but to give an opportunity for some little debate on the composition of the Coal Board in general. We on this side of the House, and myself in particular, have no wish to harry the Minister personally on this matter, but we do wish to harry him into doing his duty. We feel, and have felt for a long time, that his duty primarily consists in having a thorough spring clean of Hobart House. We could have put Amendments on the Order Paper, and even carried them, which would have necessitated his taking brave and strong action in that citadel. But we have no particular wish to go to those lengths, and we do not intend to press this Amendment. However, I would like to ask the noble Lord if he will convey to the Minister the 1181 strong wishes of this House that he should do his duty manfully, because the fate of England depends on his doing it, and that quickly.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I shall nave no hesitation in doing that, but I do not think it is necessary, particularly in the case of the present Minister.
LORD RENNELLMy Lords, I am grateful for what the noble Lord has said. I do not want to press this Amendment, but I do feel that future intentions about the size of the Board which are not contained in the Bill have no real bearing on the composition of the Board to-day. Having said that, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Termination of certain long-term contracts transferred to the Board]:
§ LORD MACDONALD OF GWAENYSGORMy Lords, this is also an Amendment which carries out an undertaking and which I hope will be accepted. It will be remembered that, during the Committee stage, the Lord Chancellor himself gave certain assurances, but despite those assurances I think some doubt was left in the minds of the Opposition. I would like to include in my remarks the Amendments which follow in my name—those to page 2, line 35; page 2, line 36; page 3, line 21, and page 3, line 23. The purpose of this Amendment is to remove any doubts which may exist regarding the undertaking given by the Lord Chancellor at the Committee stage. I think the Amendment which I am moving helps to clarify the position. I beg to move.
§
Amendment moved—
Page 2, line 32, leave out ("This section applies to provisions of any") and insert ("Where a").—(Lord Macdonald of Gwaenysgor.)
§ VISCOUNT SWINTONMy Lords, I think it is convenient that we should discuss all these Amendments together, and I am much obliged to the noble Lord and the draftsman for the skill they have displayed in this matter. It really is a question of expressing what we mean, because, as the noble and learned Viscount on the Woolsack said last time, we are quite clear upon three things: first, that a contract will be determined 1182 only if it is practically impossible to carry it out—there is no question that it can be determined because it is commercially inconvenient. Upon that we are quite agreed. The second point upon which we were agreed was that if a contract were determined, the Board must determine the whole contract and should not pick and choose.
There was considerable technical difficulty as to whether the words expressed that, because the language was "if the terms included." As this Bill is drafted, and as I read these Amendments—it is a little difficult to follow them—it does make it perfectly plain that, whether the provisions of the contract form part of those clauses of the contract which include the terms, or whether they are in some separate part of the contract, what has to go is the whole of that contract in so far as it subsists between the Coal Board and the party to whom the notice is given. Of course, it cannot be terminated for commercial convenience. I would suggest that it is desirable to add the Amendment which stands in my name on page 2 of the Marshalled List to Lord Macdonald's Amendment to page 3, line 23, and for this reason. He says in his Amendment:
whereto the parties were … in no way connected (whether directly or indirectly) with each other apart from the contract; and in the case of contract,and so on. Now I can quite understand that he wishes to exclude cases—we are dealing with the question of arm's length cases—in which the party to the contract in fact controls the company. I do not use the word "control" in the narrow sense, of having 51 per cent. of the shares; I mean practical control—it may be with 49 per cent. or 40 per cent. On the other hand you might have a person having quite a small interest, perhaps 5 per cent., which obviously would not give him control. A person with only that interest so far as being at arm's length concerned would obviously be independent. Yet I think that the noble Lord's Amendment, as drafted, would embrace not only what we both want to embrace, the person who had control of a company, but somebody who had only a very small interest in the company and therefore, for the purpose of making contracts, was completely in dependent. I do not know 1183 whether the noble Lord has considered that. I have had my Amendment on the Order Paper for a day or two, and I should like to know whether or not I am right. It is entirely a question of finding the right language to express our common intention.
§ LORD MACDONALD OF GWAENYSGORI am sure there is no doubt as to the common intention, but we thought there was some possibility of confusion if the noble Viscount's words were used; and we felt that our words covered the point rather better than his.
§ VISCOUNT SWINTONThis is one of the disadvantages of having to deal with a complicated piece of drafting. The noble Lord evidently agrees with me that we do not want to rule out the person who has quite a small interest. In actual fact, the matter cannot arise except in the case of a company. Where a contract is made between the Coal Board and the company, the company are virtually controlled by the interested parties; but what would happen where a person has only a very small interest in the company? Would that be covered by the noble Lord's words?
§ THE LORD CHANCELLORMy Lords, perhaps I may be allowed to say a word here, because otherwise my noble friend would be breaking the rules of the House on Report stage. I feel that we ought to be able to reach a compromise. I do not want to hit at the 5 per cent. man, and if my words suggest that, it is certainly not my intention. I do not like the word "independent." Suppose that one man owned all the shares in company A, and all the shares in company B. Company A and company B are quite independent of one another, but are controlled by the one man. That is obviously a case we must consider. I suggest that we might be able to deal with it by having some such words as "not connected in any material degree" or "not connected to any substantial extent." We are able in this House to put down an Amendment on Third Reading, and I will see whether that meets the noble Viscount's point. If so we can put down an Amendment on the Third Reading and deal with the difficulty in that way.
§ VISCOUNT SWINTONMy Lords, I am very much obliged to the noble and learned Viscount, and am content to leave myself in his hands in the matter.
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this Amendment, which is consequential.
§
Amendment moved—
Page 2, line 35, leave out ("being") and insert ("contains").—(Lord Macdonald of Gwaenysgor).
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, this also is a consequential Amendment. I beg to move.
§
Amendment moved—
Page 2, line 36, leave out ("or include terms which provide").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this further consequential Amendment.
§
Amendment moved—
Page 3, line 31, at end insert ("this section shall apply to all the provisions of the contract which have effect as mentioned in paragraph (b) of this subsection").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this Amendment.
§
Amendment moved—
Page 3, line 23, after ("contract") insert ("whereto the parties were, immediately before the primary vesting date, in no way connected (whether directly or indirectly) with each other apart from the contract; and in the case of a contract").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this consequential Amendment.
§
Amendment moved—
Page 3, line 23, after ("services") insert ("this section shall not apply to provisions thereof").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
1185§ LORD MACDONALD OF GWAENYSGORMy Lords, this also is a consequential Amendment. I beg to move.
§
Amendment moved—
Page 3, line 24, leave out ("the provisions") and insert ("they").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this further consequential Amendment.
§
Amendment moved—
Page 3, line 24, leave out ("or include terms which provide").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, I beg to move this Amendment.
§
Amendment moved—
Page 4, line 8, at end insert ("Provided that the Board shall not determine the operation of the provisions of a contract on the ground only that the financial terms thereof, or any of them, are, or may become disadvantageous to them").—(Lord Macdonald of Gwaenysgor.)
§ VISCOUNT SWINTONMy Lords, I am obliged to the noble Lord for inserting this Amendment which, I think, makes quite clear what the intention is.
§ On Question, Amendment agreed to.
§
LORD MACDONALD OF GWAENYSGOR moved, in subsection (4), after "question" to insert:
whether provisions of a contract with respect to which the Board have served a notice under subsection (2) of this section are provisions to which this section applies or.
The noble Lord said: My Lords, for all practical purposes, these Amendments are consequential on a previous Amendment. It is perfectly clear that, under the Bill as it stands at the moment, the only question for the arbitrator is the amount of compensation and, in the unlikely event of there being a dispute whether the clause applies to a contract or not, it goes to the courts. However, there has now been introduced a qualification that the clause does not apply to contracts
whereto the parties were immediately before the primary vesting date in no way connected (whether directly or indirectly) with each other apart from the contract.
1186
It would seem convenient that any question arising on that point should go to the arbitrator, and so, by the Amendment to line 30, it is provided that any question whether the provisions of a contract are provisions to which the section applies are determined by arbitration under the principal Act. I beg to move.
§
Amendment moved—
Page 4, line 30, after ("question") insert the said words.—(Lord Macdonald of Gwaenysgor.)
LORD HAWKEMy Lords, we again have to thank the noble Lord for meeting us in this matter. This appears to meet the point raised in our preceding Amendment to paragraphs (b) and (c). We are much obliged for the consideration given to us.
§ On Question, Amendment agreed to.
§ LORD MACDONALD OF GWAENYSGORMy Lords, the proposed subsection (5) again is consequential. It deals with the case where that question arises and the time specified for the termination of the contract is reached before the arbitrator has determined the dispute. We can see a difficulty arising, but this Amendment enables the arbitrator to suspend the operation of the notice pending the determination of the question and until, he has completed his work. I beg to move.
§ Amendment moved—
§
Page 4, line 42, at end insert—
("(5) Where the Board serve a notice under subsection (2) of this section with respect to provisions of a contract, and there is referred to arbitration under the principal Act the question whether the provisions are provisions to which this section applies, and the question is not determined before the date specified in the notice, the operation of the provisions of that subsection relating to the frustration of the contract or so much thereof as is required to be treated as being a separate contract shall be suspended pending the determination of that question, and if the arbitrator determines that the provisions of the contract are provisions to which this section applies he shall substitute for the date specified in the notice such later date as he thinks fit (whether within the period of two years mentioned in that subsection or not) and the said provisions of that subsection shall thereupon have effect accordingly.").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.
1187§ 5.3 p.m.
§ Clause 4:
§ Superannuation, &c., rights
§ (2) Subsection (2) of the said section thirty-seven (which provides that, in the case of persons who have been in employment in or in connection with coal industry activities or transferred allied activities before the primary or other relevant vesting date, the regulations to be made for the purposes of subsection (1) of that section shall be so framed as to secure, amongst other things, that where an expectation of accruer, whether as of right or under customary practice, of any particular benefits in favour of any such person, or in favour of another person by reference to his employment, ceases or is prejudiced by reason of his ceasing in consequence of the passing of that Act to be employed by his previous employer or to be employed in the activities aforesaid, the same benefits, or substituted benefits not less advantageous, shall be provided for under the regulations), shall be deemed to have been enacted with the omission of the words "or an expectation of accruer (whether as of right or under customary practice) of," but the said regulations shall be so framed as to secure that where, in the case of a person to whom the said subsection (2), as amended by the foregoing subsection, applies, such an expectation as aforesaid ceases or is prejudiced by reason of his ceasing in consequence of the passing of the principal Act to be employed by his previous employer or to be employed in activities to which paragraph (a) of that subsection, as so amended, applies, there shall be provided in his favour or in favour of another person by reference to his employment, fair and reasonable compensation for the cesser of or prejudice to that expectation, being compensation ascertained by reference—
- (a) to the period of employment to service wherein that expectation was ascribable; and
- (b) (except where the benefits expected to accrue would not have been ascertained by reference to emoluments enjoyed by him), to the emoluments enjoyed by him during that period:
§ Provided that this subsection, so far as it relates to the framing of regulations, shall have effect subject to such limitations as may be prescribed for meeting cases in which any such expectations as aforesaid may have been created, otherwise than in the ordinary course, in connection with any provision made by the principal Act or with any anticipation of the making of any such provision.
§
THE LORD CHANCELLOR moved, after subsection (1) to insert as a new subsection:
(2) The power conferred by paragraph (c) of subsection (1) of the said section thirty-seven to provide for the continuance, amendment or revocation of existing schemes or other arrangements for the provision of pensions, gratuities or other like benefits and of trust deeds, rules or other instruments made for the purposes thereof, and for the
1188
transfer or extinguishment of liabilities under, and the transfer or winding up of funds held for the purposes of, any such schemes or arrangements shall be exercisable in relation to schemes or other arrangements for the provision of such benefits in favour of—
or in favour of other persons by reference to the employment of such persons as aforesaid, to trust deeds, rules or other instruments made for the purposes of any such schemes or arrangements and to liabilities thereunder and funds held for the purposes thereof, but shall not be exercisable in relation to any other schemes or arrangements or instruments, liabilities or funds.
§ The noble and learned Viscount said: My Lords, this proposed subsection clarifies the meaning of the provisions of Section 37 (1) (c) of the 1946 Act which, your Lordships will remember, is the section which relates to the amendment or revocation of existing pension schemes or arrangements and the transfer or winding up of funds held for the purposes of those schemes or arrangements. Regulations under the sub-paragraph provide in relation to schemes wholly for the benefit of persons taken into the Board's employment for the transfer of the funds of the scheme and its winding up; in the case of schemes relating partly to persons who are now the Board's employees and partly to other persons, the schemes are split so that the Board acquire "transfer values" relating to persons who have become their employees.
§ The words of Section 37 (1) (c) of the 1946 Act, if taken literally, would authorise regulations to require the transfer of some funds from some wholly separate company—for example, the Imperial Tobacco Company—if one of their employees who had never been employed in or in connection with coal industry activities were taken into the service of the Board, and, though it may be that some limitation should be implied, for example that the powers are limited to persons whose pension rights had to be safeguarded under Section 37 (2), there is at least no certainty that the words would not be held to mean what they say or of the nature of the limitation, if any, 1189 which should be implied. Therefore, by this Amendment, the powers are limited to schemes relating to persons specified in paragraphs (a) and (b).
§ The persons covered by (a) are those to whom Section 37 (2), as amended by Clause 4 (1), applies—that is to say, persons whether taken into the service of the Board or not who have been in employment in, or in connection with, coal industry activities or transferred allied activities and were employed by the persons specified in Clause 4 (1). Paragraph (b) covers, in addition, persons taken into the Board's employment before the coining into operation of the Bill who had been in employment in, or in connection with, those activities but were not employed by the persons specified in Clause 4 (1) of the Bill. Paragraph (b) is needed because such persons were, and are until the Bill becomes law, within Section 37 (2) of the 1946 Act and their rights under that subsection were accordingly taken into account in settling their pension rights in the Board's service. Accordingly, it would appear proper that they should not be excluded from the regulations which provide for their transfer values to be transferred to the Board. I beg to move.
§
Amendment moved—
Page 5, line 27, at end insert the said subsection.—(The Lord Chancellor.)
§ VISCOUNT SWINTONMy Lords, we are all grateful to the Lord Chancellor for having noticed this, for dealing with it so effectively, and for having removed from the Minister any such predatory temptation to which he may be open!
LORD HAWKEMy Lords, I hope that the action of His Majesty's Government at this late stage will bring home to possible victims, such as the company instanced by the noble and learned Viscount on the Woolsack, the fact that there is a use for the leisurely proceedings of a Second Chamber!
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved, in subsection (2), to add to paragraph (b):
and (in such cases and to such extent as may be specified in the regulations) taking into account, as regards the amount thereof, any loss of benefits which might have been expected to accrue by virtue of employment after the expiration of the period aforesaid.
§ The noble and learned Viscount said: I tried to make it clear in Committee that, in assessing compensation for cesser of a person's expectations of pension, we did not intend to ignore that part of his expectation attributable to future service. In point of fact, the schemes established by the National Coal Board with the Minister's approval do take account of future service expectations. Thus, the principle of taking account of future service in assessing expected pension is not, and never has been, an issue between us. By this Amendment, that principle, already recognized in the schemes approved by the Minister, is given formal expression in Clause 4 (2). I hope that this fairly meets the view, held by some of your Lordships, that the matter should be dealt with in the Bill and not left entirely to the Coal Board's schemes. It may be that your Lordships will desire to criticise these words, but that, at any rate, is the intention they have. I hope that they carry out the result of the discussions and the undertakings which we gave on the last occasion. I beg to move.
§
Amendment moved—
Page 6, line 12, at end insert the said words.—(The Lord Chancellor.)
§ VISCOUNT SWINTONMy Lords, I am much obliged to the noble and learned Viscount the Lord Chancellor. We have now got this into a narrow compass. It is common ground that the expectation is to be taken into consideration in all cases. The Lord Chancellor put that quite plainly last time. I do not at all dissent from him that, whoever has to assess this, whether, in the first instance, it be the Ministry or the Board, or, on appeal, the referee, it will be better if he has some yardstick. I was anxious lest, by inserting in the Bill that yardstick, which must necessarily be a yardstick in reference to the past, we were to give the recipient of the compensation something only for the past and not for the future. The Lord Chancellor made it plain last time that that was not intended, and that everybody who had a hope for the future would have that hope fairly assessed. This Amendment is pure drafting, and the only question I want to ask the Lord Chancellor is this. The Amendment says:
in such cases and to such extent as may be specified in the regulations.1191 I am quite certain the Lord Chancellor does not want to cut anybody out. He invited us to consider the drafting of the Amendment. Suppose that we had these words, would that not enable the regulations to select which persons with an expectation should receive compensation and exclude others? I know that that is not the intention, and it is a question of the best way of making clear that there is no power in the regulations to exclude anybody with an expectation as laid down in Section 37 of the principal Act. I do not know whether or not the Lord Chancellor can answer that point now. That is why I suggest that in the same line—I suppose it would follow his Amendment—we should insert my suggested paragraph (c), the next Amendment on the Order Paper, which is to this effect:(c) the benefits which might have been expected to accrue if he had not ceased to be employed as aforesaid.We want to make it quite clear that there is no power to exclude under the regulations, and I would like the Lord Chancellor's view in regard to the best way to achieve that end.
§ THE LORD CHANCELLORMy Lords, I propose to put down an Amendment on Third Reading on that other matter and rather than detain your Lordships now on this matter, I think I had better take the opportunity of looking at it to see whether I can devise some Amendment that will meet the noble Viscount's point. It is not my intention to cut anybody out. On the other hand, I feel that I must be able to give more or less detailed instructions to these unhappy people who have to decide this question. If it is left completely at large, I fear that I shall have great difficulty from the fact that there will be such divergencies. The only object I have here is to try to formulate some regulations—a difficult task—so as to reduce to the narrowest limits any room for divergence. If two people in comparable circumstances go before two referees, one might get £1,000 and the other £200, and there would be great heart-burning. Although I do not want to jockey anybody out of his entitlement, I want to see whether I can canalise the position in my regulations so that I do not get these divergencies. I would suggest to the noble Viscount, if he is content, that 1192 we leave it at this for now, and I will see whether I can go a little further to meet him. I do not promise.
§ VISCOUNT SWINTONMy Lords, I am content to do that. We mean the same thing—namely, that nobody is to be cut out. I think we should therefore accept his Amendment now, and perhaps he would rather I did not move my next Amendment, which he can consider between now and Third Reading, with a view to seeing whether it is right or whether something else would be right.
§ On Question, Amendment agreed to.
§ VISCOUNT SWINTON moved in paragraph (b), of subsection (3) to omit "satisfies the requirements of the regulations" and to insert, "is fair and reasonable." The noble Viscount said: My Lords, this Amendment and the three which follow all go together. They also deal with expectation, and they attempt to bring the powers and duties of the referee exactly into line with the Government's new subsection (3) (a) which we passed on Committee stage last week, and which directs the referee as to his duties with regard to rights. Unless we insert the Amendments standing in my name, I do not see how he can do that. He is not given a corresponding direction as to how to deal with expectation. It does not exclude the yardstick which the Lord Chancellor is going to lay down in his regulations, but if these Amendments are made your Lordships will see that the two cases, rights and expectation, will be brought exactly into line.
As I propose in my Amendment, subsection (3) (b) would read in this way:
in a case where an expectation of accruer of any particular benefits in favour of a person to whom the said subsection (2), as amended as aforesaid, applies, or in favour of another person by reference to his employment, has ceased or been prejudiced as aforesaid, whether compensation provided in pursuance of regulations so made is fair and reasonable"—
that is exactly the same as the Government Amendment on Committee stage—
and upon a reference under a provision of regulations having effect by virtue of this subsection, the referee or board of referees shall determine what benefits or compensation must be provided in order to satisfy the requirements of the principal Act or this Act and it shall be the duty of the person charged by the regulations with the provision of the benefits or compensation to give effect to the determination.
1193
I hope that I have explained the matter reasonably intelligibly. I am advised that the Amendments would bring the position with regard to compensation exactly into line with what the Government in Committee instructed the referee to do with regard to rights. I beg to move.
§
Amendment moved—
Page 7, line 7, leave out from ("made") to the end of line 8, and insert ("is fair and reasonable").—(Viscount Swinton.)
§ THE LORD CHANCELLORMy Lords, I am going to look at this clause to see where we are, because I do not think this will do. After all, there are two things you can do. First, you can leave it to the arbitrator, and say, "Give to this man in respect of his rights and his expectation that which you consider fair and reasonable." The drawback is that if you do not give him directions in regard to that, you will get all sorts of divergencies. The alternative is to have regulations. Of course, if you have regulations the arbitrator has to comply with the regulations, and although we hope that what is arrived at will be fair and reasonable it is no good combining the two in this way. Your Lordships will see that what we have provided is this (I am referring to paragraph (b) at the top of the page):
in a case where an expectation of accruer of any particular benefits in favour of a person to whom the said subsection (2), as amended as aforesaid, applies, or in favour of another person by reference to his employment, has ceased or been prejudiced as aforesaid, whether compensation provided in pursuance of regulations so made satisfies the requirements of the regulations …If you are going to have regulations, as is the case here, and are to do it in that way, then the task of the referee must be to see that he is carrying out the regulations. If, on the other hand, you are not going to have regulations, then by all means leave it to the referee to say what is fair and reasonable. But I think that will give rise to many difficulties.
§ VISCOUNT SWINTONMy Lords, before the Lord Chancellor finally closes his speech, may I say this? You are going to have regulations about rights under paragraph (a), and the regulations will of course give the arbitrator or referee his yardstick about rights. Where you deal with rights, you say that the referee is to give what is "fair and reasonable." But he will be equally bound on 1194 rights by the regulations. If it is right to say that he is to do what is "fair and reasonable" about rights under the regulations, I should have thought that you ought to say that he should do what is "fair and reasonable" about expectations, still under the regulations.
§ THE LORD CHANCELLORMy Lords, I do not think that that is correct. Where rights are concerned, a man has served the requisite time, whatever it may be. That can be calculated. There is not much room for error, not much chance that two referees will diverge. But if the noble Viscount will look at the Marshalled List he will see that we have just passed an Amendment at page 6, line 12 which is as follows:
("and (in such cases and to such extent as may be specified in the regulations) taking into account as regards the amount thereof, any loss of benefits which might have been expected to accrue by virtue of employment after the expiration of the period aforesaid").When loss of benefits which might have been expected to accrue is being dealt with—this is an extraordinarily difficult subject, I admit—the referee has to deal with it to the extent specified in the regulations. It is not necessary to put him in the same harness with regard to dealing with rights.
§ VISCOUNT SWINTONI think that is probably right. At any rate, I do not think I can offer any very convincing argument that it is wrong, and I therefore beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Power to provide for enforcement against the Board of certain workmen's compensation liabilities]:
§ LORD MACDONALD OF GWAENYSGORMy Lords, this is a drafting Amendment. There were certain compensation trusts in existence before the Workmen's Compensation (Coal Mines) Act, 1934 which were continued in operation for the purposes of that Act. This Amendment is to make it clear that the definition includes, and the clause therefore applies to, those trusts. I beg to move.
§
Amendment moved—
Page 9, line 25, leave out ("trust established") and insert ("compensation trust").—(Lord Macdonald of Gwaenysgor.)
§ On Question, Amendment agreed to.