§ 5.29 p.m.
§ Moved, That the Report be received.—(Lord Drumalbyn.)
§ On Question, Motion agreed to.
§ Clause 1 [Establishment, organisation and functions of employment medical advisory service]:
LORD DRUMALBYN moved Amendment No. 1:
Page 2, line 18, leave out ("(3)") and insert ("(4)").
§ The noble Lord said: My Lords, it may be convenient to discuss all the Amendments standing in my name together. I hope noble Lords will agree to that; they all cover substantially the same point. Noble Lords will recall that on the Committee stage Clause 2 was inserted in the Bill against my advice. In fact, there was not really a great deal between us. I argued that it would be anomalous to have two different penalties for obstruction of an E.M.A. (employment medical adviser) and obstruction of an inspector of factories, and that it would be better to await the outcome of the Robens review on safety, especially as there seemed never to have been any obstruction of appointed factory doctors or of medical inspectors under the existing legislation. Noble Lords opposite argued that a penalty was nevertheless needed and that the opportunity should be taken to bring the legislation up to date. I think I may summarise the arguments as briefly as possible in that way. It was appreciated that some further consequential Amendments might be needed.
§ Since then my noble friend Lord Reigate has put down an Amendment to remove my first objection; namely, that 331 the penalties for obstructing E.M.A.s should remain the same as those for obstructing factory inspectors, and that therefore the penalty for obstructing factory inspectors should be increased at the same time and to the same extent as that for obstructing E.M.A.s. The combined purpose of all the Amendments I have put down is to preserve the effect of the Amendments which your Lordships made in Committee, and also to accept in effect the Amendment proposed by my noble friend, which I agree is logical and, I am advised, practical for us in this House to make, while at the same time removing the defects and anomalies in the Amendments already accepted by your Lordships.
§ May I briefly explain the effect of the Amendments standing in my name. Amendments Nos. 1 and 2 will put back in Clause 1(5) the figure "(4)". Noble Lords will remember that the original reference to the penalties for obstructing an E.M.A. was in paragraph 4 of Schedule 1 to the Bill and when the new clause was agreed to in Committee one of the consequential Amendments which was also agreed was the deletion of the references in the Bill to paragraph 4 of the Schedule. As I shall explain, I am proposing that paragraph 4 of the Schedule should be reinserted and it is therefore essential to reinsert the reference to it in Clause 1(5). Amendment No. 5 merely leaves out the new Clause 2 which was inserted at Committee stage.
§ Amendment No. 7 inserts a new clause after Clause 7 of the existing Bill, and this is the real substance of my Amendments. This new clause says that any person convicted of an offence under Section 146(4) of the Factories Act, which relates to the obstruction of a factory inspector, or under that subsection as it applies in relation to an employment medical adviser by virtue of Clause 1(5) of the present Bill, shall be liable to a fine not exceeding £100. This meets the wishes of the House, I hope, as regards both the obstruction of an employment medical adviser and the obstruction of a factory inspector. The last phrase of the Amendment, that "section 156 of that Act shall not apply", refers back to the Factories Act, to where the occupier of a factory in which an inspector was obstructed is guilty of an offence and 332 liable to a fine not exceeding £60. Under the new clause this fine also is raised to £100—that is to say, both for the obstruction of an E.M.A. and for the obstruction of a factory inspector, whether by an employee or the occupier of a factory.
§ The next Amendment, No. 8, reinserts in Schedule 1 paragraph 4, with the omission of the reference to the penalty because that has already been put in the new clause. Amendment No. 9 makes it clear that the reference in subsection (4) of Section 146 of the Factories Act relating to the fine of £20 is repealed except for offences committed before the coming into force of the Bill. The final Amendment, No. 10, refers to the Long Title of the Bill. In accordance with the wishes of the noble Lords, we have now extended the amendment of the Factories Act to cover other than medical arrangements and related matters, and so it is essential that we should put in the Title of the Bill a reference to the fact that the Bill has been amended not only in relation to medical arrangements and related matters but also in relation to the obstruction of inspectors. My Lords, I hope I have made the reasoning and meaning behind these Amendments clear, but as noble Lords know, although this is a short Bill it is a highly complex and complicated one, partly because it amends both the Factories Act and because it establishes an Employment Medical Advisory Service. In framing the Amendments which have appeared in my name, the Government have accepted the wishes of the House on this question of penalties, and incidentally the wishes expressed in another place during the earlier passage of the Bill. It is a complicated series of Amendments but the purposes are essentially simple and I hope that they are purposes in accordance with the wishes of the House. My Lords, I beg to move Amendment No. 1.
§ 5.36 p.m.
§ LORD SHACKLETON
My Lords, I am grateful to the noble Lord, Lord Drumalbyn. He has dealt with this matter in a wholehearted way, though he did not imply or suggest that he was very pleased about it. Of course, he still used the same bad argument he used last time; namely, that because there had not been a prosecution for obstructing, 333 no obstruction was taking place and therefore there was really no need for a penalty at all—or for the right penalty. Well, we will not waste time on that. Furthermore, it was not until the noble Lord, Lord Reigate, logically saw that if one was going to do this for the medical inspector one ought to do it for the factory inspector that the penny dropped for the second time, and this time the noble Lord learnt wisdom and realised that he was on a losing ticket and that the noble Lord, Lord Reigate, was likely to carry his Amendment. This is a good example of co-operation and I am very grateful to Lord Reigate in this matter.
I do not propose to spend much time on this matter because in fact the Government have now done, rightly, what we want and have extended the Bill's provisions. This has meant some quite extensive amendment of the Bill. I hope that the noble Lord, Lord Drumalbyn, has the Amendments right now. He has the best advice. But if I may turn to the Amendment by which provision is put in the Schedule, I assume that it is all right to have the heading to Schedule 1—Provisions of the Factories Act 1961 applying to give employment medical advisers certain powers of inspectors "—and that he does not need to add "as amended by the Employment Medical Advisory Service Bill 1972". I take it that we have amended the 1961 Act by the noble Lord's new clause and I presume it still remains the 1961 Act. If he says so, I shall be content; if he says he will check that, I will still be content. It is a small point and doubtless the noble Lord has got it right. But we were told that one of the reasons why we could not do in the Bill what we wished to do was that the Schedule merely reproduced certain provisions of the 1961 Act and therefore was sacrosanct. Well, once the House had made its feelings known the noble Lord found that he could do it; and perhaps he was not too well advised on that. At any rate, I am grateful for this progress. I must say in fairness that some of the credit for it goes not merely to this side of the House but to the noble Lord, Lord Reigate, and some of his friends.
§ LORD REIGATE
My Lords, I am grateful to the noble Lord, Lord Shackle 334 ton, for his tribute. I should like to thank my noble friend for coming to heel, if I may put it that way. I noticed that he was rather lacking in his thanks to me for my efforts in provoking the elaborate series of Amendments which he has put before the House on this occasion. In looking at his Amendments, I must say, frankly, that I think my own, which was drafted by an expert draftsman, was far simpler and just as efficacious. But I will take my noble friend's advice that it is better done in the way he proposes to do it. The main point is that it should be done. On a previous occasion he gave three reasons why he could not possibly accept my Amendment, the most curious being the suggestion that there had not been any prosecution. I cannot wait for the day when someone comes to the House and says, "There have not been any prosecutions for treason for a little while; let us get rid of the penalty". That is quite the worst reason I ever heard.
Then my noble friend resisted the Amendment on the ground that it was anomalous. He ought to give me credit for being most helpful to him on that. I suppose that the worst of all the reasons was the suggestion that we ought to wait for the noble Lord, Lord Robens of Woldingham, to report. Even when Lord Robens has reported there will have to be legislation, and it is singularly ominous that Lord Robens has just published a book under the title, Ten Years' Stint. Therefore I think my noble friend ought to congratulate me on having taken time by the forelock and saved everybody a lot of trouble.
§ LORD DRUMALBYN
My Lords, I most willingly congratulate my noble friend on having tabled this Amendment. It has certainly focused our thoughts in what I know he regards as an entirely desirable way. I thought I had made it plain that what he did was entirely logical, and I thought that was itself a measure of tribute. To deal with the one point that he made, I never said that we did not need a penalty. At no time did I say that. What I said in arguing the case before was that it was less important to bring the penalty up to date because there had been no offences so far. Perhaps we may leave it at that. With regard to what the noble Lord, Lord Shackleton, has said, I am grateful for the 335 way in which he has received this Amendment. With great respect, I still feel that there was not much between us. Nevertheless, our view was as it was expressed, and without the pressure that has been brought we would not have changed it. Let me leave it like that.
So far as the structure of the Bill is concerned, the alteration of the Long Title does make a difference, as I am sure the noble Lord, Lord Shackleton, will agree. I would never go so far as to say that I am absolutely certain that we have done it right, but in view of what he has said we will certainly have another look at it before the next stage. I was myself convinced that what had been done was exactly what the noble Lord required.
§ On Question, Amendment agreed to.
Page 2, line 25, leave out ("(3)") and insert ("(4)").—(Lord Drumalbyn.)
§ On Question, Amendment agreed to.
§ 5.43 p.m.
LORD SHACKLETON moved Amendment No. 3:
Page 3, line 5, at end insert—
("() The Secretary of State shall ensure that medical records of persons specified in subsection (6) above whose medical records are not in the possession of the local education authority by virtue of the fact that such persons have been educated independently, shall be made available on demand to an employment medical adviser, and the Secretary of State may by statutory instrument make an order to this effect.")
§ The noble Lord said: My Lords, I beg to move the Amendment standing in my name and that of my noble friend Lady Summerskill. The purpose of this Amendment is to ensure that those persons—namely, young people—whose medical records are not in the possession of the local education authority because they have been educated independently shall be made available on demand to an employment medical adviser, and the Secretary of State is given powers to achieve this.
Let me say straight away that I shall not be in the least surprised if this Amendment is defective. Its purpose is to draw attention to quite a serious gap.
As noble Lords who have followed our debate will know, we are abandoning as an automatic procedure the medical examination of young persons entering into employment in factories. There is at present provision that their medical records will be made available to the employment medical adviser and that only then may he carry out a medical examination, if he thinks fit. We think this is a sensible provision, and it is provided for in Clause 1. But there is a gap, to which attention was drawn by my noble friend Lady Summerskill in our debate in Committee on the Question, That the clause stand part of the Bill. A very experienced personnel director said:
… there will be practical difficulties in implementing the link-up between school medical services and careers officers and employers where school leavers are concerned, …"—
a particular problem where private schools are involved."—[OFFICIAL REPORT, 23/3/72, col. 883.]
The noble Lord, Lord Drumalbyn, gave a reply which I am bound to say was totally unconvincing. I had not given him notice of this point, and he did his best in the circumstances, so that my remark does not reflect on him. But what he said (col. 883) was:
there is an organisation of doctors at private schools, and I understand that that organisation has undertaken to notify all its members",
and then he added:
—who are presumably all the doctors in private schools—of the requirements.
§ He said that there is no statutory cover. I do not believe that noble Lords will be satisfied that all private schools have in fact a satisfactory medical service. In many cases they do not need it; for example, a small private day school, even if it has older children. It may be that the organisation of doctors at public schools is in a position to co-operate and, for all I know, has proper medical records. But there are other independent schools, and in the absence of statutory cover it will be possible for young people to enter into employment without any medical records being made available. In that case they will slip through the net, and there may be some people who health is of such a kind that the employment medical adviser ought to have details, not merely when 337 they first enter into employment but when they change jobs. In my view it is likely that the only person who will have this information is the family doctor—the general practitioner—and I should hesitate to seek to extend this Bill to require the general practitioners in the National Health Service to provide this service, although it may well be that this would be the best answer.
§ Yet another answer would be for all such children who have no record to be automatically examined, as they would have been examined in the past under the earlier legislation. This is not an unimportant point; it is not only the possible danger to the individual that is causing concern. I am sure that the noble Lord is as keen as any of us to make this measure as watertight as possible, but there is a gap here. There is a danger to the individual and there may well be a danger to fellow workers in industry if someone who is not fit enough slips through the net—there might even be a person with a history of epilepsy but so occasional that the school did not know about it properly; indeed, they might not have a medical advisory officer. Organised ones no doubt will co-operate.
§ My Amendment seeks to require the Minister, one way or another, to take steps to achieve the purposes that are contained in Clause 1 in relation to the local authority schools. I fully acknowledge that if those medical records in fact do not exist then he cannot achieve that, and the fact that he has power to make orders will not get him anywhere at all. But in that case we need to know what alternative proposals the noble Lord has in mind. As my noble friend Lady Summerskill pointed out on Committee, there is a gap here; and although there probably are not very many children involved, it is a gap that I think properly ought to be filled.
§ LORD AVEBURY
Could the noble Lord say whether the position is the same in the direct grant schools?
§ LORD SHACKLETON
I am sorry, I do not know. I assume it is so. I do not know whether the direct grant schools which have links with local authorities come in this respect under the local education authority—perhaps the noble Lord, 338 Lord Drumalbyn can help us on that. If it were so, the number becomes very much greater. My impression is that no great problem will arise in direct grant schools. It is in the case of the smaller independent schools where we want to make sure this is properly handled. I beg to move.
§ BARONESS SUMMERSKILL
My Lords, I find it difficult to understand why it has been decided to discriminate against these children. If a child is sent to an independent school it certainly may not have been the child's choice: it was the parents' choice in the first place. Following some years in school the child is taken into some occupation. It is decided that, whereas the boy or girl working next to him who has been to a State school is not denied the full benefit of the Health Service because their health records are produced, this child who has been at an independent school is handicapped, in my opinion, in a very serious way. The child may be in a factory where there are certain industrial hazards which are known. Let us take dust hazards. It may be that this child has had a record of hay fever, asthma—diseases of that kind; and in such a case the record of the medical adviser on this child is of paramount importance. Indeed, later on we are coming to another Amendment on this clause, put down by my noble friend and myself, which is concerned with the examination of a worker and the right of that worker to be assisted by a trade union. Here the two things are linked together. I am hoping that the noble Lord will accept that second Amendment. We are advising that the worker should have a friend, a counsellor, a man who understands the importance of industrial diseases, present when the occupier of the factory is called upon by the medical adviser for an examination of the worker.
This boy or girl who has been at an independent school is to be denied all health records. It is quite incomprehensible to me. It seems to me that it is denying him or her elementary justice. To establish two kinds of workers at a factory, one who has his full health record and one denied it because he has been to an independent school, really cannot be supported. I hope very much that the noble Lord will reconsider this. It was raised on Second Reading, and the more one thinks about it the more one 339 recognises that it would be grossly unjust not to accept this Amendment.
My Lords, I know very little about this subject, but it seems to me, as a layman, that everybody entering employment should be medically examined whether he has medical records in the State school or the independent school. I urge that this Amendment should be accepted.
§ LORD AVEBURY
My Lords, I cannot help rising for one moment to point out to your Lordships the humour in the situation, when Socialists are sticking up for the rights of old Etonians and old Harrovians who are suffering from these appalling diseases, pneumoconiosis, byssinosis, and so on, contracted as a result of the sub-standard occupations in which they have been involved, having worked in a quarry with the fumes and dust coming into their lungs causing serious diseases. My heart bleeds for these young men who are forced into occupations where they run such appalling risks. My heart bleeds for them even more when I hear Socialists pleading their case.
But I think there is a serious point raised by the noble Lord, Lord Shackleton. It would surely be anomalous, even if only a few individuals were involved, to leave out of protection this small minority. I must also ask the noble Lord the Minister to say definitely whether the implications raised by the noble Lord, Lord Shackleton, do apply to students from direct grant schools. If it were so, we should be talking not about a tiny problem but about many thousands of school-leavers who every year would be left out of the protection otherwise to be given under this Bill. But for the sake of uniformity, even if it were a tiny minority the noble Lord ought to take the opportunity of this Amendment to clear it up and put everyone on the same footing.
§ LORD DAVIES OF LEEK
My Lords, I must take up the point of the noble Lord, Lord Avebury. We are not protecting Etonians and Harrovians from pneumoconiosis and silicosis, suffered from working on an anthracite face in Ystradgynlais. We do not want them to go into that kind of job. But 340 one must not think only of Eton and Harrow. There are some people whose money is young who, through some false idea of cheap snobbery, send their children to inadequate private schools and keep them there against their will until they are 15 or 16. I know what kind of education is given in some of these schools. A certain friend of mine was the only qualified mathematician and person holding a degree on the staff of a school with about 50 children from all over Britain. In a great many cases those children went direct to industry, and not in the higher echelons after going to university; but coming from a snobbish little private school that was not only not developing their minds but neglecting their bodies, too. Consequently there is a place for my noble friend's Amendment, and I am quite sure the Government will treat it—as the noble Lord, Lord Avebury did, after his little "crack"—with the seriousness which it undoubtedly deserves.
§ LORD PLATT
My Lords, does this Amendment seriously mean that in the case of a young person who has been to a school which employs no medical officer, and who has simply been under his or her own general practitioner, that general practitioner is expected to submit the whole of that person's records, at any rate so far as they can possibly apply to employment, before the person is employed? It seems to me that there is a difference. The school medical officer knows the reason for the keeping of his records, and he knows that as soon as the child is of an age to be employed the child will then pass out of his hands. The situation with regard to general practice is surely something quite different. I can imagine a large number of general practitioners who would be quite alarmed if they thought they were liable to get demands, backed up by Act of Parliament, to submit these persons' records. I think if the wording were that the employment medical advisory officer, whoever he is, should request an account of any illnesses which might affect certain kinds of person with regard to certain kinds of employment, that would be a reasonable thing to ask. However, I think that the way this Amendment is worded really will give rise to a great deal of difficulty.
§ BARONESS SUMMERSKILL
My Lords, may I ask my noble friend how he expects the employment medical adviser to obtain information? After all, if the patient left his general pracitioner and went to another doctor, as my noble friend knows, the record is transferred to the next doctor. There is no question of that record being only in the hands of one doctor for the whole of the patient's life. It is transferred sometimes to two and perhaps three doctors. All we are asking is that, if it is only the record of the general practitioner, that record should be seen by another doctor—not the employer—in the factory, just as another doctor could see it if the patient transferred himself to another area.
§ LORD PLATT
My Lords, if I may say so, he does not transfer himself to two or three doctors at a time.
§ 6.2 p.m.
§ LORD DRUMALBYN
My Lords, first of all I should like to say that I am very grateful to the noble Lord for providing us with this opportunity of looking more closely than we had done at the practical aspects of the arrangements for enabling the E.M.A.S. to help pupils from independent schools. It is not always easy for a Minister to anticipate all the branches into which inquiries may go, but I can tell the noble Lord that in this case he has provided a focus for attention, and I personally have done my best to go into this as well as I could in the time. It is a subject, of course, that involves at least four Departments, and, as he says, it is not an unimportant point. There is no dispute about the importance of pupils who leave independent schools being able to have the same help from the Employment Medical Advisory Service as pupils who leave maintained schools. The question is how this can best be achieved. I hope the House will bear with me because this is a very complicated matter, and I am afraid that necessarily my response to the noble Lord must be complicated and somewhat lengthy.
As the noble Lord, Lord Shackleton, said when he spoke about this during the Committee stage, the Bill provides for the school health service to co-operate with the Employment Medical Advisory Service. I stress the word "co-operate" 342 because, although Clause 1(6) is expressed in terms of compulsory powers and, in the language of legislation, "requires school medical records to be furnished", it is essential if a service such as the E.M.A.S. is to be successful that there should be willing co-operation; the schools, the school medical officers, the young people themselves and their parents, and the future employers, must understand and appreciate how the I service can help them. Clause 1(6) therefore provides a statutory basis for a service which essentially depends on good co-operation. It is intended as a fallback provision, just in case anything should go wrong or a mistake should be made.
For maintained schools it is possible to express this requirement for co-operation in the terms provided for by Clause 1(6) because the legislative basis for complying with what is required already exists. There is a legislative requirement for a service of medical inspection and treatment—and the noble Lord, Lord Platt, has put his finger on this—and it is also a requirement of legislation that school medical officers, who are the employees of education authorities, shall keep records. It is therefore a simple matter for legislation to lay a duty on education authorities to require that the medical officers who work for them shall provide information from those medical records.
The noble Lord, Lord Shackleton, has already indicated that he is aware that the position is not so straightforward with non-maintained schools. There are in England and Wales, I am told, about 180 direct grant grammar schools, and just under 2,700 independent schools. About 1,600 of the independent schools admit only children of primary school age. There is great variation in the size of independent schools; nearly half have less than 100 pupils and just under a quarter have less than 50 pupils. There are both day and boarding schools. It is a requirement that direct grant schools—a "requirement", and this is in answer to the question put by the noble Lords, Lord Shackleton and Lord Avebury—shall provide a service of medical inspection comparable with that provided by the school health service, but there is no comparable requirement for independent schools in general, and there is no 343 requirement about the keeping of school records either by direct grant or by independent schools.
In practice, many of these schools, and particularly the boarding schools, have well-developed arrangements for supervising the health of their pupils, and some have an arrangement with the local education authority—as the noble Lord, Lord Shackleton, suspected—to do this on their behalf through the school health service. But these services are not based on the same legal requirements for a service or for record-keeping as exist for maintained schools.
The legal basis for any statutory requirement such as the Amendment proposes is further complicated by the fact that the contractual relationship between medical officers and independent schools is not the same as that of school medical officers to local education authorities. This, as the noble Lord, Lord Platt, has indicated, is important. I have no detailed knowledge of the arrangements between independent schools and their medical officers; I do know that they vary, and I also know that it is usual in the case of boarding schools for pupils to be on the National Health Service list of the school medical officer. This means that the school medical officer would then normally provide services for the pupil by virtue of his contract with the local executive council, and would be remunerated by the executive council for his services.
There is also other work, largely of a preventative and advisory nature, which falls outside the National Health Service for which the school medical officer may be under a direct contract to the school governors or proprietors and for which he may be remunerated separately. But he is not a "servant" of the school in the legal sense. Some school medical officers may keep school records independently of their patients' National Health Service records; but I have no certain information about this, and it is quite possible that the records of pupils may be kept with National Health Service records and go back with the pupil to his home general practitioner if he returns home when he leaves school, or on to whoever is responsible for his health if he goes on to higher education. This, I think, would be normal, 344 as the noble Baroness, Lady Summerskill, has indicated. There are certainly complications here about what records the school medical officer who is also the pupil's general practitioner might be being asked to provide.
As I think the noble Lord has recognised both in what he said on March 23 and in the way in which he phrased his Amendment and what he said to-day, it would be difficult to draft legislation to fit the various circumstances under which independent schools provide medical services and to accord with existing legislative provision. If we are going to legislate, we should certainly need to do this by regulation so that the Department of Employment, together with the Department of Education and Science, the Department of Health and Social Services, and the Scottish Office, could look thoroughly at the legal and practical implications, and could carry out the necessary consultative processes, and could draft orders which were legislatively sound. But when all this process has been completed, one would probably be left with regulations which said little more than that when records existed they were to be produced.
I would hope that we could do better than this. We want independent schools to understand the service which the E.M.As. can offer, and to be willing themselves to make the sort of arrangements which will enable the E.M.As. to help pupils who may need advice on medical grounds about their future employment. Both the Department of Employment and the Department of Education and Science are proposing to set in train the consultative processes, and to make the organisation arrangements, which will ensure that independent schools are aware of the service and have an opportunity to co-operate with it. Part of this consultation process has already begun, and I think that this debate and the interest which the noble Lord has focused on the subject will speed it considerably. It has to be clearly understood that there are cases when one can legislate straight away for a denned purpose. There are other cases when one has to proceed by way of consultation and then to legislate in consequence. This consultation should now go forward. The Medical Officers of Schools Association has already said that it will make 345 sure that its members are aware of the service.
Details have not yet been finalised, but arrangements will be made to ensure that employment medical advisers know of independent schools in their areas, that the schools know of the employment medical advisers, and that the schools and the employment medical advisers consider together how, under the medical arrangements prevailing in each school, which vary so much, the help of the employment medical adviser can best be made available. It is conceivable that in day schools this might be by liaison with a pupil's general practitioner on an informal and professional basis, in a way which parents and pupils would accept as being helpful, but which it might be quite inappropriate to provide for in legislation. The Department of Employment, the Department of Education and Science, the Department of Health and Social Security, and the Scottish Education Department certainly intend to do all that they can by administrative means to ensure that the spirit of Clause 1(6) is observed by pupils in independent schools.
I have been into this with the greatest of care, and I feel sure that in the circumstances which I have described we are more likely to achieve what we all want by administrative than by legislative action. Administrative action will enable the best possible arrangements to be made, according to the circumstances of individual schools, for ensuring that information is available about pupils who need help. We feel that enacting legislation of the sort proposed in the Amendment would do no more than apply compulsion to those independent schools where compulsion is least needed; that is, to those schools where records already exist which could be passed on. There could be no question of further amending this Bill to require independent schools to employ school medical officers and keep medical records. That would be a matter of amending the Education Acts. We are confident that what we all want can be obtained by administrative action, and I can assure the noble Lord that Government Departments concerned will do all they can to ensure this.
I hope that I have said enough to convince noble Lords that, in the first place, the whole essence of the Bill so 346 far as the young person is concerned is that it will work by co-operation. There is a fall-back provision in Clause 1(6), but that would not help very much in the case of independent schools. For the reasons I have given, it certainly could not cover the whole field as matters are. But we are very conscious of the gap which exists in the system for those whose parents have decided that their children should be educated outside the system, and we are determined to overcome it so far as it is humanly possible to do so. No system is going to work perfectly and no doubt even with compulsory powers this will not work perfectly. But I believe that with the co-operation and the administrative arrangements which we intend to achieve, this will work more than satisfactorily. Does the noble Lord wish to interrupt?
§ LORD AVEBURY
My Lords, before the noble Lord concludes, may I raise one point about which I am anxious? He said that he will enter into consultations but, as he said, there are so many independent schools which cover a vast network. In addition to the ordinary public schools which come under the Headmasters' Conference, there are the schools which the noble Lord, Lord Davies of Leek, has mentioned—the fly-by-night establishments which cater for particular needs. I am anxious about the schools which cater for mentally and physically handicapped children. So far as I am aware, there is no body which represents them in the same way as the Headmasters' Conference represents the well-established public schools. So although the noble Lord said—and I quite accept it—that extensive consultations will be entered into between the Deparment of Employment, the Department of Education and Science, other Ministries responsible and independent schools of various kinds, I wonder whether he can tell me what body it is possible to enter into consultation with in respect of schools for the mentally and physically handicapped.
§ LORD DRUMALBYN
My Lords, I should have thought that handicapped children were virtually completely covered at present. In the first place, one has the local authority schools and then one has the private schools. I believe that 347 some of those are "recognised as efficient" and, even in the case of those which are simply registered, there has to be the consent of the Minister for every pupil to go into such a school. They will be very amply followed through, so I really do not think one needs to worry on that score. It is not that kind of case with which the Bill seeks to deal. It seeks to deal with the kind of case where it is plain, from a person's medical state and history, that he is not suited for certain kinds of job. The form that is made out by the school health service is a very simple one, which simply states the kinds of job for which a pupil is not suited. That goes to the careers officer who in due course also receives from employers lists of people taken on. He will compare the names of school leavers in respect of whom there is a Y.9 form with those on the lists. In that way the employment medical adviser will be able to see whether any of the children have been taken on for unsuitable occupations.
But in the first place, before one gets to that stage, in the last year before leaving school the school health service will have identified those children, will have made out the Y.9 forms—a copy of which will have gone both to the employment medical adviser and to the child's own doctor—and there will have been ample consultation. They will all know the sort of jobs which they ought not to go in for. It is that kind of service—and it is all done on a voluntary basis—that we also want to see provided for the independent schools. All I am saying is that we cannot make a blueprint for it, partly because the circumstances vary so much in the different kinds of schools, and partly because no consultation has yet been carried out, and it will be a matter of consultation to find out how the best results can be achieved for the different categories of schools.
§ 6.20 p.m.
§ LORD SHACKLETON
My Lords, I am very grateful to the noble Lord, who has obviously taken a great deal of trouble over this matter and has gone into it fully in a way which he was not able to do when he replied during the Committee stage. I feel bound to draw the attention of the House to the fact that the noble Lord has not found a 348 solution to this problem, and that what he is seeking to do is to rely on voluntary co-operation—and I entirely agree that all this legislation requires good voluntary co-operation. But, my Lords, those of us who had to administer the Factory Acts, whether the persons concerned were individual firms' medical advisers or personnel officers, know that the law, even if the sanctions are never invoked, provides a firm base which ensures that the requirements are carried out. Under this Bill we are removing a very important safeguard with regard to young people, and we are substituting something else which is sensible, though I am bound to say that I have some slight doubts, even in this respect, about the school medical records. I have known of cases where the statutory medical examination by a firm's doctor has revealed a condition which was not previously known. This is a serious point, and before we dispense with something that is an important safeguard to individuals and a wise requirement, we want to make sure that what takes its place is satisfactory.
I find it very difficult to understand why it is necessary to make statutory provision, instead of leaving it to voluntary co-operation, in the area of State education, where it is most easy to obtain the co-operation, yet it is not sought to have powers to deal with this much more ill-defined area of the independent schools. The noble Lord, Lord Drumalbyn, gave some helpful figures about the size of the schools, and there is no doubt that in a large number of them there will be no real medical service at all; and even in the large schools, like the public schools, it is very likely that the school doctor will be a general practitioner, and he will be asked, presumably, if it is going to be by co-operation, to produce medical information to give, as my noble friend said, to another doctor. It is not proposed that it should be given to an employer. I see the difficulties about requiring doctors in general practice to do this, and I am well aware of the defectiveness in this respect of my Amendment. But what gave me the greatest alarm was that, while the noble Lord, Lord Drumalbyn, said that the Ministry of Education and the Department of Employment were considering the matter very fully—and I do not doubt that they have given a great deal of thought to it—he made no mention of the Minister of 349 Health; and of course it will be from the general practitioner that this information will have to come.
§ LORD DRUMALBYN
My Lords, if your Lordships will forgive me for intervening I specifically mentioned the Health Service twice over. I admit that I did not mention the Scottish Health Service, though I did mention Scottish education.
§ LORD SHACKLETON
The noble Lord certainly mentioned the Health Service, but he said at one point words to the effect that the Department of Education and the Department of Employment were working on this. However, I do not want to make much of this.
I am bound to say that I do not regard the situation as satisfactory. I should very much have liked to accept the noble Lord's assurance, but he knows, as I myself know from experience in the past, that ministerial assurances, however sincere and however well meant, do not necessarily achieve administrative results. I should like to take this Amendment to a Division. If this Amendment is inadequate, it is open to the Government to do something about it—and the noble Lord found he managed it quite easily on the other Amendment that we carried on Committee stage against his advice. For instance, it may be that he ought to provide in the Bill that all school-children whose records are not available should be especially examined. The noble Lord has given us no assurance on that. If he had, this would have met the case and we should not need this Amendment.
I would urge my noble friends, as well as other noble Lords, who have been very helpful, to support this Amendment. We do not approach this in a par
§ tisan spirit. We ignore what the noble Lord, Lord Avebury, said—he is rather new to this House. But on the last occasion we had very good co-operation in this House. If, in the end, the noble Lord and his right honourable friends find that this Amendment is unsatisfactory, they can take it out in another place; they have a majority there. Goodness knows! we had to do that often enough when we were in Government, It will be good experience for them. But we need the sort of help which, for instance, the noble Lord, Lord Reigate, and others gave.
§ This is a serious issue. It is no good just saying that public schoolboys are not likely to get byssinosis or pneumoconiosis. Large numbers of children from independent schools will go into industry, and many of them, in the course of training, will be working in factories. It is desirable that there should be a proper health check before they go in. There is no guarantee under this Bill; and although I fully accept that the noble Lord, his right honourable friends and his officials will do their best, I urge the House to accept this Amendment in order to encourage the Government to find a solution. If the noble Lord were to give me an undertaking even now that he would be a medical examination, however would be a medical examination, however it was done, then I would withdraw the Amendment; but I realise he cannot do so, and in those circumstances I must take the Amendment to a Division.
§ 6.28 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 34; Not-contents, 68.351
|Archibald, L.||Garnsworthy, L.||Roberthall, L.|
|Arwyn, L.||Granville of Eye, L.||Serota, Bs.|
|Avebury, L.||Hall, V.||Shackleton, L.|
|Bacon, Bs.||Hughes, L.||Slater, L.|
|Beswick, L.||Jacques, L. [Teller.]||Summerskill, Bs.|
|Burntwood, L.||Leatherland, L.||Taylor of Mansfield, L.|
|Champion, L.||Lloyd of Hampstead, L.||Tayside, L.|
|Collison, L.||Longford, E.||Wise, L.|
|Crook, L.||Maelor, L.||Wright of Ashton under Lyne, L.|
|Davies of Leek, L.||Nunburnholme, L.|
|Diamond, L.||Phillips, Bs. [Teller.]||Wynne-Jones, L.|
|Douglas of Barloch, L.||Raglan, L.|
|Albemarle, E.||Drumalbyn, L.||Northchurch, Bs.|
|Allerton, L.||Dundonald, E.||Oakshott, L.|
|Auckland, L.||Eccles, V.||O'Neill of the Maine, L.|
|Balerno, L.||Ellenborough, L.||Onslow, E.|
|Belstead, L.||Emmet of Amberley, Bs.||Orr-Ewing, L.|
|Berkeley, Bs.||Ferrers, E.||Platt, L.|
|Brabazon of Tara, L.||Fortescue, E.||Polwarth, L.|
|Bradford, E.||Gainford, L.||Rhyl, L.|
|Brooke of Cumnor, L.||Greenway, L.||Ruthven of Freeland, Ly.|
|Brooke of Ystradfellte, Bs.||Grenfell, L.||St. Aldwyn, E. [Teller.]|
|Brougham and Vaux, L.||Grimston of Westbury, L.||Saint Oswald, L.|
|Buccleuch and Queensberry, D.||Hanworth, V.||Sandford, L.|
|Colville of Culross, V.||Harvey of Tasburgh, L.||Sandys, L.|
|Conesford, L.||Headfort, M.||Sempill, Ly.|
|Cork and Orrery, E.||Hertford, M.||Somers, L.|
|Courtown, E.||Lauderdale, E.||Stonehaven, V.|
|Cowley, E.||Leicester, E.||Strathcona and Mount Royal, L.|
|Craigavon, V.||Limerick, E.|
|Craigmyle, L.||Lloyd, L.||Trefgarne, L.|
|Cranbrook, E.||Lothian, M.||Tweedsmuir, L.|
|Daventry, V.||Mancroft, L.||Vernon, L.|
|Davidson, V.||Mowbray and Stourton, L. [Teller.]||Vivian, L.|
|de Clifford, L.||Young, Bs.|
On Question, Motion agreed to.
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clause 2 [Obstruction of employment medical adviser]:
§ 6.35 p.m.
§ Amendment moved.
§ Leave out Clause 2.—(Lord Drumalbyn.)
§ Clause 4 [Medical examinations of persons employed in factories]:
BARONESS SUMMERSKILL moved Amendment No. 6:
After Clause 4 insert the following new clause
§ Duty of employer to consult with
representatives of workers
§ ".It shall be the duty of an employer in consultation with an Employment Medical Adviser to ensure due consultation with representatives of Trade Unions or other organisations of workers representative of workers in his employ on the implementation of the provisions contained in sections 3 and 4 of this Act; and in doing so an employer shall have regard to the requirements of the code of industrial relations practice."
§ The noble Baroness said: My Lords, it will be recalled that under Clauses 3 and 4 of the Bill the medical adviser has the right to ask that a worker shall have a full medical examination. This could be an ordinary clinical examination or a 352 full investigation, including X-rays, a pathological report and so on. The Amendment asks that in the event of a worker going for a medical examination he should have the support and advice of a trade union representative.
§ If a noble Lord or a noble Baroness here was informed that they had to go for a medical examination they perhaps would not feel very apprehensive. They would take it in their stride and go along to wherever the examination was arranged, perhaps alone and without a friend, and they would regard that as normal. But I wonder whether the House can envisage the situation of a young worker in a factory where conditions are rather strange, where he has no knowledge at all of the details of industrial injuries and industrial diseases, and no knowledge at all of the technicalities of these matters or the recognition that he may make some admission which might be damaging to himself or that he might not give a full account of his background or the conditions under which he has worked. In other words, I think it would be agreed that a boy of, let us say, 19 years should have a friend and adviser to call upon when the medical adviser decides that there should be a medical examination because there is some suspicion that he may have some condition related to the conditions under which he works. Who better in such a case than an individual in his trade union who is particularly concerned with health and 353 health matters? Surely this is a simple request.
§ I would also say that the medical adviser, who may not have as much knowledge on these questions as a worker in a trade union who has devoted years of his life to industrial diseases, may well be grateful for some of the expertise possessed by the trade unionist. Far from being reluctant to accept his help, he would welcome his attendance. Therefore I hope the House will realise that this is not an Amendment intended in any way to destroy the Bill or any aspect of the Bill. Far from it! It is an Amendment which in my opinion will improve it and give the worker and the medical adviser—and, indeed, the good employer—help and advice from the trade union in the light of knowledge which has accumulated over the years. There are still many things that we do not know about industrial diseases. There are all the new processes and the new materials used in our factories. Therefore we should be grateful that in the trade union movement there is a powerful section devoting itself to this aspect of industrial health. All we ask is that when one of these young men or women is invited to go for a medical examination he or she may have the support and help and the friendly presence of a trade union representative. I beg to move.
§ 6.40 p.m.
§ LORD DRUMALBYN
My Lords, I am grateful to the noble Baroness for explaining the purpose of her Amendment, because frankly we were rather mystified about what she had in mind. I have had a little difficulty in relating what she has been saying to what is actually in the Amendment. I have no reason to doubt that it would be a good thing in some circumstances to have expert trade union advice and someone accompanying an individual who was to be examined. But this is not what the Amendment says. I have looked at this Amendment carefully to see what would be achieved by accepting it. So far as I can see, the provisions in Clauses 3 and 4 do not lend themselves to consultation between employers and trade unions. Subsections (1) and (2) of Clause 3 obviously do not. Subsection (3) has as its purpose solely to confer on the chief employment medical adviser powers similar to those at present exercised under 354 regulations by the chief inspector of factories to approved medical practitioners, other than appointed factory doctors, who may carry out medical examinations for the purposes of the regulations. The authorisation of the works medical officer to carry out periodic examinations prescribed by regulations under the Factories Act does not seem to be a matter upon which an employer could properly consult representatives of the trade union. It would be a matter for the professional judgment of the chief employment medical adviser.
The Amendment would not in any way affect any other powers conferred by regulations on the chief inspector of factories, I am advised, nor does it extend them to the chief employment medical adviser, because of the effect of Schedule 1. Schedule 4 to the Factories Act sets out the procedure for making special regulations where it involves publication in the London Gazette and in such manner as the Secretary of State may think best adapted for informing persons of a notice of his proposal to make regulations and of the time within which objections may be made. This is the procedure under Clause 3. Again there seems to be no real scope for consultation. The procedure is completely established.
As to Clause 4, the only point on which I thought there might be consultation between employer and trade unions is the time and place of the medical examination which an employment medical adviser gives notice that he intends to conduct. That hardly seems to be a suitable subject, either, for consultation.
§ LORD DRUMALBYN
—because subsection (3) says that the employment medical adviser, in issuing a notice under subsection (1),shall name the place where a medical examination is to be conducted.This is the notice of the employment medical adviser and it is not a matter for consultation between the employer and the trade unions. It is not a matter 355 for consultation, I should have thought, and I find difficulty in understanding what is to be gained.
§ LORD SHACKLETON
May I interrupt the noble Lord? This is really the nub of the whole matter. It is a matter of concern to workers where examinations take place and the circumstances, and so on, and whether the accommodation is right. Admittedly there are various steps which they may take. All we are saying is that it is sensible to consult on this sort of case. It may be said that nothing is achieved but in that case the noble Lord does not believe in consultation at all.
§ LORD DRUMALBYN
Surely, if we read what is said here, the word "place" does not mean a room or accommodation. It means whether the examination is to be at the factory or at a hospital or clinic. That is what is intended. I should not have thought there was much scope there for consultation. As I said, we did not fully understand what the noble Baroness, Lady Summerskill, and the noble Lord, Lord Shackleton, had in mind. We shall have another look at it to see whether there is here a point which we feel should be met. I confess that I failed to anticipate this point and I still do not understand and should like to discuss it further. I do not understand what good purpose would be served by consultation within the terms of the Bill as at present drafted. Perhaps it might be convenient if we had a further word together. We need not debate the whole thing, but I should like to know exactly what the noble Baroness has in mind and how she would like to see this carried out. If she would like to do so, we might meet and discuss this matter, but at present I find difficulty in accepting the Amendment without further consideration with the Department.
§ LORD SHACKLETON
The noble Lord, Lord Drumalbyn, was a little more conciliatory than on the last Amendment. I, and I am sure my noble friend, would be the first to accept that an Amendment of this kind drafted in Opposition without the resources to carry out a good deal of research is liable neither to be explicit nor entirely satisfactory.
356 Here there is a real problem, and it may well be that we were wrong to confine this Amendment purely to Clauses 3 and 4. We might have said "on the implementation of the Act" in so far as it affected the workers in a particular factory. There are a number of possibilities. As I understand it, the point which my noble friend was making seems to be valid as an area for possible consultation. The theory about how this works is perfectly clear, particularly where there is a known health hazard. For instance, there may be a suspicion of lead poisoning, of which there have been examples recently. Then there is a good deal of anxiety on the part of the workers. The purpose of the Amendment, adequate or otherwise, relates first to the arrangement to which my noble friend referred; but it is possible also that a medical adviser may wish to carry out certain tests on an extensive scale. At this point, if anxiety exists, it would be proper (I assume that good management would do this anyway but they might not) to have consultations.
The noble Lord, Lord Drumalbyn, did not refer to the Government's own code of practice which states that management and employee representatives should make the best use of the arrangements for consultation about safety and health. This is an aspect of health and they have told us that their Industrial Relations Act is such a wonderful thing and that the code is a wonderful thing. We put down the Amendment with some trepidation on my part about referring to that ill-begotten Act to encourage them to carry out the principles to which they attach importance.
I do not blame the noble Lord for not fully understanding the Amendment, but I am surprised that some of his officials did not understand it. They have had experience of dealing with Amendments. It has been perfectly clear to those with whom I have consulted in industry and in the trade unions, so I hope that the noble Lord will consider whether there is some way in which we can give expression to the desirability of consultation on health matters. My noble friend Lady Summerskill's examples explained one obvious and important aspect—and I think there are 357 others—which justify the sort of consultation that we seek to achieve.
§ BARONESS SUMMERSKILL
My Lords, in view of what the noble Lord has said, I will not press this Amendment to a Division. But the noble Lord does not seem to have understood it. The more I read it, the more elementary it seems to me. And if the noble Lord did not understand it, I regret that he did not come to me in the House and say: "I do not understand this Amendment. Can you explain it to me?" We could then have had a discussion and threshed it out beforehand, instead of having to do so here. The duly of an employer to consult representatives of workers seems to me to be so obvious. In view of the fact that it is related to Clause 4, which says that medical examinations of persons employed in factories, dare I say, with all respect to the hardworking Minister, who I think has too much put on his shoulders and therefore has not sufficient time to examine some of these details, that perhaps the difficulty has arisen because he and his advisers have found it quite impossible to identify themselves with the unfortunate worker and with the trade unions. However, I accept the noble Lord's offer, and we will discuss the matter behind the scenes on another occasion. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
§ After Clause 7 insert the following clause:
§ Obstruction of inspector or employment
§ ".Any person convicted of an offence under section 146(4) of the Factories Act 1961 (obstruction of inspector), or under that subsection as it applies in relation to an employment medical adviser by virtue of section 1(5) above, shall be liable to a fine not exceeding £100."—(Lord Drumalbyn.)
§ LORD SHACKLETON
My Lords, I take it that the noble Lord has not yet had time to get the answer to my question whether the Schedule needs further amendment. It occurs to me that he may have done so, but if not I will not press it.
§ Amendment moved—
Page 9, line 31, at end insert—
("(4) Where an inspector is obstructed in the execution of his powers or duties under this Act. the person obstructing him shall be guilty of an offence; and where an inspector is so obstructed in a factory, the occupier of that factory shall be guilty of an offence.").—(Lord Drumalbyn.)
§ Amendment moved—
§ Page 12, line 7, at end insert ("and (except for offences committed before the coming into force of this Act) the words 'and liable to a fine not exceeding twenty pounds' in subsection (4).").—(Lord Drumalbyn.)
§ In the Title:
§ Amendment moved—
§ Line 4, after ("matters") insert ("and in relation to the obstruction of inspectors").—(Lord Drumalbyn.)