HC Standing Committee [Family Allowances and National Insurance Bill]
|Document type:||public statement|
|Document kind:||House of Commons Committee|
|Venue:||House of Commons|
|Source:||Hansard HC Standing Committee B [34-44]|
|Editorial comments:||1220-1250. Extract from the First Sitting. The debate on the amendment to which MT spoke is reproduced in full. She spoke at c.38.|
|Themes:||Social security and welfare|
—(Extension of class of accidents Treated as arising out of employment.)
I beg to move, in page 3, line 1, after "after", to insert "or which has happened within seven years before".
I suggest that it might be convenient if we discuss also the following Amendments:
In page 3, line 13, after "arising" to insert "or as having arisen".
In line 15, after "arises" to insert "or arose".
In line 17, after "is" to insert "or was".
In line 21, after "is" to insert "or was".
In line 21, after "consists" to insert "or consisted".
In line 22, after "being" to insert "or having been".
Thank you, Mr. Hynd. The six Amendments to which you have referred are consequential on the main Amendment which, though it appears simple, is admittedly difficult. By that curious quirk of Parliamentary procedure, before we have decided the final shape of Clause 2 we have to begin to discuss whether it ought to be made retrospective. The Amendment plainly asks for the provisions of this Clause to be applied retrospectively for a period of seven years. As drafted, it would cover an accident happening after the coming into force of this section. The Amendment would mean that the Clause would cover an accident happening after the coming into force of this section and for seven years previously. This is always a problem when particular cases, or a series of cases, lead to reform. Can one do anything to give restitution 35to those cases which were so bad as to cause public opinion to demand some change in the law?
I suppose that this Clause derives from the Richardson case more than from any other case in recent times. The Richardson case is not the only one, and it was, I think, decided largely by reference to a similar case which occurred in 1951. The Committee will probably remember that Richardson was a bus conductor. He was the victim of an assault by youths who jumped on his bus and set about him like a gang of thugs and left him seriously injured. He was in the constituency of my hon. Friend the Member for Salford, East (Mr. Frank Allaun). My hon. Friend has recently been in touch with Mr. Richardson. Mr. Richardson was so badly hurt that he was under treatment and in hospital for about 12 months. He has been very badly incapacitated and is having frequent spells of illness due to the severe injuries he received. It is a grievous case, but unhappily one of quite a few that we read about these days. It was decided in his case that his injuries did not arise out of his employment. They were sustained in the course of his employment but did not arise out of it.
The Clause is designed to extend industrial injury cover to cases of that kind. I do not want to dwell in detail on what the Clause does, but I think the Committee will readily see that it would have covered the Richardson case had it been part of our legislation when that assault took place. From the day this Bill becomes an Act of Parliament, cases similar to the Richardson case, and those which may be much less serious and which may arise in different circumstances, will, notwithstanding early decisions, be covered by the extended scope of the Clause.
The narrow point of the Amendment is to backdate the effect of the Clause. Is this a feasible proposition? Obviously it would cover cases up to seven years but would leave out the case of eight or nine years ago. These are inevitable difficulties when we draw a line, and I know the objections of many hon. Members, on both sides of the House, in some circumstances, to what is called retrospective legislation, but it seems a 36great shame if, while we are making better provisions for the future, we cannot go back a bit and make some restitution to those who have grievously suffered in the past.
I do not know whether in all cases people injured in the circumstances of Mr. Richardson would be without some form of compensation. It would depend largely on what rights they were able to establish in the civil courts, but quite clearly they would not be covered by the Industrial Injuries Scheme.
I do not want to spend much time on this, because it is a narrow point. It is one to which I am sure the Minister has given a good deal of thought, and we should welcome his views. We on this side of the Committee feel very strongly that, when it is possible to bring in a change in the law, we should bring in grievous cases which were themselves the main spring in changing the law. I ask the Minister to be sympathetic to the proposals to back-date the effect of the Clause for seven years.
I support the Amendments. We all recognise that often proposed restrictive legislation presents practical difficulties which rule it out, but I do not think that this is that kind of case. The Amendments could be written into the Bill and could work fairly smoothly.
Clause 2 removes a certain number of anomalies in the Industrial Injuries Scheme which have been recognised for many years. For many years the trade unions, in particular, and to some extent other bodies have been pointing out certain anomalies in the scheme. The Clause will remove some of the things about which they have been complaining, though not others, with which we shall deal in other Amendments. At any rate, on this point there has been pressure for several years.
When I was working in a trade union office more than seven years ago, a memorandum in connection with the first quinquennial review of the Scheme mentioned the question of assaults in the course of employment, and many other matters, and by that time we had evidence that certain people were being left out of the operation of the scheme in ways which seemed to be completely unfair. 37
Without being too controversial, it seems that in their legislative programme the Government have not only failed to do many things for the national good but have delayed carrying forward many reforms about which there is general agreement and for which the case is fairly obvious and agreed on both sides. I will not go into the reasons for it, but, because of this failure, if they have a chance to make a piece of reform retrospective, they should take the opportunity to do so.
My hon. Friend the Member for Sowerby (Mr. Houghton) mentioned the Richardson case in Salford. My union, the Transport and General Workers' Union, put up not only the usual fight but a spectacular fight for this man in the High Court, and I feel that this was part of the pressure which led the Ministry to produce this Bill.
The Richardson case is one of many which have occurred during the last seven years. I have been looking at some of the National Insurance Commissioner's decisions on these cases. There is a case in 1956 of an insurance broker's agent who was murdered by a man to whom he gave a lift in his car. The Commissioner held that the victim shared a danger common to all strangers with whom the murderer came in contact, and it was not proved that death by accident arose out of his employment. In that case the murder was in the course of employment, and it would come within the scope of the Clause if it covered cases which occurred within the last seven years.
In 1959 a workman's leg was fractured by an unprovoked assault by one of his gang after some of them had been drinking to celebrate the Christmas holidays. The Commissioner held that the accident did not arise out of his employment, which did not expose him to a special risk of assault. It was necessary to prove that the employment involved a special risk of a sort. The effect of the Clause would be to remove the need to prove that, and this is another case which would be within the scope of the Clause if it were amended but which was not within the scope of the Act at the time.
The Clause deals with such things as being struck by lightning. In 1958 an omnibus driver was temporarily blinded when his windscreen was struck by light38ning. It was held that he did not suffer injury arising out of his employment because he ran no greater risk of being injured than other persons in the area.
In 1960, an agricultural worker was struck by lightning and killed while walking across a field. It was held that the accident did not arise out of his employment because a workman in an open field was not exposed to greater risk than the general public.
Those are a few of the printed decisions, and the printed decisions are only a small proportion of the total decisions arrived at by the authorities under the Act. I submit that this kind of case ought to be included in the scope of the Industrial Injuries Scheme. The Clause will include such cases in future, and there seems no practical reason for not back-dating it for seven years, or some other such period as the Committee may think suitable.
The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mrs. Margaret Thatcher)
The hon. Member for Sowerby (Mr. Houghton) put his finger on the two main points in the Clause. One is that it is an extension of scope and not a Clause to reform the law with regard to a particular case. It is definitely an extension of scope, designed to take into cover all accidents regarded as common risks, provided that they occur in the course of employment. Therefore, it does not come within the category of cases for which retrospective legislation might be justified in order to overturn a decision in one case. It is definitely an extension of the scope of the existing law.
The second point upon which the hon. Gentleman put his finger is whether retrospection for seven years is a feasible proposition in this type of case. He mentioned the case of Mr. Clifford Richardson, which all of us have in mind. We learned that Mr. Richardson was not currently in receipt of any benefit. I had therefore hoped that he might be back at work. Perhaps he is.
Considering the Amendment from the viewpoint whether this is a feasible proposition, we must bear in mind its effect upon all the cases which might come within its scope restrospectively if it were passed. The hon. Gentleman knows 39that where a case has gone to the Commissioner for determination whether there was an industrial accident, the decision of the court is absolutely final. This is by virtue of Section 49 of the governing Act. Therefore, where decisions have been reached by a tribunal they are final and cannot be overturned or undone. Nor should they be undone in the future, because if a decision is final people obviously adjust their courses of action in accordance with the final decision. Any case which has been so determined and adjudicated could not possibly be affected by the Amendment. This would give rise to the anomaly that the cases which have been decided in the past could not be touched, whereas there would be certain persons who were perhaps so sure, in view of the decisions, that their cases were not within the scope of the then existing law——
Mr. Julius Silverman
The decisions may be final as quasi-judicial decisions but they are not final in relation to future legislation. After all, Parliament is a sovereign body. If Parliament chooses to say that a decision is not final, the finality is destroyed.
But the finality would not be destroyed by the Amendment. If decisions are final, and they have been adjudicated by a tribunal, it would be very unwise to disturb the finality, certainly for a period going back as long as this. The Amendment will not touch the finality which exists at present. Therefore, those who have not had their claims determined would probably be at an advantage compared with those who have.
The hon. Member for East Ham, North (Mr. Prentice) touched upon the practical difficulties. There would be many practical difficulties involved in going back for seven years, because many of these cases are in essence those in which the facts have to be found. Some of the witnesses of accidents which occurred five, six or seven years ago might be dead. Some might be untraceable. These are cases which depend upon a finding of fact. To go back and to try for the first time to sift evidence in cases which occurred five, six or seven years ago would lead to very considerable practical difficulties indeed. To my 40knowledge there have been very few, if any, occasions on which the full extension and scope of legislation has been made retrospective, for these reasons and on these grounds.
I therefore hope that the Committee will reject the Amendment. I will just mention the case of Richardson. Even if we went back under the terms of the Amendment for some seven years, and if we undid the Section which required the decision to be treated as final, this would not touch Mr. Richardson's case, which happened in August, 1954. That was outside the seven years.
Decisions of the Commissioner and other authorities under the Act can be reviewed under existing legislation. The Joint Parliamentary Secretary mentioned Section 49, which provides that a decision of the Commissioner shall be final. However, Section 50 of the parent Act says:
"Any decision under this Act of an insurance officer, a local appeal tribunal or the Commissioner may be reviewed ... if (a) he or they is or are satisfied that ... (b) there has been any relevant change of circumstances since the decision was given".
This normally means a change in the facts, but it could equally apply to a change in the law. If there has been a change in the law since a decision was given, that is already covered. In any case, if for reasons which I as a non-lawyer do not appreciate this does not cover the point, a very simple Amendment to Section 49 would overcome the difficulty the hon. Lady had in mind, if the Government were prepared to accept what we are trying to do in the Amendment. I do not think that she made out a formidable case for not accepting the Amendment.
I do not think that the Joint Parliamentary Secretary is correct about the finality of the decision. Any such quasi-judicial decision can obviously be altered and set aside by new legislation. There is no doubt that Parliament is a sovereign body and can do what it chooses. It has been said by a constitutional expert that Parliament can by law make a man a woman or a woman a man.
It has been said that Parliament can do anything except that.41
I am not even sure about that, because it can make such a decision to operate in law.
There is no doubt that the finality of the decision could be altered. Admittedly there are practical difficulties involved in going back seven years, but most of these cases have already come before tribunals. The great majority of these cases are ones which tribunals have already turned down. Tribunals have made their findings of fact and have turned the cases down because, having made their findings a fact, they have decided that the facts did not constitute an accident "arising out of employment". I do not think that the difficulties would be as formidable as the hon. Lady suggested. There would probably be only a limited number of cases and the cost would not be very great.
As my hon. Friend the Member for East Ham, North (Mr. Prentice) said, the objections which usually apply to retrospective legislation do not apply in this case. The usual objection to retrospective legislation is that people should know their commitments and should not be prejudiced financially in any way which they have not contemplated. I do not think that this objection arises here. This is merely a question of putting right a number of cases which I think it is now admitted are moral injustices. It falls within a limited scope. I am certain that the Government could, without any very great administrative difficulty, put these matters right by accepting this simple Amendment.
I understand that it would be for the convenience of the Committee if we could dispose of this Amendment within the next five or six minutes. I do not wish to detain the Committee for more than two or three minutes. The Joint Parliamentary Secretary referred to Mr. Richardson. Hon. Members may be interested to know that I have just received further details about him. He was absent from work for fifty weeks on account of the attack made upon him. Three of his assailants, of whom there were many, were sentenced to three years' imprisonment. three were sent to Borstal. Another three were put on probation. That was a formidable gang of young men to attack someone on the landing stage of 42a bus. Apparently, had they been normal passengers on the bus the special risk would probably have applied to him and it might have been judged to be an accident arising out of his employment. However, as the assailants boarded the bus for the attack, that was not the decision of the court.
Mr. Richardson is now back at work and is doing a light job for the Salford Corporation, for whom he worked, although he has had eight weeks' sickness recently as a consequence of his severe head injuries, which necessitated surgical treatment. He received sickness benefit throughout the whole of his total incapacity. We fully understand that. I imagine that no financial compensation has been obtained from those who attacked him. Probably none of them had any money to pay. That is the sad story of Mr. Clifford Richardson.
What surprises me about the reply of the Joint Parliamentary Secretary was her statement that even if we changed the law we could not overturn judgments made in particular cases. That is a reflection upon the resoucefulness of the Minister. I thought that he could do anything if he set his mind to it. I cannot think that Parliament is inhibited from righting a wrong, if it believes it to be a wrong, even though on the law as it stood at the time the courts reached a certain decision. In some circumstances there are ex gratia payments. There is no law to prevent the Minister from treating Mr. Richardson and similar cases as if Clause 2 had been in operation at the time of their accidents. This would not upset the decisions of the courts. It would be no rebuke to Her Majesty's judges or to the National Insurance Commissioner or anyone else who might have decided cases on the law as it then stood.
There must be some way round this. If there is not a way round it in our Amendment, the Minister should suggest the way in which it can be done. The Opposition is always under the difficulty that we do not know all the reasons. The reason why I have to bring all these books is that I cannot bring any civil servants.
I, too, have a lot of books.
There is no need for the Joint Parliamentary Secretary to 43have books when all these civil servants are here.
This could be done if the Minister set his mind to it. We think that this is a point of substance. I know that Mr. Richardson and a few other persons in his category are watching this morning's proceedings with interest to see whether the Committee feels able to cover them retrospectively. Unless the Minister has something more encouraging to say, it will be necessary for my hon. Friends and I to register our displeasure at the reply which we have received on the Amendment.
I wish to raise two points. The first point concerns the Joint Parliamentary Secretary's reply on the injustice which might arise if some cases which had not yet been confirmed were reviewed to the advantage of the injured person and some of the others were not. This is a strange argument. It is in effect saying that if we can do good in part but not for everybody, we should not do good at all. It would not deter me from accepting the Amendment even if there were a number of cases which had not been confirmed. On the interpretation of the hon. Lady, if we could cover those it would be an advantage. It would help many people who otherwise would not get any benefit under this legislation.
Apart from that, I am not convinced that it would not be possible to reopen under new legislation even cases which have been confirmed. Even if it proves difficult, it could be done. If it could not be done, as she argued, that would not be sufficient reason not to be retrospective in legislation and to cover the cases which have not been decided.
Secondly, in considering retrospective legislation the two reasons which normally deter us from engaging upon it—they are reasons which generally meet with my approval when they are advanced by a member of the Government—are, first, that it would punish a number of people who in good faith did 44what they were doing at the time when the retrospective legislation did not exist. That deterring argument goes by the board here; far from punishing anyone, retrospection would only help a number of unfortunate persons who would otherwise not be covered by any payments whatever. 12.45 p.m.
The second important argument against retrospective legislation which I normally find rather convincing is that we might, if we have too much of it, bring the existing law into contempt. This is an important point and it should be treated with the full weight which it deserves. It is often argued that people will begin to speculate about future legislation if they see that Parliament is chopping and changing all the time. Retrospection must, therefore, be used with care.
But here we are dealing with a limited number of cases in which, by the genuine process of self-education, public opinion and Parliament have been watching the cases which have developed and have come to the conclusion that the formulations which we have used in the past are too narrow and misleading and may defeat the purposes of Parliament, merely because the formulations are too limited and too strict.
There can be no question of bringing the law into contempt in this case. There can be only a beneficial effect in Parliament, as a sensible body of men and women, saying that because we have realised that these restrictive formulations have prevented the law from doing what was intended, we wish to put the matter right. That is an additional reason for saying that the Government should think again and either accept the Amendment or bring it forward later in another form which will be more acceptable and convenient to the Minister.
Question put, That those words be there inserted:—
The Committee divided: Ayes 8 Noes 12. Division No.5.]
McKay, John (Wallsend)
Mendelson, J. J.
Prentice, R. E.
Silverman, Julius (Aston)
Boyd-Carpenter, Rt. Hon. John
Browne, Percy (Torrington)
Hilf, Mrs. Eveline (Wythenshawe)
Johnson, Dr. Donald (Carlisle)
Thatcher, Mrs. Margaret