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 [167-90]|
|Editorial comments:||1115-1220. Extract from the Fourth Sitting. The debate on the amendment to which MT spoke is reproduced in full. She spoke at cc.171, 181, and 183.|
|Themes:||Social security and welfare|
—(Extension of class of accidents treated as arising in course of employment.)
For the purpose of the National Insurance (Industrial Injuries) Act, 1946 to 1960, and of section two of this Act an accident happening after the coming into force of this section shall be treated (where it would not be apart from this section) as arising in the course of the employment of a person if it arises during any authorised or reasonable intermission in the performance of his duties at any time within his working hours, whether he is working at his employer's premises or elsewhere.—[Mr. Prentice].
Brought up, and read the First time.
I beg to move, That the Clause be read a Second time.
The purpose of the Clause is to extend the industrial injuries scheme and particularly to deal with breaks in employment. The Committee will be aware that this point was discussed on Second Reading. What we had in mind particularly was the break in employment for those working away from their employers' premises. I should like to begin by quoting words which I quoted on a previous Amendment. They are words which we should bear in mind in relation to this problem.
Lord Loreburn in the case of Moore v. The Manchester Liners in 1910 said:
"I think an accident befalls a man in the course of his employment if it occurs whilst he is doing what a man so employed may reasonably do within the time when he is employed and at a place where he may reasonably be during that time."
The words that matter here are:
"where he may reasonably be during that time."
Our experience is that those who work away from their employers' premises, and I think particularly of transport workers, are treated for the purposes of the Industrial Injuries Act in a much narrower way than are people who work on premises which can be easily defined.
The man who works in a factory, shop or office or in some other premises clearly defined enters the course of his employment when he crosses the boundary of his employers' premises and he does not leave the course of his employment until he crosses that boundary at the end of the day's work. If during the hours of work the man leaves the actual place of work to go to lunch or 168a tea-break or to go to the toilet or for any other purpose which is not a purpose required by the employer and is right outside the normal course of his day's work he is still within the course of employment under the Act. There have been many such cases.
This is reasonable. In the course of his time at work the man does things which are reasonably incidental to his employment and for which the employer provides but which are not precisely part of the work for which the employer pays. There is one case in the "Index to Commissioner's Decisions'—R (1) 96/53—of
"An iron moulder, while trying to get to the canteen, was knocked down and injured by an onrush of fellow workmen intent on the same purpose. Claim allowed."
This illustrates rather dramatically what I have in mind. The worker was covered by the Act.
The position of a bus driver or conductor or a lorry driver or his mate is entirely different. As soon as he leaves the vehicle itself, in most instances, although there are certain exceptions, he is outside the scope of his employment. I have had the unhappy job when I was employed by the Transport and General Workers' Union of trying to argue the case before a Commissioner of people killed or injured and who were generally found to be outside the scope of the Act.
I remember arguing for a widow whose husband was killed in the street when he was crossing the road from his bus to a London Transport garage on the other side where there was a canteen. He was knocked down and killed within a yard or two of his bus, but that was held to be outside the scope of the Act although he was going to his employers' premises on the other side of the road during a break of a few minutes at the terminus. He was held to be taking a risk common to the general public.
I do not think that this is reasonable. A man in that position should be treated in precisely the same way as a man who is going within a factory from his workbench to his employer's canteen. There does not seem to be any real argument against this. There are certain fine distinctions and I should like to quote another judgment to emphasise this. I have in mind R (1) 38/59: 169
"Bus conductor injured whilst crossing road to transport office to deposit ticket machine preparatory to taking meal at canteen. He was not obliged to visit canteen and journey was made for his own purposes and not for his employers. Distinction drawn between depositing ticket machine at office during off-duty period, and doing so at completion of day's work."
If at the end of his day's work he had been taking the ticket machine to the office and had been injured he would have been injured in the course of his employment, but because he was doing this halfway through the day to get rid of the machine for a short time for his own convenience in order to get a meal he was held not to be in the course of his employment.
The Clause is designed to put this matter right. I have referred particularly to bus drivers and conductors, but the same principle applies to commercial transport. It applies to the lorry driver and his mate who on a long journey many miles away from home or their employers' premises pull up during the course of the day and go to a lavatory or a café during the course of their employment. They ought to be in the same position as those who are on the premises of their employers. I admit that this is a difficult question and that the Clause itself would lead to difficulties of interpretation, but they would be difficulties no greater than those which occur in the borderline cases which I have mentioned.
My own view is that probably we ought to exclude—though there is argument about this—the case of a man who is going for a hour's lunch break away from his employers' premises or away from his vehicle which is parked somewhere. I should want to include short breaks for coffee or tea or for going to the toilet and also a break to go for a meal, including the lunch break, if the man is actually going to the employers' premises, as was the case with the man with the ticket machine who was going to his employers' canteen. I should like to draw a borderline for those workers in about the same place as it is now drawn for workers in factories or offices.
The wording of the Clause is similar, though not quite the same, as that of the amendment submitted by the Transport and General Workers' Union to 170the Minister on counsel's advice some time ago. He turned it down. The original drafting included the words "during any authorised intermission". We have made it "authorised or reasonable intermission." We have done this because frequently workers who take short breaks are not specifically authorised to do so but their action would be regarded as reasonable by employers and everybody else.
This is a definition which would require interpretation in borderline cases, but that does not absolve us from making the change. There are borderline cases now and our job is to draw the borderline in a place where it is fair between one group of workers and another. At the moment the law is not fair.
Mr. Percy Browne
As most hon. Members must know by now, I am connected with long-distance transport. I have listened with a great deal of interest to what the hon. Member for East Ham, North (Mr. Prentice) has said. If he will forgive my saying so, I think that he put it as well and more briefly on Second Reading when he said:
"Generally speaking, if he is injured in the corridor, or on the stairs, he is still in the course of his employment. The trouble is that a bus or lorry driver is out of the course of his employment when he steps out of the driving cab."—[Official Report, 9th November, 1961; Vol. 648, c. 1215.]
This is the crux of the matter.
Although the Clause is open to some criticism, it defines more closely the time during which and the conditions under which a man could draw benefit for injury. We want to define that a man is able to draw benefit if he is injured during his shift or working day. That would cover the long-distance driver or the bus driver. He, of necessity, must have his breaks during his statutory hours or turn-round, and as long as they are within his working day surely they are within his employment and, their being such, he should be able to draw benefit.
I am advised that the Clause as it stands regularises a position which already exists whereby, generally speaking, insurance companies pay for injury that occurs in the course of employment but does not actually arise from the employment. I shall be interested to hear 171what my hon. Friend the Joint Parliamentary Secretary has to say on this point. I doubt whether Clause 2 (c) covers the case. I therefore lean towards the new Clause, but I am certain that we must try to define more closely what we mean by "during employment" as it affects the long-distance driver and the bus driver.
The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mrs. Margaret Thatcher)
This is a very complex new Clause as the hon. Member for East Ham, North (Mr. Prentice) realises. We are in the difficulty that what the Clause purports to do and what the hon. Member wants it to do do not appear to be one and the same thing. I must therefore ask the Committee to address their minds to the meaning which the words of the Clause would carry if incorporated in the Bill.
I am between the hon. Member for East Ham, North and the hon. Member for Sowerby (Mr. Houghton) in that the hon. Member for East Ham, North will not like it if I do not give adequate reasons and the hon. Member for Sowerby will not like it if I go on for too long. I am perhaps in the position of the poet who said
"How happy could I be with either,".
The Clause is not limited in scope to transport workers. I realise how difficult it is to explain to claimants, when their claim fails, the legal subtlety on which it fails.
I know full well that when one is arguing a case, one is generally pleased to win by virtue of a legal subtlety, but very unhappy to lose by it, when the layman realises that there are general principles which he thinks should apply to his case. Of course, one sometimes feels a justified sense of grievance in being defeated by an inconsistency or by some small nicety of fact upon which the whole case turns.
I know the difficulties that arise in connection with transport workers and bus conductors and drivers who meet with accidents, because of what I may call the 8, 10 or 11 minutes break, when the 10 minute break is allowed and the 8 minute one is not. That is the sort of case dealt with in C.W.I.2/61, in 172which a bus driver left his vehicle for eleven minutes and was injured in the street, and it was held that the injury was sustained in the course of his employment because he was in charge of the vehicle at the time, and by reason of his employment he had to keep watch on his vehicle for the whole time.
As the hon. Member knows, my right hon. [ John Boyd-Carpenter] Friend has given very extensive consideration to extending the scope of the phrase "in the course of employment." I would not entirely agree with all that the hon. Member said about the present meaning of the Clause. The phrase "in the course of employment" means, according to Halsbury, that—
"a person is only in the course of his employment while doing something which he is under an obligation, express or implied, to his employer to do, or something reasonably incidental thereto."
There are cases, and the hon. Member quoted them when we debated Clause 2, when claims fail because, although the accident occurred on the employer's premises, the person concerned was not acting in the course of the employment. I wonder if he has inserted the phrase "reasonable intermission" to try to deal with these particular cases.
In regard to inconsistency, the cases so far turned upon whether the break in employment was an intermission or whether the person concerned was under his employer's control at the material time. There is the dual test, because of the phrase—
"arising out of and in the course of the employment."
We have just made a very considerable extension of the meaning of the phrase "arising out of the employment", and we must therefore consider the extended meaning of that phrase together with what the hon. Member wishes to do. The two things will go together.
May I therefore give some examples of what I think the Clause does, based on its present meaning? The phrase "authorised intermission" imports no such limitation as the hon. Member described in his speech. It is not confined to the lunch break; indeed, it may well include very much longer intervals than the lunch break, and it would include lunch breaks at the present time. It would mean that if someone had an accident during the lunch break, we 173should not have to determine whether or not it arose in the course of employment, because this Clause says that it shall be treated as if it arose in the course of employment. We are therefore in an extremely difficult position. May I give some examples?
I think the difficulty about an hour's break or an even longer break may well be met in the Clause, because this is something which the Commissioner would have to interpret, and he could cover what are working hours and exclude very long absences from employment.
I have considered that and the drafting of the Clause very closely, and I put this point to the [ R. E. Prentice] hon. Member. Working hours in some cases may be from 9 a.m. to 5 p.m. or from 8 a.m. to 6 p.m., but transport workers' hours may be ten hours in a day and may be any ten hours in the twenty-four. The working hours of the matron of an old people's home are all the time, unless she has an authorised intermission and is off duty or goes out. There are a number of similar employments. Let us take the case of the teacher who takes a party of children abroad on holiday. Her working hours are the whole time, unless she gets off duty time or an authorised intermission. I do not think that what the hon. Member seeks to do by these words would be achieved by a reasonable or even a legal interpretation of the Clause as it stands.
Surely, a matron in an old person's home or a teacher taking a party of children abroad is recognised as being on duty the whole time. The man working in a factory has a 40 hour week, divided into five days of eight hours, again broken up into two shifts of four hours. He works in the morning, and after the lunch break he starts again.
Yes, but that is not what the Clause says. It is an authorised intermission. I must advise the Committee. The Committee has a touching faith in my right [ John Boyd-Carpenter] hon. Friend's advisers and in their ability to achieve anything which the Committee wants to do. His advisers are advising me that an authorised intermission includes the lunch break, and that it includes longer periods between the shifts.174
But not within working hours.
I must tell the [ John McCann] hon. Gentleman that these advisers, in which the Committee has such touching faith, tell me that, and my own interpretation is that it is correct.
Let us take the case of a worker who is going home to lunch when he stops to watch a cricket match and is hit by a cricket ball, which is an object within the meaning of Clause 2, by which we have extended the interpretation of the phrase "arising out of the employment". If a man who was going home to lunch met with such an accident, it would be treated as in the course of his employment because this Clause says so. Therefore, an ordinary transport accident, usually arising from negligence, occurring to someone who is not in the course of his employment, is treated as an industrial accident. A shop assistant might go out to do some shopping during the lunch break. Under this Clause she is in the course of her employment. If an accident happens to her or she is assaulted in the shop, may be a long way from her employment, the Clause will still cover her and make the accident an industrial accident.
There are many other examples which could be given, but I think the Committee would agree that the phrase "authorised intermission", including as it does the lunch break, would extend the scope of industrial injury to accidents which are not industrial accidents at all and which have no connection whatever with the employment.
If the hon. Lady does not like these words, can she find any better ones?
I do not think the interjection of the hon. Member is warranted.
We have pointed out some of these difficulties, and my right [ John Boyd Carpenter] hon. Friend, in a letter to the T.U.C., dated 3rd August, 1961, pointed out that we have been trying to meet this point. He pointed out some of the difficulties arising from this Clause and gave some examples. Perhaps hon. Members would like me to read it, because it is on the sort of point that I have been making. In it, 175he used phrases very similar to those I have been using. He said:
"I have given very careful consideration to your suggestion, but I am afraid my conclusion must be that it does not really solve the difficulties to which I drew attention at the meeting. I think we are agreed that great care is necessary lest the basic principle of causal connection between the employment and the accident be so eroded as to make the separate existence of the industrial injuries scheme difficult to justify. Your proposed formula deems a person to be in the course of his employment throughout ‘any authorised intermission in the performance of his duties during his working hours’ wherever he may be and whatever he may be doing. It seems to me that so wide an extension would involve a serious departure from the principle of causal connection. For instance, it would appear to extend cover to a person not only while he is using a break for the purpose for which it is primarily intended, e.g., for obtaining a meal, but also while he is engaged during such a break in some quite different pursuit, such as playing football in a public recreation ground or visiting a shop to make a private purchase. It seems, furthermore, to extend cover to the man who is given special permission to interrupt his work for some personal purpose, such as to visit a hospital out-patient department or to go home to deal with a domestic emergency."
That is an extract from the letter from my right hon. Friend, but I do not think the hon. Member would wish me to read it all out.
The hon. Lady must not mind me. I was trying to be helpful. I hope she will not think that anything I said should impede the fullest explanation of her case.
I would not accept what the [ Douglas Houghton] hon. Gentleman said earlier as necessarily trying to be helpful.
May I now deal with "reasonable intermission"? My right hon. Friend pointed out—and went on to develop the point in the letter—that there would be a number of inconsistencies arising from a phrase like "reasonable intermission". For instance, a person may be given permission to visit a dentist during his normal working hours. He may have an accident, maybe a road accident, but because this is a reasonable intermission during working hours, this is an industrial accident by virtue of this Clause. If he goes to the dentist in his own time, say on a Saturday morning when he is not working or after his working hours, it is not an industrial accident, and therefore the Clause gives rise to a number of inconsistencies, 176which I will not elaborate, which are characteristic of the present law.
It means that there is a preferential position for the employee during the "authorised intermission" over and above that which he enjoys at work. As the hon. Member knows at work we have to address our mind to the very important question whether an accident has occurred in the course of the employment. If an accident occurs during an authorised intermission, it is treated as such, and we therefore get over that hurdle straight away. It may well mean that an accident which occurred during an authorised intermission would be an industrial accident while a similar accident occurring at work would not be. I wonder again if the words "or reasonable intermission" would cover that case while a man was at work, but I do not think that they would necessarily do so.
I think I have said enough to convince the Committee that if this Clause is accepted as it stands, it would import a whole number of accidents into the industrial injuries scheme without any connection whatsoever with the employment, accidents which, in common parlance or even in legal parlance, could not possibly be termed industrial accidents. My right hon. Friend has given very extensive consideration to this Amendment and also to other possible Amendments to try to limit exemption for certain arbitrary types of accident in connection with certain groups of workers. He has not been successful so far in producing an Amendment or a new Clause which would satisfy the purposes of the scheme without inconsistency, but it is not for lack of trying, and I would impress that upon the [ Douglas Houghton] hon. Member for Sowerby. We realise that it is not always very easy to analyse a difficulty and there are so many difficulties to which we cannot find solutions so that we could put into the Bill exactly what we are trying to put into it, and no more. So far, we have not been successful, and therefore my right hon. Friend advises the Committee to reject the proposed new Clause.
I cannot resist making a brief comment on what the hon. Lady has said. I think that we all appreciate the difficulty of finding the right formula 177here, though I do not think we ought to accept that everything has been done to meet the point and that nothing more is possible. I cannot resist saying that I think the Government have approached this problem over a number of years from the point of view that this is difficult and that there were certain reasons for not doing anything, rather than making a serious attempt to find the right formula. If the difficulty is a difficulty of timing the break, whether a break for an hour or longer, is there any reason why another subsection should not be added providing that the break for the purpose of this Clause shall be taken to be a break of less than sixty minutes or forty minutes, or whatever term we chose to use? Admittedly, that also would create anomalies, but after all it would then include the kind of short break that we have in mind. 11.45 a.m.
Then the hon. Lady talked about cases of people going away from their work to do some shopping, or going to the dentist and that sort of thing, with the employer's permission. I really do think that that is something of a red herring. The crucial words in the original Act still are:
"arising out of and in the course of employment".
We have here a Clause to extend the course of employment, but the words "arising out of employment" are still there. To go to the dentist does not arise out of employment. What has been ruled over the years is that a number of things which people normally do during their working hours, such as going for a cup of tea at the employer's canteen, are arising out of employment, and we want to give the transport workers and other groups the benefit of that. But we would not give them the benefit of going to the dentist, going on a private visit or to the hospital, because those things are already excluded.
Would the [ R. E. Prentice] hon. Member excuse me for one moment? I think he is ignoring the extensions in Clause 2. If the workman goes to the dentist during a reasonable intermission, it is in the course of his employment. If he meets with a road accident it arises from someone else's negligence. If the 178hon. Member will look at Clause 2, he will see that we have extended the "arising out of employment" provision, where the accident is caused by another person's negligence, where it is caused by an object, or where it is caused by lightning. If he takes these two Clauses together, he will see that such an accident would be deemed by virtue of his new Clause, and the extended definition of Clause 2, to arise in the course of the employment, and to arise out of it.
I hate to get involved in a legalistic argument with the hon. Lady, especially as she is a lawyer and I am not, but I have had something to do with arguing these things with the Commissioner. The sort of situation that arises is this, that there is a chain of events, and if one of those events does not take place, or the claimant takes himself out of the course of his employment, then that destroys the connection. If he were going to the dentist and was then knocked over by someone else's misconduct, I think he would have broken the connection with his employment by going to the dentist. That, I think, is the way the Commissioner would interpret a case of this kind, as he has interpreted similar cases in the past. It seems to me that many of these arguments really do not stand up to close examination, and the formula would be impossible. I think the hon. Lady put her finger on the real sort of difficulty that has arisen early in her remarks, when she said that the test has always been whether the man is his own master, or whether he is under the employer's control.
I think that is a very important principle, and that is why I said that I thought someone going away for an hour's lunch break, in which he is a free agent and can go where he likes, is really outside and should be outside the scope of employment. But are bus crews at a terminus really their own masters if they have a break of ten or fifteen minutes? Admittedly, within very narrow limits they are, but they cannot go far away; they cannot go and do something far removed from their employment. The terms of their employment mean that what they do during that period is confined within a very narrow limit, and I should have thought that therefore, we 179return to the thought that these people, and people in other employment like that, should be treated in the same way as those who work on the employer's premises, and in the course of their day's work do something away from their place of work. That is the principle here, and we want to achieve the same equality between one class of workpeople and another.
I think that the very important point that the noble Lady has made about the effect of Clause 2 in the present Bill on the general principle of
"arising out of his employment".
should be cleared up whilst this Committee is still in session. I cannot see how she can base her rejection of our Clause, or a similar one if this particular one is found to be faulty, on this particular contention. Whatever new additions are put into the law by Clause 2, it seems to me that none of them has the power to override the general principle of
"arising out of his employment".
If that were so then, indeed, many of the arguments that the Minister has put to us in the course of the Debates on this Bill would have been beside the point. He has said all the time that we must be careful not to weaken this particular scheme, because otherwise we might reach a situation in which people would say: "Well, you add all sorts of cover to this, and you make the connection very tenuous indeed."
Taking one of the examples that the hon. Lady has put to the Committee, I am quite certain that, if somebody gains permission from his employer to have two or three hours off to go to a hospital which might be 16 miles away—and that is the picture which the hon. Lady was painting to the Committee, in order to destroy the case put forward by my hon. Friend; that is the picture she implied, and the implication is more powerful than her actual painting of the detail of the picture—and was then hit by something, or engaged in some activity not at all connected with his employment and not in the mind of his employer when permission was granted, does the hon. Lady argue that under this new Clause anything that happens to him when he goes to this hospitals will, in fact, come under the Bill if the 180Clause proposed by my hon. Friend were carried? Of course it would not.
I think that these pictures were painted, as I think my right hon. Friend the Member for Sowerby (Mr. Houghton) hinted when he interrupted the hon. Lady, as examples of Aunt Sallies which she then proceeded to knock down, to make it appear quite absurd to move at all in the direction which my hon. Friend the Member for East Ham, North (Mr. Prentice) desired. That was really the purpose of her speech to the Committee, because even if it be admitted that the particular phrase "authorised or reasonable intermission" is not the best way of meeting this particular situation and the many cases that my hon. Friend quoted, then she ought to have told the Committee that she was all in favour of doing what my hon. Friend desires the Minister to do, and then to produce some ideas and suggestions as to how it could be done. But all she has done for us is to produce most absurd examples to prove that nothing could be done, that the whole burden of the case put forward by my hon. Friend was most unreasonable, and then to proceed to say that it is terribly easy to criticise and analyse, but much more difficult to put forward watertight new proposals. I assume that most hon. Members of the Committee knew that before they became Members of the Committee, and there is no need to tell us that.
I should like to ask the Minister, if he objects to the particular phrasing of this Clause, if it is not possible for him to give us a promise that he will address himself to the particular points made by my hon. Friend the Member for East Ham, North, and I say this in all seriousness. I agree with the hon. Lady on this point, that it is quite possible to argue that one may have a desire to do the things that my hon. Friend wants to do, that one might well find a formula which appears at first sight to be perfect—although he never claimed it to be perfect—but that this might not be the best way of doing it. The Minister has an easy way out. Could he give the Committee a promise, which would satisfy me, that even if the particular text is not appropriate he accepts all the examples that my hon. Friend the Member for East Ham, North has 181given of the serious difficulties that affect many people, particularly in transport.
I should like to add to the formulation used by my hon. Friend the Member for East Ham, North about when they are tied to their vehicle. They are only limited by the area in which they can move when they go away for a fifteen minutes' break. They are tied to their vehicle by their responsibility to their employer, which was a point which was made on the other side.
They are already covered.
But in cases where this is extended beyond a fifteen or twenty minutes' break, the situation is not covered at all. Therefore, if the Minister has this limited task of extending beyond the cases that are already covered, which my hon. Friend has mentioned, and if he does not like this particular text, let him give the Committee an assurance that within the course of the passage of this present Bill in its further stages he is going to bring forward an Amendment of his own to meet the present position.
Mr. William Ross
It has been a very disappointing morning. We looked upon the hon. Lady as an acquisition to the Ministerial bench, but if all she is going to do is to get up and talk just like a Scottish lawyer, it is going to be of absolutely no use to the fundamental purposes of the Committee.
Would the [ William Ross] hon. Gentleman withdraw the Scottish part of it?
It was a compliment. It was said with a measure of deliberation. I am sure that Mr. Hynd would be the last person to suggest that it was anything other than a compliment. But, really, the hon. Lady said at one stage, after haranguing us for a long time, that these examples ought to convince us that this Clause would not do. Actually, what she did was to convince us that, if the Minister wants to turn down a reasonable suggestion in future, he will ask the hon. Lady to make a speech on the subject. She must not let herself get this reputation, and I would warn her, for the sake of her Parliamentary 182future, not to allow the Minister to put this kind of thing on her, and not to let herself be treated as a hack lawyer, turning down a very, very reasonable case which is put.
Just look at the kind of case here. Here, where cricket matches are going on all over the place—and the English cricketers have evidently started hitting the ball—the implication was that the ball hit some poor agricultural worker as he was on his way home, or people were playing football. Then the hon. Lady quoted us Clause 2 (b), about someone going to a hospital or a dentist, but she forgot to quote us paragraph (c) of the Clause, which is equally restricting in that it states:
"the insured person did not directly or indirectly induce or contribute to the happening of the accident by his conduct outside the employment or by any act not incidental to the employment."
I am perfectly sure that playing football can be construed as many things, but it would not be construed as incidental to the employment, nor would watching a cricket match. We have been concerned—and I think I said this when I spoke on this new Clause—that the interpretation of these final words might well restrict the purposes, but I would never dream of having them extended to include these very things that the hon. Lady used to knock down this new Clause.
I am sorry, it is not all right. The hon. Member would not wish me to put a legal case, but where a person was passive and did not contribute to the accident—it merely happened, and he was just crossing the road or watching something—that could not possibly be construed as contributing to the accident. The examples which I gave were deliberately chosen, because the person took a passive rôle.
I am not going to accept that from the hon. Lady, because the person had to get into that position of being passive. He had to get to that place. I am not prepared to accept this definition of passive in relation to this. We do not need to be lawyers in Scotland to answer lawyers. In actual fact, I was a tram conductor at one time, and I can assure the hon. Lady that what my hon. Friend said about transport 183workers was right. One must at times leave the vehicle. 12 noon.
All my hon. Friend has said is that we want equity as between the person who is working on his employer's premises and the person who, because of the very nature of his job, is not always under the control and the eye of his employer. Such a person may have to leave the factory, depôt or any other place, and to that extent it is a simple matter of insurance. He is entitled to the same cover for accidents happening more or less in the same way as the person who is still under the direct control of the employer.
I do not have any great touching faith in all the advisers of the Minister, but I have faith in the Parliamentary draftsmen. I am sure that if the Minister told them to produce a Clause to cover this, they would do so. I am indeed sorry that we had all this legalistic subtlety thrown at us, for it is the easiest thing in the world to knock down with legalistic arguments any Clause which has been drawn up by poor, ignorant folk like ourselves. I am glad, therefore, that the Joint Parliamentary Secretary arrived late on the scene because had she been here earlier we should not even have had an extension of Clause 2. I hope that the Minister will look at this matter from the point of view of equity and the really narrow cases of time and types of breaks we wish to cover.
At the moment we are concerned in Rochdale with a case which arises out of the very argument adduced by my hon. Friend the Member for East Ham, North (Mr. Prentice), the case of a lorry driver who, having left his employers to go on a very long journey, realised that he had no cigarettes. He had the choice of turning back and going to the canteen or of continuing his journey. He carried on and later stopped. He crossed the road to get some cigarettes, not far from the firm, and was knocked down. It is being held that this did not arise in the course of his employment.
Perhaps the [ John McCann] hon. Gentleman may like to be reminded of the case of Martin against Lovibord a similar case, which was decided in 184favour of the person in charge of the vehicle.
I will certainly look up that case. It is probably full of the legal subtleties which the ordinary worker does not want to understand, for we believe in plain speaking. I have with me details of the case concerning Crook v. Thorpe before Mr. Justice Pilcher at Derbyshire Assizes. The report of this case states:
"‘When a lorry-driver leaves his vehicle to go for a cup of tea his employers cannot be held liable for any mishap which occurs,’ said Mr. Justice Pilcher, giving an adjourned judgment ...".
The report goes on to say that the judge said:
"‘The moment the lorry-driver left his lorry, he had no duty to perform for his masters until he returned to his vehicle. He was a stranger to his masters.’ No doubt if the lorry-driver had asked the manager of the firm if he could get a cup of tea after a journey the answer would have been: ‘Of course.’ But it was not a duty. The Judge added that the firm was not in any way involved in the case and decided that it should not pay damages."
These cases are happening far too often and when the Parliamentary Secretary quotes Clause 2 (c) it can be argued by the judge's ruling that this did not happen out of any act incidental to his employment because the judge has ruled that he was a stranger. I should therefore, like the Parliamentary Secretary——
Does my hon. Friend want the hon. Lady to speak again?
—to say whether she was laying it down that the lunch hour is an essential part of one's working hours? If that were laid down, it would have an effect on this issue, for it is an argument that is always used against us; that the lunch break is not in the working hours because the man is his own master at that time.
I am intrigued, therefore, by the implications of the law. At the moment it seems that if a firm provides a canteen for its employees and during the lunch break the employees go in an orderly manner to that canteen they are covered because they are on the employer's premises. If, in order to avoid his obligations under the Act, the employer uses the facilities of a private café across the way and gives luncheon vouchers 185and if when crossing the road outside the factory or firm they are knocked down, they are not covered at all and an accident in such a case would put them outside the scope even of Clause 2.
This is the inconsistency which my hon. Friends and I are trying to remove by the proposed new Clause. I agree that it is not a very good one, but I also agree with my hon. Friend the Member for Kilmarnock (Mr. Ross) that if the Minister so desired the Parliamentary draftsmen could draw up an alternative Clause which could go a long way towards meeting the anomalies my hon. Friends have pointed out.
The Minister of Pensions and National Insurance (Mr. Boyd-Carpenter)
I do not want to go over all the ground of this Clause, which we have thoroughly discussed. I must say that I think it is a little harsh that the hon. Member for Kilmarnock (Mr. Ross) criticised my hon. Friend the Joint Parliamentary Secretary for being legalistic in her analysis of the proposed new Clause. After all, it is law which we are making in this Committee, law which will have to be construed by lawyers. If it appears—as it does to my hon. Friend and to me—that as a matter of law this would be thoroughly bad law, then it is my hon. Friend's duty—as it is mine, with due respect—to put it to the Committee that, whatever may be the intentions behind the Clause, it takes the cover of the Industrial Injuries Act impossibly wide.
Hon. Members may say that that does not matter. But it matters a lot. It is not the case that we are saying that benefit is refused because someone is outside the law and that they should not receive any help from society. What happens in these cases is that they are not given the preferred position under the Industrial Injuries Act for injuries connected with their work. But they are still entitled to sickness benefit in precisely the same way as any other citizen who outside his or her work goes sick or receives an injury.
What is at issue in these cases is not, as it were, all or nothing. It is the preferred or the ordinary position, and it is important to get that clear. From that basis we come on to the position 186that if we extend the Industrial Injuries cover to the sort of examples which my hon. Friend gave we would be making such nonsense of the preferred position of the scheme as to bring the whole scheme into controversy, if not into jeopardy.
Perhaps I may give the Committee a little of the history of the matter. The position of transport workers away from home was one of the two matters which the T.U.C. put to me on this aspect of the law relating to industrial injuries. The other was the question of common risks, with which we dealt, I think satisfactorily, on Clause 2. On the narrow point of the transport worker away from home I went into the matter very thoroughly. It is notable, perhaps, that this Clause is not confined to transport workers. It is completely wide and covers also those working in factories.
That is an illustration of what I am about to say. I spent a considerable time, with the help I have on these matters, attempting to find a satisfactory formula to deal with the case of transport workers away from home—the case of men who leave their lorries for a few minutes, and so on. After considerable time and discussion in the attempt to produce such a formula I came to the conclusion that it was simply not possible to find an acceptable and proper one. I so informed the T.U.C. and I am now so informing the Committee. Therefore, I cannot in honesty respond to hon. Gentlemen opposite and say that I have felt that what I could not do over the last year or more I should be able to do between now and what I hope will not be a very far off Report Stage of the Bill. It would not be honest for me to say that because I do not believe at present that a formula which does not go too far can be found.
The fact that it has been possible for my hon. Friend to riddle this Clause is no criticism of those who drafted it. It is a very vivid illustration of what I am saying has been our experience concerning the attempt to find a formula which would do precisely what is wanted, and no more. That is, frankly, the difficulty with which we are faced.
However, I do not want to end on a wholly pessimistic note. I want to 187see, before we come to any final conclusion, how Clause 2 and the present Bill work out in practice. It offers a considerable widening of some particular interest to transport workers and I should like to see it in operation as soon as possible before coming to any final conclusion as to whether it is necessary, or possible also to make any extension of the "in the course of" position. As the hon. Member for Kilmarnock was good enough to indicate that the present Government were going on for a great many years, I shall no doubt have ample opportunity to do this.
To give the Minister an authorised and reasonable intermission in the performance of his duties—at any time within his working hours—we shall interrupt the proceedings in a moment to have a Division. I hope that that will encourage the right hon. Gentleman to go on trying. He said at the beginning of his remarks that we are making the law and must, therefore, have regard to legalistic distinctions and so on. May I point out that the job of the lawyer is to put in legal form the expressed desires of the citizen? In the Parliamentary field it is the job of the lawyer to put into statutory form the resolve of the representatives of the people to their social conditions or to change the regulations covering a large part of their industrial activities. In other words; the lawyer is the servant of those who wish to do things. The lawyer by himself has no initiative. He is a converter of common sense and plain English into statutory form. The Minister has said that the lawyers have told him that they cannot do it. In that case, he should sack them and get some more.
I have a good one here. I will see what my hon. Friend says.
Surely no Minister will say that what he wants done, and what we believe to be reasonable, cannot be expressed by the lawyers in proper statutory form. One has only to read the Income Tax Act to get all 188the examples one wants of how to do the impossible——
How to do the citizen.
—and put the most obscure desires of the Legislature into a reasonable statutory form. The Minister seems to be slipping. He is not his usual self. He has lost some of his confidence and is confessing failure. That is a very bad thing for any Minister to do.
I sincerely hope the Committee is not going to approve of this rather dismal conclusion to this interesting and rather important debate. I congratulate the hon. Lady on having mastered the art of the negative form. It is the duty of the Committee to correct these undesirable tendencies in the case of new Ministers. A combination of the Civil Service and the lawyer is a most formidable one. The hon. Lady must learn to combat that kind of thing otherwise she will get nowhere at all. She will find a brick wall wherever she turns when trying to alter and improve the Industrial Injuries and National Insurance Act.
I must not go on. I have imposed a reasonable timetable in the interests of the Minister, not myself; I am just trying to help him. The hon. Lady said she would risk my displeasure by going on longer than perhaps she should have done. This is a combined operation. This is co-operation and we want to get reasonable progress. It is obvious that we are not going to get any further. The hon. Lady is bemused with the legal difficulties. The Minister is pessimistic about being able to see his way through this labyrinth of definition to achieve what we have in mind. In the circumstances, we can only say that men and women who claim to be Her Majesty's Ministers must not come before Committees of this House and say "it cannot be done". There is only one answer to that and it is to register our disapproval in the customary way.
Question put, That the Clause be read a Second time:—
The Committee divided: Ayes 8, Noes 14. 189Division No.11.]
McKay, John (Wallsend)
Mendelson, J. J.
Prentice, R. E.
Silverman, Julius (Aston)
Boyd-Carpenter, Rt. Hon. John
Browne, Percy (Torrington)
Hill, Mrs. Eveline (Wythenshawe)
Johnson, Dr. Donald (Carlisle)
Steward, Harold (Stockport, S.)
Taylor, F. (M'ch'ter, Moss Side)
Thatcher, Mrs. Margaret