Clause 1 — (Additional injuries and damage in respect of which compensation may be paid.)

Orders of the Day — Pensions (Mercantile Marine) Bill. – in the House of Commons on 2nd June 1942.

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Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

I beg to move, in page 1, line 5, to leave out Sub-section (1).

I do not intend at present to press this Amendment to a division. It depends largely on the answer we receive from the Solicitor-General, whom I am glad to see in his place. I wish to criticise the drafting of this Sub-section; and, therefore, by implication, the drafting of the entire Bill, because this is one of the principal cogs in the complex mechanism of the Bill. I also wish to ask a specific question, arising out of the drafting. Since the Second Reading, when I ventured to make one or two observations on the drafting of the Bill, there has been an interesting correspondence in "The Times" on the subject, and I have had a courteous invitation to visit the Parliamentary Counsel's Department, where I saw two distinguished Parliamentary counsel, including the gentleman who drafted this Bill.

We are all always glad to hear other people's points of view, but, although I must not betray any confidences, I must say that when I left that office my impression was that we had better agree to differ. I find a very great cleavage of opinion between people who think as I do, rightly or wrongly, about the drafting of Bills, and those whose business it is to do the drafting: and it is time that the House of Commons took notice of it.

I want to ask this question: Does this Sub-section apply to a tug operating in waters about Southend which does dangerous and difficult work in dangerous and sometimes stormy waters in connection with convoys? Indeed, the tugs have suffered a good many casualties. The answer to that question ought to be made clear to the Committee.

The present system of drafting legislation by reference is defended by some on the ground that, though it may not be clear to anybody else, it is clear to His Majesty's Judges. My first comment is that His Majesty's Judges are always saying precisely the opposite, that they cannot understand what it is that we have done. And my second comment is that this particular Bill is one which will very rarely, if at all, trouble His Majesty's Judges. Then there are still some old-fashioned and barbarous people who think that legislation should be understood by the people who have to obey it and have to be governed by it. I believe the late Lord Birkenhead once said that the citizen is required to know the law at his peril, while the lawyer, and even the Judge, is forgiven for getting it wrong; indeed, Judges are expected to get it wrong, and that is why we have two Courts of Appeal and sometimes more. I agree that so complex is legislative life that we cannot always make everything understandable to the people—it is absurd to expect it—but that should still be held up as an ideal. In the case of Bills like this, it is said "The Bill may not be understood by the ordinary citizen, but we shall publish a statement showing exactly, in plain language, what the Bill does or does not do." But that is a dangerous thing. Much as we rely upon the honesty and integrity Ministers and Departments, there is a great danger of things being put into such and such a paper or being left out about which we should be none the wiser in this House because we do not understand the terms of the Bill. In spite of all the difficulties—and I do recognise the difficulties and the patient toils of the draftsmen—we must keep before us the ideal of making legislation intelligible to ordinary people. It is not always a practicable ideal, but we must keep it before us. The idea of having one document in this House and then issuing a completely different document to explain it is a great surrender to unintelligibility.

Then there is a third party which I think is even more important than the Judges who interpret the law and the subject who has to obey it, and that is, the men in both Houses of Parliament who make the law. It is of fundamental importance that we should understand what we are doing while we are doing it. How often do we hear the complaint in the Press, in the courts and on platforms, How in the world did Parliament permit this or that piece of nonsense to go through? "The answer, in nine cases out of ten, is that we did not know what we were doing. We must know what we are doing.

I come back to my specific question. Does this sub-section apply or not to tugs and the crews of tugs operating and assisting convoys off Southend Pier, where the river is five or six miles wide? This question has been put to me seriously by tugmen whom I see every day of my life, but it may equally be put to any other Member. Well I see in Sub-section (1) that Sections 3, 4 and 5 of the principal Act are to apply to mariners, pilots and "other persons," and that the Clause refers to mariner and ships. It does not seem to be likely that "ships" includes "tugs," or that tugs' crews are mariners, but I hope perhaps may come under "other persons." I look at Sections 3, 4 and 5 of the principal Act. Section 3 has nothing to do with tugmen. Section 4 deals with pilots and apprentice-pilots, pilot boats, lightships, lighthouse-tenders and lightship-tenders, and there is nothing about tugmen there, nor does Section 5 seem to apply to tugmen specifically.

But with my quick eye I have noticed, in Sub-section (1), that Sections 3, 4 and 5 of the principal Act have been amended by the subsequent provision of this Bill, and I have another ray of hope that perhaps tugmen are coming into this after all. I go back to the Statute Book and find that I have to cut out the first 28 lines of Section 3 and paste in 53 new lines which are to be found in sub-section (1) of Clause 2 of this Bill. Having done that operation, I still find nothing about tugs; but still there are a lot of other Amendments to these three Sections. There is a page of consequential Amendments in the Schedule on page 7 of the Bill, which in my opinion is the most untidy piece of drafting that has ever been put before the Committee. I go to the principal Act;—and I protest against things being put to us in this state—and I scribble in physically, as a conscientious Member must do, all sorts of consequential Amendments until my Act looks like a crossword puzzle, which indeed it is. Still, with these alterations I can find nothing which can possibly refer to tugmen off Southend or anywhere else. I go back to the tugman and say, "I am afraid, old boy, you are out of this."

However, I see one last chance. Perhaps a tug is, after all, a ship. I scan through the Bill, and strange enough, although the whole Bill is about ships, there is no definition of a ship in the Bill. I find, in the Schedule to the Bill, that 'Ship' has the same meaning as in the Merchant Shipping Act, 1894. I go to the Library, look up the principal Act, and find that a ship "includes any description of vessel used in navigation not propelled by oars." At last I get to a tug. It is wonderful. Southend Water is" tidal waters," and these waters are also a harbour, so that I am very nearly there. Then I think there must be a catch in it, and I wonder if the Solicitor-General could, offhand, give an answer to that. Perhaps, I think, although a tug is a ship and Southend is tidal water, a tugman is not a mariner, and so we start again. With my head going round and round, I look at the principal Act, which says that a mariner means the master or member of the crew of a ship being employed in "sea-going" service. So the poor tugman is caught again, or at least I think so, because Southend, although "on Sea," is within the "seaweed limit" of the Port of London Authority.

I want to get him in, but I am now using him as an illustration of the difficulties in which we are put by this form of legislation. I cannot see why we should undergo this confusion. We should know what we are doing and not have to go round libraries to find out. I admire the draftsmen, the more so because of their difficulties in war-time, but unlike us, they sit in a room in which there are piles of Statutes and books on case law. When a problem arises they take down one of them and scribble down any point on which they are doubtful, but we humble Members of Parliament have not these facilities, and we ought to be thought about a bit more when these documents are being composed.

What are we to do about it? I am aware that not every case is the same. But in this case we should have started again. We should have said that this is to be the Pensions (Mercantile Marine) Bill, that it applies to the following mariners, to the following vessels, to the following kind of injuries, including the war injuries mentioned in the principal Act, in addition to others which we are adding. I am told that this would have meant a longer Bill, although I am not persuaded about that, but also—and this comes straight from the house's mouth—that it would have taken much less time to prepare by the draftsmen, and that is an important point.

The Chairman:

The hon. and gallant Member has made a confession which makes me think I am bound to rule this Amendment out of Order. It seems to be an Amendment which would, if carried, negative the whole Bill. I would have been put in some difficulty by the hon. and gallant Member moving an Amendment of which I have had no notice—the hon. and gallant Member is moving to omit Sub-section (1) and not Sub-section (2), as on the Paper—and I doubted very much whether I could find it consistent with my duty to put this Amendment to the Committee at all. I have decided that I cannot. The hon. and gallant Member asked a question which he might have asked on the Motion "That the Clause stand part of the Bill," and I think to that extent I should be entitled to allow a Government representative to make a reply. But I do not think the hon. and gallant Member can continue on the line he is taking now, that is, attacking the Bill generally.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

I appreciate that, Sir Dennis. My main purpose is to give the Solicitor-General an opportunity of replying. As the drafting authorities have been so much attacked, I thought he would like an opportunity of giving their side of the case as early as possible. However, I intend to withdraw the Amendment even if you find it in Order.

The Chairman:

I am not prepared to put the Amendment to the Committee. I think the hon. and gallant Member had better put his question when we come to the Motion "That the Clause should stand part of the Bill."

The Chairman:

I do not think the hon. and gallant Member need do so. I have declined to put it to the Committee.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

I beg to move, in page 2, line 23, to leave out from "sub-section," to the end of line 25, and to insert "unless the contrary is shown."

I think this Amendment is a point of substance. I mentioned it on the Second Reading, when the Minister said he would give it his attention. I want to leave out the words: If, but only if, they substantially increased the risk of the peril occurring which caused the injury, loss or damage"— and I want to insert the words: "unless the contrary is shown." There is probably some explanation, but it seems to me to be a strangely stingy limitation. We start this Bill with the great principle that we are paying pensions for disablement and death directly attributable to war injuries sustained by reason of the service of mariners in British ships. In Clause 1, while on the one hand we expand the definition under the principal Act, we put down certain limiting conditions in paragraphs (a), (b) and (c): and here we seem to limit still more. I cannot understand why the Sub-section is there at all, but if we must have a Sub-section of that kind, we ought to know what it means.

Take, for example, the point mentioned on the Second Reading. A ship is overloaded, or loaded as it would not have been in peace-time, with an unusual cargo, and it founders. That is a peril which causes injury. I am not throwing stones at the Minister; indeed, I hear on every hand of the humane manner in which the Ministry of Pensions Department is administered, but supposing you have somebody who says, "Yes, the ship foundered, but in such a gale as that it would have foundered anyhow." If there is any dispute, it is left to the widow or her representatives to make a case and prove that it was overloading which substantially increased the risk of the peril occurring instead of the onus of proof being on those who are denying.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

I am afraid this Amendment is one which it would be very difficult for me to accept, because it would make such a considerable difference in the procedure and practice as regards all pensions, for it applies not merely to seamen's pensions, but to all others The position is that someone has to decide whether the injury is a war injury or not. At the present time, it is the Minister who decides on the evidence that is brought to him. It may be that it would be a wise thing if we could give the information to the claimants to show that it is not a war injury, but many difficulties would arise. My hon. and gallant Friend will realise that we might not be able to give the information openly because of war conditions. The Admiralty might have something to say if we stated exactly where and how the thing happened, and where certain ships were at certain times. But I do not think my hon. and gallant Friend need have any worries about this matter. He has said that I have the reputation of being an administrator with a humane outlook. That is the outlook of my Department. Time and again we have to deal with cases in the other Services where we have to state that on the evidence produced the injury is not attributable to war service, and the applicants have to accept it. As and when we do set up tribunals, the seamen's widows will have the same right of appealing to the tribunals as the widows of men who were in the other Services. It will then be possible for the information to be given to the tribunals, because then there will be no danger or difficulty resulting from war-time conditions.

I ask the Committee to leave the Clause as it is as regards this matter, because I am certain that the most fair consideration will be given to every case, and in proof of that, I may say that even under the old Act—which we are now amending, and, as my hon. and gallant Friend has himself stated, improving considerably—the percentage of acceptances in the case of widows' claims has been over 95 per cent. Therefore, I think that the method of leaving it to the discretion of the Minister and the Department-has not worked too badly so far. I submit that it would be in the best interests of those who are claiming that it should be left with the Minister, who will be, I hope, as sympathetic in these matters as I am, and who is open to be criticised in the House if he does not administer the provisions in the proper way.

Photo of Mr Ian Orr-Ewing Mr Ian Orr-Ewing , Weston-Super-Mare

I was a little worried when I heard the Minister comparing the risks to which merchant seamen are subjected, and the difficulty of assessing whether any risk or loss in which they are involved is due to the war or not, with other classes of war risks.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

I was not doing that. I was saying that the procedure in both cases must be the same.

Photo of Mr Ian Orr-Ewing Mr Ian Orr-Ewing , Weston-Super-Mare

I understood the Minister to say that if the Amendment were accepted, it would apply not only to cases of merchant seamen, but to all pensions cases.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

I apologise if I did not make myself clear. There is the question of principle involved. This could not apply to one section of applicants for pensions and not to another.

Photo of Mr Ian Orr-Ewing Mr Ian Orr-Ewing , Weston-Super-Mare

I quite see the point, but I want to plead specially for the particular type of cases covered by the Bill. It seems to me that merchant seamen are subjected to a type of risk which opens out fields of argument, which do not exist in other cases, as to whether a ship has or has not been lost as a result of war activity, or whether it has been lost because of some defect in the ship, or some stress, of weather. I feel there can be no possible doubt about the Minister's sympathetic outlook, and as long as the Department is under his administrative control and as long as the same spirit exists in the Departments, all cases will be dealt with fairly, but I do not think that is quite a fair answer to give on a question of special risks. I am not at all happy about the past history of risks at sea and the difficulties which have been occasioned by questions of how those risks have arisen and how the results of the risks have been dealt with. I should like to see something much more definite in the Bill in the way of guidance to the courts or the tribunals as regards the special risks which are attached to sea service. I do not think there is sufficient appreciation in any line of the Bill of the special nature of the risks which exist. This is not the only Bill which ignores that fact. I would ask the Minister, to reconsider this matter, and although I quite see that at this moment he might not be able to accept an Amendment of this sort, I should have thought that he might have been able to accept some form of words in some part of the Bill which would outline rather more definitely the nature of the special risks involved.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I am not quite clear how far the statement which the Minister has made clears up a question about which there was some apparent confusion in the Second Reading Debate. In that Debate, there arose a discussion about the way in which the Bill was drafted, and in replying from the Front Bench, the Parliamentary Secretary to the Ministry of War Transport said that it was done in that way for the convenience of the courts. It occurred, then, to some of us that that could hardly be a valid reason, because it seemed to us that the courts had little or nothing to do with it, and that any questions under the Bill as to entitlement to a pension would be determined not by the courts but by the Minister. That view was expressed in the Debate, and appeared to be doubted by the Treasury Bench. To-day, I understood the Minister to say that the courts in fact will not have to determine entitlement to a pension, but that that will be the business of the Ministry of Pensions, subject only to the right of anyone whose claim is disallowed to have his claim ultimately re-heard if and when tribunals are set up either now or soon after the war.

I should like to know whether that may now be taken to be the considered advice which those in charge of the Measure are tendering to the Committee, and whether we must now assume that all questions of whether claimants to pensions under this Bill are entitled to those pensions, or not entitled to them, will be determined not by the courts but by the Department. Assuming that the answer to that question is in the affirmative, I ask the Minister whether he ought not to reconsider his attitude towards the Amendment now before the Committee. In most of the cases that we have had to deal with, disputes about pensions have been as to whether there was in fact incapacity or whether in fact the incapacity, alleged or proved, was caused, aggravated, or accentuated by war service. The question that arises here, however, is not that sort of question. The Sub-section which the Amendment proposes to delete does not refer to the claimant or to his interest; it refers to the penalty which has resulted, and lays upon the claimant the onus of establishing that the peril which caused his injury was an added peril—a peril added by war circumstances. That is quite a different thing from the kind of question which so far has been determined by the Ministry of Pensions. Even those questions which have so far been determined by the Ministry have led to very great dissatisfaction, discontent and, indeed, indignation. I am not going to pay anyone any compliments or make any accusations, because I do not think it matters in the least whether the Department is well or badly administered from this point of view. While people whose claims are turned down do not feel that they are getting a proper hearing and impartial determination of their claims, they will not be satisfied, whether or not the Department's administration is fair. The kind of question contemplated by this Amendment is not this question at all.

The Chairman:

I am not sure that the hon. Member is in Order in discussing this matter of whether the decision rests with the courts or with the Department.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I fully understand that. I am not attempting to discuss it. I was only attempting to draw a distinction between the kind of question raised in the words now proposed to be left out, and the kind of questions which so far the Ministry of Pensions have been left to determine. I am only saying that this kind of question covered by the words which the Amendment proposes to leave out is not a proper question to be determined by the Ministry. It would be very much better not to raise such a question at all. It is a question which will be extremely difficult to answer. If it has to be decided, I should have thought it was pre-eminently the kind of question with which a court and not a Government Department ought to deal. Even so, it would raise very difficult and complicated questions of law in an atmosphere which the Minister has already explained might not be conducive to the public interest. I suggest to him that it would be very much better to accept the Amendment which has been moved, and not subject these claimants to any kind of limitation. If the injury has, in fact, resulted in any of the circumstances in the Section referred to, there ought not to be any necessity to limit or qualify it by saying: if, but only if, they substantially increase the risk of the peril occurring which caused the injury, loss or damage, which takes you into the rarified atmosphere. If a ship is a total loss, the evidence may have been completely destroyed, and, as the Clause stands, in circumstances of that kind the question will be determined by the Department itself without hearing evidence and without making any communication to the claimants or dependants of the claimant. It is bound, if it is persisted in, to give rise to the same kind of feeling, with even greater justification, as has been occasioned by Departmental decisions of this kind on questions in the past. It seems that if the Amendment were accepted, the advantages of accepting it are obvious, and that the disadvantages which would result to the Government or anyone else would be very difficult to discover, and I hope that the Government will reconsider their attitude.

Mr. Beechraan:

It may well be, if the subject matter of this Bill continues to be dealt with by a Minister with a humane outlook and by a Department which treats these matters with sympathy, that no great damage will result from adhering to the words contained in the Bill. I am, however, bound to say, having listened to the arguments, that I feel that the Amendment of my hon. and gallant Friend the Member for Oxford University (Petty-Officer Herbert) should be supported. The Minister, in asking the Committee to keep to the words proposed, advanced two arguments. First of all, he said that we had to bear in mind the analogy of other Bills, and, secondly, he tells us that the question of secrecy may arise. I think that the hon. Member for Nelson and Colne (Mr. Silverman) has dealt very faithfully indeed with the question of analogy. I am not at all convinced that we are here dealing with the same kind of material as is dealt with in other cases where this type of matter is considered. I cannot follow how the argument in regard to secrecy affects the matter. The Minister said that it might be very inconvenient from the national point of view to have to disclose to an applicant certain facts which, I suppose, help to determine whether, "Yes" or "No," the injury was substantially increased in regard to the risk which brought it about. How can it be said that secrecy is of the least relevance when, as the Minister told us, the applicant can go before a tribunal and make out his case, in which case the facts will have to be open to the tribunal and the tribunal will have to consider whether the risk has, in fact, been substantially increased for the reasons stated? It is quite impossible for any tribunal, be it a Department or a court, to reach a decision if the facts are not fully open to them.

I ask the Committee seriously to consider this matter and to accept what has been put before them by myself and other hon. Members to the effect that the arguments advanced against my hon. and gallant Friend's proposal really cannot hold the field. I think that it would be far more easy and far more businesslike to have the matters dealt with on the footing of the Amendment now proposed, A tribunal will be able to say whether arguments have been put forward to show that the injury cannot be attributed to the causes mentioned, but it is very difficult for a fribunal to say whether a risk has been substantially increased by certain pre-disposing causes. Various tribunals will be bound to differ as to whether there has been this substantial increase, and I, therefore, ask the Minister to reconsider this matter.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I think it is essential that in making up our minds on this matter we should commence by remembering that Clause 1, Sub-section (2), paragraphs (a), (b) and (c) enlarge the scope of the injuries for which pensions can be given, and that that meets with the general approval of us all. There is no dispute on that point, and we all welcome it. Then we come to consider Sub-section (3), and where I suggest that there is a difference between us is that my hon. and gallant Friend and those who have supported him consider that it is a limiting Sub-section. Actually, it is a further extending Sub-section. "Attributable" is a word which is roughly equivalent to "caused by." I do not know how far my hon. and gallant Friend, in bringing out the law reports which bear his name, has gone into the question of causation. But I think he Will understand, and I know the hon. Member for Nelson and Colne (Mr. Silverman) understands, the great refinements which the problem of causation engendered about 10 years ago. There were disputes on very narrow lines between what was a proximate cause and what was a real cause, and matters of that kind. Therefore we desired to substitute a criterion which seemed to us reasonably construable and the subject of an easy decision. We said injuries should be treated as being attributable if, and only if, the matter in question substantially increased the risk of the peril occurring which caused the injury, loss or damage. "Substantially" is not a word which causes any difficulty. It is a matter which the courts have often had to construe in various Statutes, so that, as far as any legal implications of the word are concerned, there are no difficulties.

As far as a question of fact is concerned, that again must be a matter of opinion. I should like to take the three examples my hon. and gallant Friend mentioned. The first was overloading plus a gale. The question for the decision of the Minister is, Did the overloading substantially increase the risk? There is, to my mind, a question of fact—and all questions of fact require consideration and attention, and cause some difficulty—but not a matter which one would ever describe in any technical way as a difficult question of fact. The second question was absence of light. Did the light substantially increase the risk? That is not a question which anybody would feel difficulty about deciding, providing he applied his mind to the facts. The third was a convoy plus a wrong order. Again the question is, Did sailing in convoy substantially increase the risk? I agree that that is a difficulty, but a difficulty which is inherent in every Admiralty case of deciding whether it is reasonable to give a particular order or not. We have genuinely tried to find a formula which gets' rid of the difficulties and refinements of causation, and substitute for it a matter which can be dealt with as a question of fact by the Minister without difficulty. My hon. and gallant Friend desires to wipe that out and put in its place "unless the contrary is shown." It is rather difficult for the moment to imagine who is showing the contrary. If one follows it up logically, it comes to this position, that, if you have no evidence at all, you should grant a pension.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

All you may know about it is that the ship foundered. The case goes to a tribunal, and a substantial increase of risk through overloading has to be proved. I raised the point on Second Reading, and the hon. and learned Gentleman said he would go into it. I thought he meant that he would provide some other form of words if mine were not right. I wanted the onus of proof put upon the Ministry. I think that where a ship is overloaded the benefit of the doubt ought to go to the widow.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I was not endeavouring to evade the point. My right hon. Friend and I have considered this most carefully since the Second Reading. It has not been forgotten. In the case that my hon. and gallant Friend gave, you had the evidence of overloading. My right hon. Friend can decide on that evidence, and on the general information that he has, whether that substantially increased the risk. The case that I want my hon. and gallant Friend to consider is this: A ship sails and is never heard of again, and there is no evidence of enemy submarines or aircraft operating in the neighbourhood. If the Amendment were accepted, there would be literally no evidence whatever of any war risk. What the Committee has to decide is whether it is right, in granting a pension, to ask that there should be some evidence, as we say, a lighter onus than in the case of an ordinary claimant, who has to prove definite causation, and eliminate any other cases which may operate in the matter. We suggest, instead of that, that there should be placed on the claimant the lighter onus of saying that war matters have substantially increased the risk, and that is a fairer and better method of dealing with the problem than saying, If there is no evidence at all we shall make the assumption that it is a war injury. The hon. Member for Nelson and Colne knows as well as I do the many hundreds of decisions in the courts in cases of workmen's compensation. I am suggesting that what we should require is some evidence of war experiences being present and that if there is some evidence, then we have propounded a good test.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I think that in the closing sentence of my hon. and learned Friend's speech we get to the crux of the matter. He referred me to the multitude of decisions under the Workmen's Compensation Acts, and very tragic decisions many of them are. If this House is to take the responsibility of saying, as it has done in previous analogous Acts and as it does in this Bill, that even such rights as a man might have under the Workmen's Compensation Act are to be taken away and his case is to be decided by the Department, then, even if we agree to that, there is no reason why all the anomalies of the workmen's compensation law should be repeated. Let me take the sort of case that the Mover of the Amendment has suggested. A ship is lost with all hands and is never heard of again. My hon. and learned Friend says that in that case a lighter onus will be put on the claimant. To the claimant, however, it makes no difference whether the onus put upon her is light or heavy if she has no means of discharging it. In these circumstances she has no means of discharging even the lightest of onuses.

All we are asking is that in circumstances where the Government control every ship that sails, what the cargo shall be, where it shall be loaded and whither it shall sail, the Government ought not to quibble about proofs and onuses if such a ship is lost. They ought to say, "This ship was sailing for us to satisfy war purposes and its loss is a war loss. We will, therefore, pay the pension and not go into refinements as to whether this or the other unprovable circumstance has substantially increased the risk." My hon. and learned Friend said that this is not a limiting modification but an extending one. He might have made a case for that if the words "but only" had been left out. I may be wrong about that and I do not press it. I prefer to stand on the general principle that in circumstances where proof is necessarily unobtainable by the widow or the dependants of a mariner, where such evidence as there is is in the possession of the Government, and where the Government insists on treating it as a Departmental decision without recourse to the courts, the fact of the loss on a war voyage ought to be sufficient entitlement to pension.

Photo of Sir Kenneth Pickthorn Sir Kenneth Pickthorn , Cambridge University

I apologise to the Committee if I have not sufficiently understood this discussion to take part in it. I hope I have, but I am not sure that I have. I wish to put a point in the form of the story of a case which arose in the last war. Five ships on Government account were proceeding from Liverpool to Boston, Massachusetts, all less well officered, less well manned and less well repaired than they would have been in normal circumstances. They ran into weather of exceptional severity about 400 miles East of the American coast. Four of them foundered. The fifth was a turret ship, a ship which was designed to cheat the Suez Canal dues, and was unsuitable for western ocean traffic. It was, however, the only ship which reached Boston. About 20 minutes after she tied up the master died. The question I wish to put is, which widow of which of these masters would have had what chances after discharge of the onus of getting any pension under this Bill? Would none of them or would it only be the fifth, because it is obvious there could be no evidence in the other cases of what happened towards the end? In the fifth case there might be a theoretical possibility of getting evidence, but the practical possibility was so infinitesimal that, however light the burden of proof might be, it would not be dischargeable.

The Lord Privy Seal (Sir Stafford Gripps):

I think that there is a little confusion about what this enactment is really about. In answer to the question of the hon. Member for Cambridge University (Mr. Pickthorn), I think it is undoubtedly the answer that under this Bill none of the widows of these officers would get any pension. They would all have had to look, as they look now for pensions under the compensation schemes. That has ruled in the Service for a long time, but the people who are asking for this Amendment are asking that the whole of workmen's compensation should be wiped out, and that the whole of compensation should be taken over by the Government. What this Clause does is to draw the line between cases which fall within workmen's compensation and cases which fall outside because of war risks. This is not a question, as the hon. Member for Nelson and Colne (Mr. Silverman) suggested, of introducing into this pensions system all the difficulties of workmen's compensation cases. It will be observed that it is not a question here as to whether the injury or loss has been caused by a war risk, but whether it is attributable to something—that is, the matters specified—and whether those matters have substantially increased the risk of the peril, not of the accident. In the case which the hon. Gentleman who moved the Amendment put forward of the overloading as a matter of war necessity, that is clearly a thing which increased the risk. It may not have been the cause of the accident, but it increased the risk of the accident. If there were an absence of lights or the presence of enemy submarines or a convoy where otherwise there would not have been a convoy, these are matters which would substantially increase the risk of the peril. It is not a question of whether they caused the accident.

Photo of Sir Kenneth Pickthorn Sir Kenneth Pickthorn , Cambridge University

What is the risk of the peril?

Photo of Sir Stafford Cripps Sir Stafford Cripps , Bristol East

I should have thought that it was fairly clear. In the case which the hon. Gentleman gave the fact that the ships were not well founded increased the risk of the peril of the storm because it made them more likely to be sunk in the storm than if they were well founded. That is a case in which something increased the risk of the peril. Peril is something which exists by nature. It may be a rock or a storm or something of that kind. The risk of the peril may depend upon the state of the boat, upon the way in which it is navigated, or upon a hundred other matters, and if in accordance with the provisions in Sub-section (2) there is something which substantially increases the risk of the peril and then, as a result of the peril, there is an accident or loss of life, the pension becomes due; but if there is no substantial increase of the peril, and it is an ordinary peril which is covered under the provisions with regard to workmen's compensation or compensation to officers, then the case falls to be dealt with under those ordinary provisions. It is essential that a line must be drawn, and in my submission this Sub-section draws the line as fairly as possible and has put as small an onus as possible upon the person who has to claim the pension. It is not a question of proving that the loss or the accident was due to this extra incident; he has only to show that there was an incident present which increased the risk from the peril, and that cannot be as difficult a matter to prove as some hon. Members have suggested.

Photo of Mr Ian Orr-Ewing Mr Ian Orr-Ewing , Weston-Super-Mare

I do not like to interrupt again, but I still feel that my right hon. and learned Friend has attempted to put too narrow a limit upon the nature of the risks of ships at sea in time of war. Practically every ship that goes to sea has, under the stress of turning at high speed, an extra risk added to the perils of which he spoke. It may well be that a type of ship which would not be sent on a particular voyage in peace-time is sent in war-time. How can one say whether there has been additional risk of peril because that particular type of ship has been sent on that voyage? Again, the ship may have been pressed to go to sea at the earliest possible moment and that may have caused the gear aloft to be improperly stowed, and the actual behaviour of the ship, being an unsuitable type of ship, may have caused a chafing of tackle aloft and may have brought down that gear at sea and so caused an accident. All those are questions which admit of unlimited argument, and it is only because I see the risk of unlimited argument holding up claims which could' be substantiated if all the evidence were available to those who were making the claims that I once again ask whether this matter can be reconsidered.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

While I am grateful to the Leader of the House for what he has said, may I ask him to make this point clear? If the whole of this Sub-section were omitted—and that was the purpose of the Amendment which I had originally put down—what would be the effect? Would it substantially increase the risk of the Bill not going through?

Photo of Sir Stafford Cripps Sir Stafford Cripps , Bristol East

The effect would be to make it extremely hard upon applicants.

Amendment negatived.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

I beg to move, in page 2, line 25, at the end, to insert: (4) Any injury, loss, or damage sustained by a mariner by reason of his service in a British ship in time of war shall be treated as falling within this section, although not falling within subsection (2), or section ten of the principal Act, where no compensation or damages is or are payable at common law or under any enactment. The purpose of this Amendment is to fill in a gap in the Bill, or possibly two gaps. On the Second Reading of the Bill I pointed out some of the cases of misfortune which, so far as I could see, were not covered by the Bill. I mentioned the case of a man going overboard in the ordinary way, so to speak, while in convoy to the North of Norway or somewhere else. I was told then in a series of interjections by the hon. Member for Seaham (Mr. Shinwell) that in such a case the man would get workmen's compensation, and that is perfectly true; though, by the way, the benefits under this Bill are much better than those under workmen's compensation legislation. They are pensions, for example, and not lump sums.

There are two points with which I wish to deal, and the first concerns officers. Officers receiving over, is it £420 a year, are not entitled to workmen's compensation benefits. But I have just learned from Captain Coombs, of the Officers (Merchant Navy) Federation, something which ought to be made more widely known, that shipowners' associations are paying workmen's compensation ex gratia to officers who are not legally within the limits of those entitled to compensation. Their action in that respect deserves to be properly applauded, but still it is an ex gratia action, and it is questionable whether Parliament ought to rely upon shipowners being generous to that extent. Therefore, I suggest that where there is no statutory pension payable under this Bill this saving clause should be operative in case there are any real gaps.

The other point which I wish to make concerns both officers and men. It deals with tuberculosis brought about by exposure in ships' boats after a vessel has been sunk or has had to be abandoned. I imagine that my right hon. Friend has an answer to this point, but I should like to read a letter from Captain Coombs, of the Officers (Merchant Navy) Federation: As you will be aware, under the principal Act disability allowances were limited to injuries received as a direct result of enemy action in accordance with the definition given in the Act, and consequently cases of tuberculosis which, in our view, could be directly attributed to warlike actions could not be admitted by the Department. Undoubedly there have been a number of cases, possibly more than we are aware of where tuberculosis has developed as a result of privations suffered by crews who have had extended periods in ships' lifeboats following upon the sinking of their ships by enemy action. Whether it would be possible to have it specifically covered in the Amending Act, for tuberculosis to be regarded as a war injury we have some doubt, as the Act defines war injuries and tuberculosis is an illness. We do feel nevertheless that it will be the intention of the Ministry of Pensions, having regard to the wide interpretation which they have placed on war injuries"— Another compliment to the Ministry— to pay pensions to those people in the Merchant Navy who are incapacitated by one reason or another as a result of warlike actions whilst following their employment. … If tuberculosis is not covered by the amending legislation it will not be possible, in my view, to have claims of this character admitted under the Workmen's Compensation Act, as-there is not at present any scheduled seamen's diseases under that Act. Those are the two points. First: whether we can rely upon the present practice in the case of officers who suffer an injury such as is provided for in the Bill; and second, to make provision for sufferers from tuberculosis or any similar disease which does not come under workmen's compensation or under the Bill as it stands.

Photo of Mr Rhys Davies Mr Rhys Davies , Westhoughton

This Bill applies only to physical injuries. I know little or nothing about ships or the sea, but I know something about this problem of the Minister accepting responsibility for pensions in respect of physical injuries only. The Minister knows that there are many cases of neurosis already in existence consequent upon bombing from the air which do not fall into the category of physical injury but are nevertheless as distressing, if not more so. Tuberculosis as suggested may of course arise consequent upon enemy action but it is much more remote than the point which I am raising, since I have actually dealt with neurosis cases, and the right hon. Gentleman knows it.

Let us see what would happen under this Bill. The right hon. Gentleman will consider a claim for pension from one of these men in respect of injury caused to him physically, but it is quite possible that one of these mariners may be injured for life with disturbance of his brain or nerves. Let me give an actual case of neurosis under the Civilian Injuries Scheme, which will bring the point out better than I can put it. There was a young man in the Navy doing shore duty. Although I have raised this question before, it is appropriate on this Amendment. He was picking up incendiary bombs, as was part of his duty, during a blitz upon a seaport town, when, lo and behold, a high explosive bomb exploded near to him. He was carried to hospital and was there for several weeks. During that period he suffered an epileptic fit. He had never suffered from any ailment since he joined his approved society at 16 years of age. When he was discharged from the Navy he was certified as an epileptic, and because he was discharged as an epileptic and had not suffered any physical injury as such, the right hon. Gentleman will not grant him a pension.

Let us be clear about the matter. I am not going out of my way to condemn the Ministry of Pensions; I know something of the difficulties. They draw a line, however, and they draw it here. Notice the wording: The injuries falling within this Section are physical injuries. Let me ask the Committee to consider the matter more in detail. A sailor may suffer exposure on the high seas, probably on a raft for several days, and he may become mentally deranged, probably for life. So far as I know, there is no pension payable under this Bill for that case. Where a man is discharged from the Forces with mental disturbance, the right hon. Gentleman has declined to pay a pension, though he provides treatment.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

That is where it can be positively proved that the disturbance has nothing to do with his service. The hon. Gentleman is quoting cases where men, from exposure or bomb blast, become affected. We should deal with such cases on their merits. The hon. Gentleman keeps bringing forward a particular case on every Debate we have, although he knows that we have discussed together downstairs the particular case he has in mind. We have seen all the papers and he must admit that it has nothing to do with the general question but has to be dealt with according to the merits of the case.

Photo of Mr Rhys Davies Mr Rhys Davies , Westhoughton

Let me ask the right hon. Gentleman a question pointedly. Suppose a sailor suffers from neurosis consequent upon enemy action. It is not sufficient for the right hon. Gentleman to say, "I will deal with the case." I know he will deal with it, but he does not accept responsibility for a pension under the personal injuries scheme for neurosis cases, but only as stated in the First Clause of this Bill, for physical injuries. I am not so sure that the minister would be entitled to accept responsibility for a pension in respect of anything but physical injury. Where physical injury causes neurosis he will, of course, pay a pension. I ask him flatly to say, in the case of a man such as I have described, suffering from neurosis without physical injury, consequent upon enemy action, whether he would not only deal with the case but whether the man would be entitled to a pension. That is the real problem here.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

The answer is quite definite. We should deal with the case in exactly the same way as we deal with all cases of neurosis. First of all, we should give treatment, which is the method recommended by all the specialists in the country—treatment first. If we could not bring the person back to health, then we pension him. There is no question about it.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I want to come back to the general question raised by the Amendment. In view of the discussion, I would like to ask the Government to explain to the Committee whether they recommend the Bill to the House on the ground that it provides better benefits than would be obtainable under workmen's compensation, or on the ground that it offers something less. I am sorry that the Leader of the House is not here; it was a speech of his which prompted the thought in my mind. In one part of his argument he was saying that we should not pass the Amendment because it would deprive everybody of workmen's compensation and in another part that this gave something more than workmen's compensation, and therefore the onus was made light. He seemed to be trying to make the best of both worlds. When it suited his argument to say that workmen's compensation was better, he said that; and when it suited to say that this was better than workmen's compensation, he advanced that argument. The matter ought to be cleared up, and one way of doing so would be to pass the present Amendment which deals with a class of case to which that particular kind of argument does not apply.

Not everybody who suffers injury to be compensated by a pension under the Bill would have a right to workmen's compensation. His wages might be too high, or there might be no contract of service of any kind. He might be present in the ship in some quite other capacity than that of master and servant. If he were injured and if his wages were too high for workmen's compensation, it would be no answer to him or his dependants to say: "If you fail under this Act you may get what you would have got under workmen's compensation," because, ex hypothesi, what he would have got under workmen's compensation would be nothing. Therefore, it seems necessary, especially in view of the argument advanced to us on the previous Amendment, to make it clear that if there be someone who suffers injury by this kind of peril, without the Bill he may get neither pension nor compensation while under the Bill he will get compensation. I take that to be the object of the Amendment, and it is so very reasonable and obvious that I hope the Government will be able to accept it.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

Let me deal with the point raised by the hon. Member for Westhoughton (Mr. Rhys Davies) with regard to injury. I think it was suggested by him and developed by the hon. Gentleman who has just spoken The position is that if the tuberculosis or the neurosis is an injury within Clause 1 of the Bill, as it extends the original Act, and the tuberculosis or the neurosis is therefore the result of one of the matters described, it is the subject of compensation, or, if death were to result, pension under the Bill.

Photo of Mr Rhys Davies Mr Rhys Davies , Westhoughton

May I interrupt the hon. and learned Gentleman? I know that if a person is physically injured, and suffers from neurosis consequent upon physical injuries, he is entitled to and generally gets a pension, but the vast majority of cases are of neurosis without physical injury, and those are the cases I am troubled about.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

I would like to assure my hon. Friend that this is a matter with which those of us who have had to deal largely with workmen's compensation are extremely familiar. It has been decided, in cases of neuresthenia or neurosis which supervene from an accident without any physical injury, that if the chain of causation is right and it is established that the neurosis is the result of the accident, the workman gets the compensation, although he may have suffered no physical injury at all. Similarly here, if a mariner is suffering from neurosis as a result of the war experiences now included, he will be entitled to his compensation. Also in regard to tuberculosis; if it is the result of exposure sustained as a result of one of these sets of war circumstances, he will be entitled to a pension.

Photo of Sir A.P. Herbert Sir A.P. Herbert , Oxford University

Does the hon. and learned Gentleman mean that tuberculosis is included in the definition of physical injuries?

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

If caused as a result of enemy action, yes.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

Perhaps I can put that right. Everybody is anxious to get everything he thinks about into the Bill, and although unfortunately we cannot do that, my hon. and gallant Friend can have the assurance that tuberculosis is so regarded if it is due to war injury or anything of that kind.

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

That explains the first point which was troubling both my hon. Friends.

Photo of Mr Charles Ammon Mr Charles Ammon , Camberwell North

But can a neurosis be described as a physical injury?

Photo of Mr David Maxwell Fyfe Mr David Maxwell Fyfe , Liverpool, West Derby

If my hon. Friend will go with me afterwards, I will show him how that matter was dealt with under the Workmen's Compensation Act. I think that all his colleagues who have had to deal with compensation cases from the trade union point of view, as I have had to deal with them a stage or two further on, will see that there is no difficulty. It is a physical injury. It has even been tested in the courts and established that it is a physical injury for somebody to suffer a shock from seeing someone else have an accident. It is perfectly clearly established, and there can be no getting away from that point.

Now I come to what I think is the more difficult suggestion with regard to those who are over the Workmen's Compensation Act limit. The feeling that the Government have is this. This Bill is designed to give compensation for war injuries, that is, injuries sustained in circumstances in which there is a war risk. We have endeavoured to evolve the best definition that we can, and the best possible test, for deciding whether war conditions are to be taken as being responsible—that is a matter with which I have already dealt a short time ago—for the risk or for a substantial increase of the risk. I would ask my hon. Friend to consider this. It seems to me that it is logically right to say that having fixed a criterion or a test as to whether it results from war matters or not, you cannot suddenly change your mind, and say that the test is whether the man will get compensation under the Workmen's Compensation Act or the common law. The answer to that would be, if the Workmen's Compensation Act or common law limitations do not suit you, you must change them. I ask my hon. Friend to accept it on that basis. We feel that it is necessary to find the best test for deciding whether it is a war injury or not, and having decided on what is the best test, we must abide by it. While we sympathise, and must sympathise, with those cases—which I hope will be comparatively few—in which it is impossible to show that any war matter has substantially increased the risk and where the persons concerned are outside any other compensation, we must stand by the principle of the Bill before the House, which is to extend the rights in relation to war injuries, but only in relation to war injuries.

Photo of Mr Robert Taylor Mr Robert Taylor , Morpeth

Before the hon. and learned Gentleman sits down, may I point out to him that this is a very important matter, especially in relation to neurosis, because we are having the greatest possible trouble in regard to the Army? Where soldiers have shell shock we are finding that the Ministry of Pensions is taking a different line altogether from that which was taken in the last war.

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

The hon. Member must not discuss the administration of the Ministry of Pensions on this Bill. We are dealing with mariners.

Photo of Mr Robert Taylor Mr Robert Taylor , Morpeth

Yes, I want to deal with mariners, but I want an assurance that neurosis will be for mariners a clearer title to compensation than it is for soldiers. In regard to workmen's compensation, there has been some difficulty. There has been some tendency in late years to bring it in that men were suffering from neurosis instead of nystagmus and debar them from compensation. I therefore want us to have a clear statement that neurosis will be a title to compensation for mariners.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I would like to ask whether the hon. and learned Gentleman does not think that the argument he has just addressed to the mover of the Amendment does not prove conclusively how unfair it is that this matter should be left in its present unsatisfactory position. He asks us to agree that, if there are hard cases, we may be very sorry and view them with every sympathy, but that we are not to do anything about it because we have to draw a line between workmen's compensation and pensions, and, having drawn it, we must stick to it. That was the general argument. But does he not recall that the Leader of the House, on the previous Amendment, when we were saying that this puts too difficult an onus upon the applicant, told us that if we did what we wished, we should lose the workmen's compensation rights which the applicant would otherwise have? Having recommended us not to persist in the previous Amendment because if we did we should take away somebody's rights, is it not now unfair to go on to say that, having accepted that line of division in order to protect somebody else, we should now fail to take a step to protect somebody who suffered from that very decision? I do not know whether I am making myself very clear, but I think the argument, if people will take the trouble to look at it, is this. Here you have a class of people who are going to suffer from a war peril. The learned Solicitor-General says that he cannot do anything about that because we have chosen a line as to what is workmen's compensation and what is not, but we only accepted that line in order to preserve somebody's workmen's compensation rights, and we are dealing in this Amendment with people who have no workmen's compensation rights.

What possible harm could be done if the Government were to say, "Here you have somebody who has no claim against the owner, who has no claim against us at present. If he suffers death as a result of war service, his widow and children will be deprived of their source of livelihood by reason of a war peril which it is the general purpose of this Bill to provide pensions for. As there is such a case never mind the anomalies and the strict definitions. Here is an injury which will be suffered by reason of war circumstances, by reason of war service. If you can only deal with that injustice by accepting this Amendment, surely you ought to accept it, and if you cannot accept it either by reason of the way in which it is drafted, or for some other reason that seems good to you, surely you ought not to be content to say, "It is a hard case, but you must put up with it." The onus is upon the Government, to find some way of compensating or pensioning cases of this kind. I am quite sure that my hon. Friend does not mind which way it is done, either in the way suggested in the Amendment or by some other method. Obviously he has made out a case for people who suffer through war service and get neither compensation from the owners under the Workmen's Compensation Acts nor any pension under this Bill. They are to be left out in the cold. Unless there is some good reason why they ought to be left out, it is the business of the Government to find some method of bringing them in.

Question put, "That those words be there inserted."

The Committee proceeded to a Division, but there being no Members willing to act as Tellers for the Ayes, The CHAIRMAN declared that the Noes had it.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

On a point of Order. Am I mistaken in thinking that the time for putting in Tellers on these occasions is after the second call?

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

The Tellers have to be put in before the second call.

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

I beg to move, in page 2, to leave out lines 27 to 30.

This is merely a drafting Amendment, as regards definition, under Clause 1. Later on I shall move, in relation to salvage workers, an Amendment on the Order Paper which gives a clear definition of "harbour" and "tidal water."

Amendment agreed to.

Further Amendment made: In page 2, line 33, leave out from the second "ships," to the end of line 35.—[Sir W. Womersley.]

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

Photo of Admiral Sir Roger Keyes Admiral Sir Roger Keyes , Portsmouth North

I wish to ask the Minister whether, if a small vessel is lost by bombing attack in harbour, and the owner cannot get compensation from the Board of Trade because she is a seagoing vessel, is there to be compensation under this Bill?

Photo of Mr Walter Womersley Mr Walter Womersley , Grimsby

I am afraid I shall not be able to answer every point about every position that may arise. I shall have to look into that and let my hon. and gallant Friend have an answer.

Photo of Admiral Sir Roger Keyes Admiral Sir Roger Keyes , Portsmouth North

I sent in a Question to the Minister of War Transport several days ago.

Photo of Mr Philip Noel-Baker Mr Philip Noel-Baker , Derby

I must apologise to my hon. and gallant Friend, but it never reached me. If he will be good enough to write to me, I will go into the matter. The letter may have been sent to the Board of Trade.

Photo of Sir Henry Morris-Jones Sir Henry Morris-Jones , Denbigh

I think it is rather unfortunate that the Minister is not able to put in this Clause something in addition to the question of physical injuries, because there is no question that this does affect a large number of men.

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

We have just discussed and decided that matter. We cannot re-discuss it.

Photo of Sir Henry Morris-Jones Sir Henry Morris-Jones , Denbigh

On the Question: "That the Clause stand part of the Bill," is it not competent to make some observations on certain parts of the Clause? I notice that the Clause deals with physical injuries. There are other sorts, not physical but at the same time very crippling, which come within the scope of pensions.

Photo of Mr Douglas Clifton Brown Mr Douglas Clifton Brown , Hexham

That is the point we discussed, and we cannot re-discuss it.

Question, "That the Clause, as amended, stand part of the Bill," put, and' agreed to.

Clauses 2, 3 and 4 ordered to stand part of the Bill.