Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
I beg to move, in page 7, line 13, after "shall," to insert:
after giving the employer concerned an opportunity of being heard.
This Amendment and the next Amendment in my name and that of the hon. and gallant Member for Epsom (Sir A. Southby) go together, as they both raise the same point. I am glad to say that they do not raise any trade union question.
I hope that after those pleasantries I can start. I hope that these Amendments will be accepted by the Government. They are merely drafting Amendments. As the Clause stands, it will apparently give the committee the right to determine any question whatsoever, without giving the employer an opportunity of being heard. Similarly, Sub-section (2) starts:
Where the committee are satisfied that default has been made.
There is no provision there, either, for giving the employers any hearing at all. [An HON. MEMBER: "They do not deserve a hearing."] That may be, but most people in this country think differently. The hon. Member opposite thinks that the system ought to be changed because we have had it for a very long time, and this Amendment merely provides for the perpetuation of that system by the insertion of these words.
I hope my hon. and gallant Friend will not press this Amendment. I think it quite unnecessary. It would be undesirable to put in words saying that employers must have oppor- tunities of being heard, because it is quite obvious that both sides must have opportunities of being heard. The proceedings before these committees will fall to be dealt with under paragraph (1, b) of Clause 16, which gives power to make regulations in regard to procedure, but I can assure the Committee that those regulations will provide, in the ordinary sort of procedure, for both parties being heard.
I beg to move, in page 7, line 14, at the end, to insert:
and such person shall have the right of legal representation.
Lawyers are not liked by the Committee to-day and I am rather fearful in putting this Amendment forward. It does not matter whether you have a lawyer of standing or not, he may be totally inexperienced, but when there is a tendency towards whittling down the rights of people and regimenting them as much as we have done—though of necessity, during the war—you should give applicants a right to legal representation. It has always been a right in this country to be legally represented and in these cases, which may, in fact, involve amounts of money, and which may even go before the High Court for decision, applicants should be able to employ counsel or solicitors if they wish.
We are opposed to this suggestion, and our opposition arises out of our experience. Under the Unemployment Insurance Act there is machinery which has functioned very efficiently in matters connected with this kind of thing. The same thing applies to the National Service Acts. We have had very few complaints up to now of the functioning of the machinery set up by the National Service Acts, and I said, on behalf of my hon. Friends on the Second Reading, that our main aim is to keep the administration of this Act out of the hands of the legal profession as much as we possibly can. We have had experience of that in the administration of the Workmen's Compensation Acts and other Acts, from which we have suffered very severely. It may be said that people holding managerial and administrative positions, like managing directors and others, will be affected by this Bill and should have the opportunity to be legally represented. We admit that our people will be adequately represented provided they are members of a trades union, and those holding managerial and administrative positions will no doubt be members of their own professional organisations and able to arrange for some member of their professional institution to represent them. We hope that the administration will be kept on the same basis as that of the Unemployment Insurance and the National Service Acts. We are sure that the people will retain their confidence in the machinery provided that the Measure is administered in the same way.
I regret that I cannot accept the Amendment. I want no reference to this in the Bill at all. In regard to the rules of procedure, referred to by an hon. and gallant Member, we shall have to give a little further consideration to the matter and I hope to be in a position to make a statement on the Report stage. I would like to make it clear to my hon. Friend the Member for Stoke (Mr. Smith) that anything that we do under this Bill, owing to its peculiar character and the nature of the problems with which it seeks to deal, must not be taken as a precedent for the procedure under any other social service Act. If this were to be a social service Act like the Unemployment Insurance Act, the Government could not yield to the proposal. But there is this difficulty. Under this Bill the Reinstatement Committee can award compensation, which is taking the money from citizen "A" and ordering it to be paid to citizen "B." This is a legal proviso which is a substitute for the court of summary jurisdiction to some extent. Having regard to that situation, I do not think that it would be wise for me to refuse to consider some provision which would look after that type of case in the regulations when they are drafted. I shall be interpreting the feelings of the Committee when I say that no one in this House wants regulations to be drafted which will encourage before a Reinstatement Committee anything in the nature of the usual legal procedure or the kind of process that usually goes on. When a person is outside his association—and this goes right up to managers and to all sorts of people who will be involved—or if he is an employer, the procedure is required to be in such a form that he may be represented by a member of the legal profession and that the inquiry will operate on the basis of a friendly procedure rather than otherwise. If that principle is accepted—and I can look into it in order to be able to make a clear statement as to the form the regulation shall take, between now and the Report stage—I would ask the hon. Gentleman to withdraw the Amendment.
I can see, unless the Minister is very careful when considering this matter, that it will be opening a wide door. It may be that well-placed people will be able to employ the very best legal assistance, and that will mean that ordinary people like ourselves who cannot afford to employ any legal assistance will be prejudiced in comparison. Seeing that this Bill is carrying out an undertaking given by the Government that all people will, as far as is reasonable and practicable, be reinstated in their pre-enlistment employment, I am hoping that the scales are not going to be weighted by the assurance given by the Minister, because one man will be able to afford the best legal advice while another man, simply because he is poor, cannot afford it.
I was a little concerned, in listening to my right hon. Friend, because I think the case for keeping the lawyers out of this is far more heavy than he led the Committee to think. We are dealing here with an industrial problem and we want, so far as we can, not to introduce these nice questions of law. My own view is that where we have seen lawyers interfering in industrial Acts—the Workmen's Compensation Act and the recent Coal Award—it has not helped the industrial community to get along with the job. I hope, therefore, that in giving this matter further consideration the right hon. Gentleman will realise the very strong feeling that he would be well advised to keep the lawyers out of this altogether—if I may say so with great respect, Major Milner.
I regret having to intervene in this discussion but, as a member of one of the professions which have been discussed rather fully in this connection, I feel that a word, at any rate, ought to be said. The profession of an advocate is a very honourable one—
We are all interested in being paid, and nobody is more anxious than the hon. Member to see those whom he represents properly paid for difficult work. The profession of an advocate is an honourable and very responsible one indeed. It is one which places upon the person who practises it a greater moral strain than most, as most of us who have been through that school know. It is also an indispensable one for the administration of justice. There are many people in the industrial world, many very wealthy people, many very powerful people, very effective in industry, many people in all walks of society who cannot speak for themselves. It is not everybody who has "the gift of the gab," the facility of a trade union official or a barrister, and it is those people who require the help of an advocate. I do not want to belittle the great work in the realm of advocacy which is done by trade union officials, but there are many individual workmen and many employers who do not belong to these powerful organisations on one side or the other. They do require the help of a responsible advocate, and when they get that help, they ought to have the help of one who is bound by the honourable rules of conduct of a very ancient trade union. The ethical rules of advocacy—the duty to the Crown, the duty to your opponent, the duty to the court—are things which are inbred in those who have passed through this difficult test before they are allowed to practise.
Where representation is to be allowed at all in matters affecting justice to any individual, of whatever class, there a responsible advocate ought to be allowed to practise his profession in accordance with the recognised rules of advocacy. The hon. Gentleman the Member for Stoke (Mr. E. Smith) expressed a fear that great wealth might play an undue part. I am bound to say that has not been, on the whole, my experience of legal processes. I would like to give him this reassurance. On the whole the members of the profession, giving what he described with courtesy as the very best legal advice, do usually protect themselves by demanding fees of such a character that puts it quite out of the question that anybody would be tempted to employ them in a case of this kind; they would have to put up with someone like me.
My hon. Friend the Member for Stoke (Mr. E. Smith) raised a rather important point, to which I would like to add another aspect. I am a little alarmed lest what is to be a privilege should become the rule. I think it would be deplorable if it was made apparent to the ordinary applicant that in a case of this kind he would gain an extra advantage if he had an advocate which he would not have if he went alone. The courts must see that the applicant, whether he is able to plead his case with force or not, will get justice and fair play. It would be a disadvantage if it went out from this House that any privilege would be gained by having an advocate that was not there for the man who could not afford an advocate. If a poor person feels he must have an advocate it will put an extra burden on him in making his appeal, because he will have to pay the cost of his appeal, whereas it might not be necessary at all if he was sure he would get the same consideration without an advocate.
There is a great deal to be said for the legal profession as friends of the poor. Some would readily assist a man who was perhaps incoherent and illiterate to put forward his case. My experience of the courts for 25 years confirms my opinion that there are many people who cannot give the salient facts of any matter. To vilify the legal profession is altogether against my experience. Take the case of girls on Tyneside, who have been sent away because they are mobile—whatever that means. I am quite sure that many would never have had to go had they not been scared to death of the courts and lost their powers of speech when asked to state their case. That I know, because I have got the facts from them in my own house quite easily in 10 minutes. They were terrified of the courts. It is a great advantage to have the opportunity of putting the facts clearly and succinctly so that the courts will be able to come to the right decision. It is the last fact that matters; a case is never heard until all the facts have been brought out. I had charge of all the workmen's compensation cases on the south side of the Tyne for many years, and I knew how serious it might be if the facts germane to the issue being discussed were not given clearly. Therefore, I hope it will he possible for the legal profession to be allowed to come forward as friends, just as they do under the Poor Persons Act. In a matter like this I am sure a great many lawyers would take a very nominal fee, perhaps no fee at all, in order to get the facts clearly stated.
The hon. Member does not seem to understand what we are discussing. There is general agreement on all sides that those who are coming before the committees will have representation. What we are insisting on is that the representation shall be of such a character as will eliminate professionalism. The hon. Member suggests that, just as a trade union official or a member of the Communist Party would be prepared to go into court or on to one of these committees and present a case for a particular individual without payment of any kind, members of this honourable profession will do the same thing. You will get no participation by the legal profession except on the basis of professional fees. The members of this honourable profession are swimming around all the time, like hungry sharks ready to snap here and snap there wherever there is any appetising bait. I remember having a debate with a member of the legal profession who was once Solicitor-General.
I am not against legal men coming on to a Committee if they come on as honest men. The Solicitor-General in debate with me said, "Who will do the dirty work under Socialism?" I said: "There will be no dirty work because we will change the whole character—"
I have no objection to legal men. I want them wherever it is the feeling of an individual that a legal man would best represent him, but it should be put in the rules and regulations that there must not be any kind of professionalism.
I am very grateful for my right hon. Friend's assurance of what he will do between now and Report. I should like to say to hon. Members opposite, as one who has been connected with the law for some 40 years, that I have given more than half my life to poor persons and I am certain that these cases which will come before the courts and Reinstatement Committees will be dealt with adequately by people of my own type who are quite willing to give their services.
I beg to move, "That the Chairman do report Progress, and ask leave to sit again."
I desire to ask the Government Whip whether he will consider if it is not an opportune moment to report Progress. The two next Amendments, which are in my name, are of considerable importance and would involve a large change in the Bill. Perhaps we may have some indication of how long it is intended to sit.
I beg to move, in page 7, line 18, to leave out from "make," to "having," in line 19, and to insert "the following order."
This and the next Amendment, to leave out paragraph (c), raise a very important question and if accepted would involve a considerable change in the structure of the Bill. I am moving the Amendment because it is my sincere belief that it is in the interests of the ex-Service man. The Bill provides that where a bad employer has not been willing to carry out his duty and has not offered employment to one of his former employees when he returns from service, the Reinstatement Committee can decide upon one of two courses. They can either direct that this bad employer shall take the man back for six months, or direct that he shall pay the man his wages for six months as compensation. I can conceive nothing more unpleasant and less useful to all concerned than that a man who has come back from serving his country should be directed back into the employment of a bad employer who does not want to employ him for the limited period of six months. He would be far better placed if he were told right away, "We have found that your employer is not a good employer and is not prepared to carry out his duty; we have, therefore, decided that he is to pay you six months' wages as compensation, and you are at liberty, with the full help of the Ministry of Labour, to try and fix yourself up in some suitable job." Members opposite have frequently said that there is nothing a man dislikes so much as being out of employment and that what he wants most is a job. I agree with that entirely, but there is such a thing as having a job which is not useful to him, that handicaps him in making his future arrangements. That is not helpful to him or to his employer, and, what is perhaps even more important, it is not useful to the community.
It is better that this kind of case should be dealt with by making the employer pay the penalty. The mere fact that he has a decision of that kind given against him will be a black mark which will not improve his general standing. One important point arises with which I think perhaps the Minister may deal in his reply. There are cases where it is not so much a question of deciding that an employer is a bad employer who is not willing to make employment available when he can, but a question as to which out of two or three employees he ought to take back into employment. It may be that the Minister will say that the alteration I propose would result in there being no machinery to decide that important point. I would suggest that if the Amendments are made, the Minister could easily between now and the Report stage, bring up a Clause to deal with that aspect of the case.
I do not want to detain the Committee more than a moment, but I do want to reinforce what has been said by my hon. Friend who moved the Amendment. The desire behind this Bill is to settle men happily and amicably into employment. I know the Amendments on the Paper seem rather drastic and revolutionary, and I have not much hope that my hon. Friend the Parliamentary Secretary will accept them, but I do hope he will consider the idea which lies behind them and see whether he can do something on the Report stage to carry them into effect. It seems absurd to force a man on a bad employer. It can only lead to an infinity of trouble for the employer and the man. If a man who comes back from the Forces, tired and browned off, is forced on a bad employer nothing but trouble can result. It would be better after inquiry into the circumstances that the tribunal should be able to decide that it is impossible for such a man to settle happily in such employment, but that he is entitled to make a claim under the Bill.
It is usual at this stage of the proceedings for hon. Members to meet black looks if they intervene in discussion and apparently delay the progress of the Bill, but I am one of those who believe that when this House is passing legislation, we ought to look at it very carefully to find out first what the Government mean by the words they have inserted in the Bill, and secondly to decide in our own minds whether those words are going to have the desired effect. What is the desired effect which the Government wish to achieve in this case? My right hon. Friend the Minister suggested that as a second front was about to be opened we should not say anything to lead men to believe that when they come back it will be to a country not fit for heroes. My hon. Friend opposite has put a very substantial point. These men do want employment. I am certain they have had quite enough of the type of employment in which they are ordered to go here or go there, and they will not want to serve an employer who can make life hell for them if he is forced to take them back.
I would far rather, in the prevailing circumstances, make a substantial money payment in cases like that, and I think the men would prefer it too. Do not let us forget that the Government have not disclosed their intentions in regard to full employment. It has always been a tradition in this country that labour was free to choose its own employment and it would be something to the disadvantage of labour if it were forced to go back to an unwilling employer.
I am bound to say that I do not think that the Bill, as it now stands, is going to achieve its effect. We must take the Brill for what it is, namely, a general assertion that, as far as is possible, the men will go back to their old employment. In those cases, and I should say that they will be in the minority, in which employers say "I do not want you back," the labour, like water, will find its own level, particularly in the immediate post-war years, when I think the circumstances will be such that there will be a considerable demand for labour. I do not rely on the Bill or on this Clause to give the men the full employment that they want. Therefore, I would urge my hon. Friends not to press this Amendment upon the Minister. I do not suppose he will accept it. I urge them to be satisfied with the case which they have put up, and which will go out to the country so that employers in general will know that they must try as they did in the last war, voluntarily, under the King's Roll for example, to pay regard to the services which men and women are giving to the country. Employers will do it, without any Clause or Amendment such as has been moved. We understood that the Crown were not included in the Bill. If the Government will tell us that the Crown are to be placed under exactly the same obligations as the private employer, to pay compensation if they do not find jobs, perhaps we shall be more satisfied than I was a little while ago, when the Minister jumped on me for trying to score points. I do not want to score points. All I want to do is to elicit from the Government how far they intend the Bill to be a reality.
I find myself in considerable agreement with what has been said by the hon. Member and I feel that the Amendment brings out very clearly the special defect of the Bill. It makes a great many of us think that the Bill will prove completely unworkable and entirely unsatisfactory, because, in the case of the vast majority of the men who have been in the Forces, they will be immediately taken back by their employers when they return. The only purpose of the Bill is to bring pressure to bear and to try to insist that a certain number of men who would not otherwise be taken back shall be taken back into employment.
In the circumstances immediately after the war, if an employer is unwilling to take a man back, there will be something wrong either with the employer or with the man. In his Second Reading speech, the Parliamentary Secretary replied to a point which had been made that there ought to be an opposite obligation on the man to go back to his employer, by saying that a disgruntled employee would not be a happy employee and that it would be better for all parties concerned if a change were made. What applies on the one side is likely to apply on the other. I cannot believe that a relationship between employer and employed where the man is forced back upon an employer who does not want to receive him, will be satisfactory to either party. I see the Attorney-General on the Front bench, which reminds me that the Bill actually attempts to give specific performance for personal service. That is a thing which the law has always consistently refused to do. In cases of personal service, where a contract has been broken, no attempt has ever been made to do so, because it has clearly been shown to be no remedy to compel one person to employ another. Therefore in those cases monetary compensation is paid. I hope that the Joint Parliamentary Secretary will not be too proud to give some consideration to the Amendment which has been moved. I quite recognise that it goes rather deeply to the root of this Bill, but if we have been able to persuade him that there will be very great practical difficulties in making this Bill work, and in the general interests of industry and the employed men, I suggest we should confine ourselves to giving them financial compensation and not try to force them on an employer who does not wish to have them.
I do not think that the last speaker really applied himself to what this Amendment and what this Clause contain. We are suggesting that two courses are open to the Reinstatement Committee, either an order requiring employment to be made available to the applicant or the payment of compensation. The object of the Amendment is to cancel the first course and provide only that compensation shall be paid. The mover of the Amendment seemed to assume that all employers who appeared on the one side of the Reinstatement Committee would be bad employers. I do not think that would be the case.
I cannot allow the hon. Gentleman to say that. I specifically said there would be cases to decide between one employee and another. I said that an employer who is only able to give one man a job would require to go to the Committee to have a decision as between two or three applicants.
I do not think that last observation is worthy of reply. I was endeavouring to deal with the points the hon. Member had raised. He said that men should not be directed back and should not be forced back to bad employers. This Bill does not force a man or direct a man in any way. This Clause merely provides that the Reinstatement Committee shall require employment to be made available. It does not order the man to take it if he does not wish to do so. The Amendment endeavours to remove what we regard as an essential part of this Bill, namely, that provision that the Reinstatement Committee can order the employer to make employment available for a man if it thinks fit, and if the employer refuses then to make it a criminal action—[Interruption]—a criminal offence. If that is removed half the object of the Bill goes. There is one other point I would like to submit to hon. Members. If the Reinstatement Committee is allowed to make only money awards that might lead a number of persons who are not really seeking employment at all but who think there might be a bit of money about to make frivolous applications to the Reinstatement Committee. But if such people know that the Committee can order that they be reinstated and that the only advantage they will have is to go back to work which they do not want we hope that that will be a substantial safeguard against frivolous action by persons who are not really seeking employment. I cannot see why the hon. Member wishes to take away from these Reinstatement Committees the right to order reinstatement or compensation, whichever they think is more appropriate in the particular case. Therefore, I ask the Committee to reject the Amendment.
My hon. Friend's dosing remarks about provoking frivolous applications to the committees suggests that he has not got much of an opinion of the committees which will be set up. The committees might be expected to know whether the applications were frivolous or not, and if they thought they were frivolous they would not force the man upon the employer. This Bill is designed to deal with the bad employer or the bad workman. [Interruption.] If there is a dispute, the good employer will take the man back when the matter has been threshed out. The only time when the sanction will be applied is when a bad employer refuses to take a man back. It seems to me that to send a man back to a bad employer, knowing that he is not wanted, is not helping the man at all.
Can my hon. Friend give us some indication as to what is intended? For instance, he said that the committees had two alternatives. In what kind of case does he think they will say to an employer who has refused to take a man back that he must take the man back, and in what kind of case will they say that he need not take the man back?
That is a matter for the committees. It would be most inappropriate for me, without the facts before me, to attempt to dictate to them what they should do, one way or the other. It is a matter for the free and unfettered choice of the committees.
There is obviously a danger that a certain type of man will try to use these committees to get lump sum payments. I am sure, from what my hon. Friend said, that he thinks that a danger to be guarded against. The only protection in such a case is to put the man to work, because he is probably a work-shy, trying to get money in that way. But is that safeguard sufficient? It may be impossible to find work of his kind, and he cannot be directed to anything else. Is it not a fact that while the matter is in dispute he cannot be found anything else?
I hope that the Minister will reject the Amendment, because I think it is based on a misunderstanding. It has been argued that this will compel the committee to send a workman back to a bad employer. That argument ignores the words in the Sub-section, which are:
having regard to the circumstances of the case.
The committee have to have regard to all the circumstances, and one of the circumstances would be that the employer and the workman could not work together satisfactorily. Therefore, they would not be compelled to send the workman back. They have the alternative, and it is open to them to take either or both courses. They can send the workman back and order the lump-sum payment, or they can leave him out of work and order the lump-sum payment. I have no doubt that the sort of case to which my hon. and gallant Friend the Member for Epsom (Sir A. Southby) was referring, where there are bad relations, is the sort of case in which the tribunal would adopt the latter alternative, and not send the man back. I hope, in these circumstances, that this Bill will be allowed to stay as it is.
If the speech to which we have just listened had been made by the Parliamentary Secretary, it might have been helpful. We asked the Parliamentary Secretary to give some guidance as to how the powers will be used, and what were the reasons for the two alternatives, but he gave us none at all. If we may be assured that what the hon. and gallant Member has said will in fact be followed—[Interruption.] All I gathered from the Parliamentary Secretary was that they would follow it in their own way and we should possibly get a large variety of decisions all over the country. Personally, I am not going to accept my small share of the responsibility for passing this Clause as it is, and I certainly do not intend to withdraw the Amendment.
I would like to ask a question of the Attorney-General. It arises from the Debate on a previous Amendment. Will these conditions which apply to ordinary employers, namely, to reinstate and/or to provide compensation, apply to the Crown? The Attorney-General has told us that the Crown is not included in this Bill, but I see that the Minister has given an undertaking that those whose jobs previous to enlistment were with the Crown shall be favourably treated. What is the position in regard to this Clause in that respect?
I think the hon. Member is still saying that the Bill provides that employers must either give employment or provide compensation. The Bill provides nothing of the kind. It provides that he must take back a man if it is reasonable for him to do so. It is only if he fails in that primary duty that any question of paying compensation arises. The pledge which my hon. Friend the Parliamentary Secretary gave on Second Reading was:
The Government are prepared to accept obligations towards their former employees similar to those imposed on other employers under this Bill."—[OFFICIAL REPORT, 3rd February, 1944; col. 1447, Vol. 396.]
That means that the Government accept the obligation to take back or to find an alternative job within the framework wherever it is reasonable to do so.
The point arising out of that speech is whether, in case the Crown refuses to take back a Crown servant, he will have the opportunity of going to the Reinstatement Committee to have the question decided, and, if he is not going to have that right, what remedy will he have?
That statement of the Attorney-General's does not seem to fit in very well with the statement he made to me before we went for a cup of tea. He gave me the impression that the Government man is on an exactly equal footing with other employees. It was in respect of local authorities that I put a question to the Attorney-General. If the person was first employed by a local authority and the Crown took him over after a couple of years, or for a term exceeding a month, then the last employer is the Crown, and the Crown will be responsible for finding him work. If the Crown is responsible for finding him work and does not find him work, can he go to the Reinstatement Committee? My point is this. If the Crown does not find him work, is the Crown put on a level with local authorities or private employers? If not, there is something wrong with the Bill.
My hon. Friend the Joint Parliamentary Secretary tells me that they are considering suitable and adequate machinery for dealing with disputes should they arise. The reinstatement committees will be governed by statutory rules which do not apply to the Crown, because the Bill does not apply to the Crown. My right hon. Friend and my hon. Friend are considering what would be appropriate and satisfactory procedure and, no doubt, at a later stage they will be able to amplify what they propose.
I think that the Attorney-General will agree that the situation is unsatisfactory. The Crown is in a peculiar and particular position and I wonder whether it is possible for the Law Officers of the Crown to consider the position. It would appear to the public, which looks no further than it sees, that it is a strange thing that the Government are forcing the private employer to do something which they are unable or unwilling to do themselves. These things may possibly go wrong and I wonder whether the Attorney-General, with all the experience he has had in these matters, will consider this point between now and the Report stage and see whether something cannot be done to allay the general feeling of the Committee that the Crown should be brought into this matter in a very direct way within the powers that come under the Bill.