I beg to move, in page 1, line 15, at the end, to insert:
If this Amendment is agreed to, the first lines of Sub-section (2) will read:"except members of the family of the proprietor."
In moving this Amendment and I hope throughout all these discussions I shall endeavour to avoid all heat, as suggested by the Prime Minister, and in my own humble way I shall try to open this Debate in the right tone. The object of this Amendment and of three other Amendments which I have put down is to protect and secure the small family business or the small independent business against undue and unnecessary interference. I wish to do nothing which would discourage the small independent family concern or small businesses now in existence, and I wish to do everything possible to encourage men and women now serving in the Forces who desire, after their demobilisation, to establish independent ways of livelihood of their own where they will be their own masters. I would point out that many of the great businesses that have grown up in this country have started from the smallest beginnings. You have the case of Lord Nuffield who started with a small bicycle shop worked it up to a mighty business, and the case of Levers starting from a small shop. We want to encourage that kind of thing. We want to encourage individual effort. We want to do so, for certain general reasons and also for certain specific reasons which apply to the catering trade. On the general reasons, I submit that we ought to try to keep the family as an intact institution. I want to see it kept free from minute and unnecessary control by the State. I am old-fashioned enough to believe that there is something in the phrase "An Englishman's home is his castle", and the State should invade that home only when it is absolutely necessary to do so. In the first place, therefore, I say let us keep the family as intact and as secure as possible. Secondly, I believe that the small independent trader is a great national asset, especially in these days. As an eminent Socialist, Mr. G. D. H. Cole, has pointed out, we want to keep little islands of individual enterprise and individual liberty in these days when the authority of the State is growing far too great. I would say to hon. Members that this applies not only to the authority of the State but to the authority of finance—capitalism and monopolies. Against these also we should guard the individual. Therefore I want to preserve in this country of ours those islands of individualism. I would make an appeal to my right hon. Friend the Minister. He is a great leader in the trade-union world. I want to see institutions like the great trade unions kept as free as possible from control and domination by the State, retaining the utmost possible amount of liberty. In the same way, I want to see the individual small business and the small family concern retain as much liberty as possible to be preserved as centres of resistance against the increasing tendency towards domination by the State. This desire on the part of our people to start small businesses is a part of the English national character. It is the desire for independence and the willingness to risk one's capital, to risk the chance of failure, in order to be independent. It is a quality which has helped to make us a great nation. We want to preserve that national character which has saved us so often in the past and which saved us only a year or two ago; we should do nothing which would undermine that character and reduce our people to becoming a kind of herd without initiative under the State. As to the specific reasons which apply in the case of the catering trade, I would point out the special position of the family business in that trade. How is the catering business run in France? Those of us who have been in France, whether in peace or in war, know that the little restaurant in the provincial town where one could always rely on getting an excellent meal was nearly always a family business. There were monsieur the cook in the kitchen, madame seated at the desk, and mademoiselle waiting at the tables. That was the best catering in the world, and that is what we want to encourage in England, especially after the war, when there will be many people, both men and women, now serving in the Armed Forces who will have had the necessary training and will desire to start in this business on their own account. May I put this case to my right hon. Friend, because it is one which I know of in my own neighbourhood and which is representative of many other cases? It is the case of a widow, perhaps of a seaman or a skipper, who has been left with a house and furniture and some very small income. During the summer she takes in perhaps three or four lodgers. She does this for short periods of six or seven weeks every year, and she may get the same family staying with her year after year. I take it that she will come under this Bill, because this business of letting rooms is the only business which she carries on, and she would, therefore, probably be held to be "wholly or mainly" employed in the catering Indus- try. I do not want a woman in that position to come under the very drastic inspection powers of the kind set out in Clause 10. I do not want her to be harried by Government inspectors coming into her humble home; I would point out that in these humbler homes the vaguest suggestion made by a Government inspector is taken as a command from the State. The person concerned will say, "They, the people in London, want me to do this, and I must do it at all costs." Nor do I want a woman such as I have mentioned, to be compelled to fill in complicated forms. I know something about these Government forms. I had some experience of them 30 years ago with which I shall not weary the Committee, but I discovered then that the danger of these forms is that they are drawn up in London by officials, with full knowledge of London conditions, and are applicable to London but not to country conditions. In connection with London businesses, of course, there are chartered accountants and stock-takers and proper systems of bookkeeping. But these forms are also sent to the country, where the conditions are entirely different and where a lot of trouble is involved in completing them. May I give some instances to my right hon. Friend? In Suffolk we talk about "scratching for a living." Let hon. Members think of the variety of ways in which people get a living in the country. In a village, for instance, one place run by a woman, with the help of her daughter, may be the village post office, the village shop, and the small tea shop where cyclists go for tea. I do not want such a woman to be over-worried by Government forms and inspections. I will give another instance of which I know. It is a village near the coast, the innkeeper runs the inn, in the first place; secondly, he provides teas, and so on, and occasionally lets rooms to visitors; thirdly, he keeps the cows for the whole village and supplies visitors and villagers with milk; and fourthly, he runs a motor car and fetches visitors from the station nine miles away. He has four different businesses. Forms drawn up for big London catering establishments and sent to him would be utterly hopeless. He would not be able to fill them in. Another case to be considered is that of small hotels in country towns. In these towns there may also be a small restaurant. It may be that most of the time there is no business of trade for them. Then there comes a day when there is a local show, such as a horse show, and these places have to work all out. All the members of the family have to work, regardless of meals and hours, the neighbours have to be called in to help, and all of them have to go on working all the time, snatching a bit of food when they can. That is the one day of the year when there is a real business to be done. My right hon. Friend the Minister of Labour may admit that these are reasons for exemption, but he may answer me, "We will leave this to the Commission, Which will decide whether to include these small businesses. You can trust the Commission." I shall not be satisfied with that answer. I feel that it is the duty of the House of Commons to protect the homes of the people and not give these enormous powers to a bureaucracy in London, and that we should therefore insert some safeguards in the Bill. Let me say here that I do not want to trouble or worry my right hon. Friend the Minister of Labour without necessity. I want to thank him personally for his great services and to say, in common with the whole nation, how greatly indebted we are to him for the gigantic work he has undertaken since he has been Minister of Labour in marshalling with so little friction the manpower and womanpower of the nation to the maximum possible extent. Therefore, in putting forward these points to him, I assure him I do it only because I feel very strongly on the matter, and because I believe that in his heart he will assent to them. Because I believe he is in many ways a typical Englishman, I believe he will assent to my plea for the small man, for individual liberty, for the security of the family from undue interference. All of us have sympathy with those things. The danger is that in the world to-day there is abroad the germ of the totalitarian, authoritarian State. It is virulent in such countries as Germany and Italy, but do not let us think that that germ is confined only to Germany and Italy. I think we must watch out that we do not, without necessity, especially in peace time, increase the authority of the State. I remember reading recently that a Chinese philosopher 2,500 years ago said that those in authority should be careful not to try to regulate the details of the lives of their subjects because the subjects might not like the regulation and because in any case, the Sage added, to do so would mean that the governor would have a most troubled life. Having put the case of the small people before my right hon. Friend, I express the hope that he will give some concession, if not to-day, at any rate on the Report stage, and that he will remove the justifiable anxiety that exists in tens of thousands of homes of small people, that there may be unnecessary, wearying and occasionally rather terrifying supervision of and interference with these small family businesses."The workers to whom this Act applies are all persons, except members of the family of the proprietor, employed in any undertaking, etc."
I shall not take up much, time in supporting this Amendment, because one or two aspects of the case have been very eloquently put by my hon. Friend the Member for Lowestoft (Mr. Loftus). There is one point I would like to emphasise. The spirit in which many of us are approaching these Amendments is that, the House having accepted the Bill, it is our duty in committee to try to make it a success in every of the word and to see that it does really work. One of the reasons I support this Amendment particularly is that it is on this point that the Bill is likely to break down. Let me give an illustration from my own constituency of the type of person affected by this provision. In Shropshire there are very many small inns, very delightful places, run entirely by a family, but it can be said in a great many of these cases that the major business of the family is not that of inn-keeping. Even in peace time, particularly during the winter months, they do more farming than innkeeping, but at the present time, of course, owing to the very much smaller amount of traffic on the roads and the very much larger demands which are, quite rightly, made by the Minister of Agriculture, they are even more agriculturists than they are innkeepers.All Government Departments are developing the habit of regulating the lives of the people in regard to those matters that come under the aegis of those Government Departments. It is obvious that in future there will be considerable regulation of agriculture. I think it is generally agreed that the county war agricultural committees will not die, but that in future they will issue regulations connected with agriculture. If we are not very careful there will be a position in which the Minister of Labour will issue Regulations applying to these farm-inns which I have described and at the same time the Minister of Agriculture equally will issue regulations as to the employment of the people—the son, the daughter, the father—engaged in farming This will bring about an impossible position in which neither set of regulations is seriously obeyed, It is not a good thing to pass laws which are not kept. Moreover, it would put the commissioners or those concerned with the administration of the Bill, when it becomes an Act, in a very difficult position if they had to deal with such minute details and with the masses of exemptions that would be necessary if the Regulations issued under the Act are to be made applicable to the small family businesses. I am told that some of the great luxury hotels in London have over 2,000 employees, and I can understand that the Regulations in regard to hours, wages and conditions of labour in their case will be in line with modern industrial regulations which we all welcome at the present time. But is it seriously suggested that that type of Regulation can be applied to a man working what I call my farm inn with his wife and daughter? If we are not careful, they will not be able to see each other for the rest of their natural lives, because each will be on duty for eight hours at a time. The Minister will say that is a reductio ad absurdum, and that we can make Regulations to meet the case, but it is clear to those familiar with the circumstances of businesses of the kind that no Regulation can be effectively applied to them. On that ground I appeal to the Minister to exempt these family businesses by accepting the Amendment, which will not only preserve those islands of individualism which my hon. Friend referred to but will help in making the Measure work successfully.
I am sure the Committee, and I hope the Government, were impressed by the argument put forward by my hon. Friend the Member for Lowestoft (Mr. Loftus). I hope we shall have an explanation of exactly who are going to be included under this Clause, Clause 17 defines the workers to whom these restrictions are to apply as:
I do not know exactly, the meaning of the words "by way of trade." If we have such an example as that of a small inn kept by a farmer partly occupied in farming and partly in hotel keeping, where the whole concern is run by the family as a single whole, it is not clear to me whether the daughter or the son is working for the parent by way of trade or not. I should not support the Amendment if it could be shown that it was going to affect any serious breach in the general provisions of the Bill, but, as at present advised, I feel that in the case of members of a family actually concerned in running a small business it might be wise and expedient either to exempt them or to make some special provision by which this particular class of case can be dealt with."any worker who for the purposes of any undertaking or part of an undertaking per- forms any work in pursuance of an arrangement, expressed or implied, made by the worker by way of trade with the persons carrying on that undertaking."
I want to put forward quite a different point of view from that which is being put forward now, in order to elicit support for the Amendment. There are very few Members who have not a large number of constituents who take in a lodger, whom they supply with bed and, we will say, breakfast. The Clause says:
A private house has no trade at all. The only trade they do, if trade it be, is that the landlady supplies, perhaps, breakfast and supper to a lodger. This would cover any billeting done in any little house. It does not come, as I see it, within the category of catering as such. A vast number of working-class people often not only take in a lodger but, where friends of theirs have come from other parts to work in factories in the area, some of them are obliging the workpeople and providing them with board and lodging. If I understand it rightly, the Clause is so all-embracing that it covers every house in every constituency throughout the land where they take in lodgers and supply bed and breakfast. It will be agreed that that is not the intention of the Bill. It will be very difficult for hon. Members to support a Clause of this kind. Even a Member of Parliament may live in a seaside town, and friends may come down as paying guests. If I understand the Clause correctly—[An HON. MEMBER: "You do not."] If I do not understand it, perhaps the Minister will tell me where I am wrong. [Interruption.] I prefer the explanation to come from the Minister himself. I will give way now for the Minister to tell me where I am wrong."Providing it is partially or wholly a business or a trade."
The Debate has run rather wide. I hope the Committee will agree that the three succeeding Amendments in the name of the hon. Member for Lowestoft (Mr. Loftus), may be considered as covered by it.
I want to confine my remarks to the Amendment. Many of the questions that have been raised will, I think, arise on the question, "That the Clause stand part." I do not want to confuse the issue at this moment. First I ask the Committee to appreciate that if I had proceeded to deal with these services purely under the Trade Boards Act, it would have been the Minister who would himself determine this question of scope. I think I ought to say that at the outset. The Government have decided, in spite of the charges about bureaucracy, that in this Bill I will delegate what I would have to do myself under the trade board procedure, to an impartial Commission—an important change in the procedure of wage regulation.With regard to the Amendment, it is difficult to draw the line as to who should and who should not come within the scope of the Bill. My hon. Friend has raised the question of a person who takes in a few visitors in the summer, but whenever you have to decide this you get competition with the person who is running a boarding house and who feels that the other people are competing unfairly by not having to observe reasonable conditions. I am not opposed to what has been said, but I am anxious to find a solution. Therefore, in drafting the Bill I thought that the right course to take in providing the dividing line is to adopt the fundamental principle which has been adopted in workmen's compensation and much other industrial legislation, that is to say, Is the person an employed person? If he is a member of the family and there is no contract of service, he does not come within the Bill. From the point of view of the Bill, that is as straight a line as you can draw. If there is a contract of service and if a son or daughter is paid, they come within the Bill. On the question of inspectors visiting all these little places, I assure the Committee that there is no intention of doing that.
On a point of Order. When I was trying to make my case I gave way so that my right hon. Friend could explain the position Therefore I have not lost the right of speaking. I thought that my right hon. Friend was going to tell me whether I was wrong in my assumption.
A Member can always speak more man once in Committee.
I want to make it clear that the private house as such is excluded from the Bill. I have given further consideration as to how I could meet the hon. Member's point of view. For the purposes of this Bill only, instead of the Ministry preparing a list by the method that is usual under the Trade Boards Act, I would be prepared to incorporate in the Bill a proposal for a register and that before making the register I will take the advice of the Commission after they have taken evidence. My proposals, therefore, are to exclude people where there is no contract of service and limit it to contract of service; to leave it to the Commission when determining the scope of the Bill even to modify that in their recommendations to me; and to have a register after the Commission have heard evidence from both sides, that is to say, persons who are running a business for their sole livelihood as well as persons who are only running it as a side show. I think, therefore, that I have met my hon. Friend's point of view, and I would ask him in the light of that not to press the Amendment.
From what my right hon. Friend has said, it is obvious that I was right in my assumption that the Bill is all-embracing. It is true that he says that cases where there is no contract will be excluded, but I submit that if a house employs part-time help that will constitute a contract of service and bring it within the scope of the Bill. I hope that my hon. Friend will take the Amendment to a Division. I do not believe it was ever intended to bring ordinary private houses under the Bill. My right hon. Friend does not deny that I am right but says that he is delegating his functions to a Commission and that it is within their discretion as to who shall be included. Are we prepared to leave such a vital issue to the discretion of some body whose qualifications we do not know and which has not yet been appointed? We shall not be doing our duty to our constituencies and to the working people if we allow small houses to be brought within the scope of the Bill.
I listened with great interest to the Minister, and it seemed to me that he was announcing a number of proposals to which he certainly cannot give effect under the Bill as it stands. He says that the Bill includes the private house. Subsection (2) of this Clause says that the Bill applies to the workers in
of a business. If the only thing that happens in what is to all appearances a private house is the occasional letting of apartments, that is the only undertaking carried on in the house. Clause 17 says:"an undertaking which consists wholly or mainly in the carrying on"
I am satisfied that if anybody takes in lodgers occasionally, the attention of the Chancellor of the Exchequer will be drawn to the fact, and an inspector of the Inland Revenue will make an assessment in respect of the earnings from this occasional taking-in of lodgers. He will regard it as an undertaking, and the words "wholly or mainly" will apply to it; the people will never do anything in that house except live there and occasionally take in lodgers. Therefore it is no good the right hon. Gentleman saying that he will have a register, for I do not see that he has taken power to do that, and he has not given any power to the Commission to do it. He has announced decisions which he cannot carry out under the Bill unless it is amended broadly on the lines of the Amendment before the Committee. I would ask him to read Sub-section (2), which we are discussing; consider the definition in Clause 17, and then proceed to consider the definition of a worker in Sub-section (2) of Clause 17, because a worker is a person who receives payment for his services. You cannot assume that every daughter or son of a lodging-house keeper has only pocket money and receives no payment. From what I know of normal sons and daughters they expect to receive proper remuneration. Therefore, they are all on a contract of service, and this Ball will bring in every private house wherever occasionally there is a paying guest."In this Act, unless the context otherwise requires, the expression 'undertaking' includes any business, whether carried on by way of trade or not."
Nothing has been said in the Debate except by the Minister about the difficulty which will arise over this proposed exception. In so far as we place outside the scope of the Bill any particular cases of catering establishment, whether family or otherwise, we are setting up two classes—one where there are no regulations and they can work any hours they like and pay any wages they like, and another where the hours, wages and conditions are strictly regulated. We must be very careful not to set up unfair competition between one section of the catering community and another. That is why it is difficult to say that establishments, merely because they are run by members of a family, should be excluded. The proposals of my right hon. Friend seem to be a reasonable way of dealing with the matter. Unless we are careful, we shall do a good deal to destroy the value of the Bill and create grievance and illwill among those engaged in different sides of the industry.
I support the Amendment. I listened to my right hon. Friend with considerable care and close interest because I believed that he was really trying to meet the point. It is a difficult one to meet. I fully sympathise with the reasons which my hon. Friend the Member for Lowestoft (Mr. Loftus) has adduced in moving the Amendment. In perticular country districts there are farms and lodging houses which will be brought within the operation of the Bill. The Commission will very likely make a recommendation in favour of a wages board in respect of lodging houses, which seems to me a reasonable category. What wilt be the position in the case of a family keeping a lodging house as its main source of livelihood with, say, one daughter? My right hon. friend said that in other Acts, of Parliament if there was no contract of service people are not included. I am not sure that will really be the case in this instance. I thought that my hon. friend the Member for The High Peak (MR. Molson) brought out a good point with regard to an implied arrangement made by the workers. There might be a daughter in a family of three who says she wants to go out and do a job, but her father persuades her to stop telling her that she will have her keep and pocket money and a share of the profits at the end of the year. That is not an unusual thing, and if all such people are to be brought in, it will create a difficult position.My right hon. Friend evidently realises this danger, but I am not sure that the registration proposal, which I understand will be brought forward in an Amendment later on, will go far enough, because it will still leave it open to the Commission to make a recommendation which would include all those persons whom we wish to exclude in the family business. We do not know who will be the members of the Commission—that is for the future to decide—and in spite of what my right hon. Friend has said we are leaving it in the hands of the Commission, subject to final conclusions by the Minister of Labour for the time being, whoever he may be, to decide whether the category recommended is to be brought in or not. Personally, I am not satisfied with what my right hon. Friend has said. I am satisfied that his intentions are good, but that is really not enough. The road to the Law Courts is paved with good intentions. My hon. and learned Friend the Solicitor-General knows how often, when lawyers are fighting out a case, they say, "The intention of Parliament was so and so," and the Judge replies, "I do not mind what was the intention of Parliament; the point is what the Act of Parliament says." I feel that my right hon. Friend does realise the difficulties and dangers and that he is going to try to meet us, and I am not in favour of pushing the Amendment too far, but I hope we shall have an opportunity later, either here in Committee or on the Report stage, to consider whether my right hon. Friend's suggestions have in fact met the point.
I want to oppose this Amendment. There is no mention of a limit to the family. A widower with a number of children may marry a widow who also has a number of children, and a score of children may be brought in to help to run a prosperous establishment in competition with another caterer who has to pay for outside labour—pay the proper rates and give the conditions laid down by the board Members of a family do not always receive fair treatment when working for the father. I have seen some of the worst exploitation done by a father in working a son or daughter almost all the hours that God sends, and all for pocket money, and I consider that members of a family have a right to the protection of this Measure.
This Amendment has received from the Committee a great deal of sympathy, but it seems to me that, whether we like it or not, in a Measure of this kind we shall be passing legislation which will divide certain sections of the community. I notice that later there is an Amendment with a different purpose from the one now before us, because it would extend the numbers coming under the Bill, and I am quite sure that when we come to that Amendment there will be opposition. It seems to me that on the whole the Minister has indicated his appreciation of the very practical difficulty here. It is true, as the hon. Member for South Croydon (Sir H. Williams) has said, that the alternative which has been suggested will mean that certain other parts of the Bill will have to be amended, for example, Clause 17 (2), which is at variance with what the Minister has suggested, but if this Amendment is withdrawn, I take it from the statement made by the Minister that there will be an undertaking to meet that point. I think that the Minister's suggestion about the compilation of a register would be found in practice to be quite a good solution, and in these circumstances I hope that my hon. Friend the Member for Lowestoft (Mr. Loftus) will not deem it necessary to press the Amendment.
I think the discussion so far has brought out the great difficulty of applying a Bill of this description to so many varied interests. I want to deal with the position of small farms and inns in rural areas which cater in a large measure for urban visitors at week-ends and other times. As the hon. Member for Sedgefield (Mr. Leslie), whose constituency is not far from mine, has said, undoubtedly there are cases in which parents treat their children as sweated labour, but I do not think that happens very often, and personally I have had no experience of it. I want to bring to the notice of the Committee one particular type of case, that of a farm of, say, 150 acres, of which there are many round about the industrial areas in North Lancashire, Westmorland and North Yorkshire, run by a farmer aided by his sons and daughters and perhaps by his daughters-in-law. I know one such instance in which the farmer and his wife are well over 70 and do practically nothing. The old lady works when she feels able to do so, the sons are working on the farm, there is one daughter at home, and one maid, a girl of 15. The daughter works all hours—does all the housework, all the cooking, and looks after the poultry. In summer they take in visitors and "do" teas for the urban population who come out into the country. It seems to me there will be a great difficulty in cases of that sort. It is not a question concerning only a small part of the population, because these places render a tremendous service to working class people who go into the country for holidays. Apparently the servant girl of 15 will have a contract of service and will be subject to all the provisions of this Bill, whereas the daughter of the house, who works about three times as hard, will not. The family I am thinking of are a family who are on a pocket-money basis. All of them are over the age of 25 and they have never thought of having a regular wage. If they want to go to town they say to the old man "I want ten bob," and he grumbles a bit and then "forks it out." It is a human problem. We cannot regulate establishments of that kind in this way. I do not think that if I had moved the Amendment I should press it very far, but I do ask the Minister to consider cases of the kind I have indicated. It seems to me that at the very best ill-feeling will be created by this Measure, and that unless some Amendment of this description is accepted to meet the case of small farms and public houses the scheme will prove to be utterly unworkable.
I want to support the Amendment. It is an admirable one, and I think the mover has stated very clearly the reasons why it should be accepted. Nothing which has fallen from the Minister seems to have dealt with the point. I agree with the mover in what he said about the value of small industries to this country's future. I am a great believer in small industry I believe it to be the life-blood of private enterprise. [Laughter.] When hon. Members above the Gangway laugh, do they really believe that private enterprise springs into life fully organised, at a single bound, from some superman? Of course it does not. It arises from hard work, ingenuity and toil, and it is exactly this type of enterprise which has spread and grown until it has given us some of the biggest businesses in the country. I support on principle the idea that people who are in this category should not be regulated out of existence by this Measure. After listening to what the Minister has said on this point, I am bound to tell him that as I have read the Bill I cannot agree with him. He has the learned Solicitor-General sitting by him, but I must direct his attention to Clause 17 (2), which is an interpretation Clause. It will be noticed that Clause 1 applies to all persons who are employed in an undertaking whether carried on wholly or mainly for profit. There we get the profit motive rearing its ugly head again in the regulated paradise which we are to enjoy. When we look at the interpretation Clause to see how a worker is denned, we find nothing about a contract of service at all. That is a point which was made by the hon. Member for The High Peak (Mr. Molson). The Minister may intend that persons who have contracts of service shall be brought within the Measure and those who have not contracts shall not come within, but that is not what the Bill says. Do I understand him now to give an undertaking to amend Clause 17 (2) so as to bring about what he would like to see done? He shakes his head. Therefore, I should like to point out what Clause 17 (2) says:
not contract—"Any worker who, for the purposes of any undertaking or part of an undertaking, performs any work in pursuance of an arrangement"—
That Sub-section is of the very widest character. It does not require that one should carry on the business for profit or that there should be a contract. All it requires is that there should be an implied arrangement, and any court would decide that it was an implied arrangement if a person was performing work. In those circumstances I do not see how the Minister has met this point, and I cannot see how registration will meet it, because that would only be putting off the evil day. That is only asking somebody else to decide who is to be put on the register. We ought to settle the question now. It is not a difficult question. The words proposed are not improper. I think there is an old legal axiom which says, De minimis non curat lex, and this is a small matter. The category concerned is probably very limited, and even if it were unlimited, I think it is right that this Amendment should be inserted."expressed or implied made by the worker by way of trade with the persons carrying on that undertaking shall be deemed to be employed by them."
I hesitate to intervene on this very intricate legal issue, but I have had some little experience in another sphere of what is meant by an employed person. This Committee will not be able to decide this matter in the way suggested by the hon. Member who has just spoken. I am speaking of national health insurance, where a person is not normally insurable for health and pensions purposes unless he is an employed person under a contract of service. I take it that that will apply to this Bill when it becomes an Act.
The Minister says not.
Wait a minute. In deciding whether a relative is an employed person State Departments will not usually allow a daughter or a son remaining at home and working in the family to be regarded as an employed person under a contract of service for the purposes of these schemes. That is my experience. I wish to support the Minister against this Amendment upon another ground. From the speeches made by hon. Members one could imagine that the cases which will arise under this Clause will run into thousands, but experience of the social services shows that it is only very occasionally when a person is aggrieved because he thinks he is being put outside the insurance schemes, that cases arise for decision at all. Let me give one case of a family where it can arise. I take it that the person in this case would be an employed person under a contract of service.
Surely there is a great distinction between the position described by the hon. Member and that which arises under the Bill, because everybody is included by the Bill, unless they have contracted out of it.
I do not think there is any difference there at all. Every employed person is insured under the present schemes, but in determining who is an employed person under this Bill the Minister will have to decide very much as is done under our social services.
Will the hon. Gentleman read the definition in Clause 17 (2). It is quite clear that such a person will be within this Act.
Let me pursue the point, if I may because the House of Commons is often faced with intricate problems of this kind when it comes up against these personal service occupations; it takes us entirely out of the field of legislation covering coal-mining, railways, factories, and so on. There are special difficulties here. Where, for instance, a son is employed by his father, but does not live with him, being a married man with a family, and is paid a wage, that son would, as I understand the matter, be an employed person under a contract of service, and a case would lie against the father if he did not submit to the law. I repeat that it does not matter what discussions we have in this Committee today; the courts will have to decide in the end whether a person is an employed person under a contract of service. Finally, may I say that I have been very interested in the discussion of this Amendment? It reminds me of the piping leisurely times of peace when we discussed subjects like this at random. If the Committee do not mind my saying so, I enjoyed in years past doing exactly what is being done to-day by opponents of this Bill.
It might be convenient, as the question of the construction of the definition has arisen, and one or two of my hon. Friends have personally invited me to deal with it, if I put to the Committee the interpretation which, I submit, is the only one which can be drawn from Clause 17 (2). It is a clear interpretation, and therefore a proper one that the Committee should send forward for the working of the Bill, in the unhappy necessity of further consideration by the courts. I would first ask the attention of the Com- mittee to Clause 17 (2). I think hon. Members will agree with me that it lays down the following requirements for a worker to be included in the Bill: First, there has to be a worker. Secondly, the worker has to make an arrangement by way of trade. Thirdly—and this is a point which I would ask my hon. Friend the Member for the High Peak (Mr. Molson) to consider, because I think it meets his difficulty, as I am very anxious to do—the worker must make that arrangement by way of trade with the persons who are carrying on the undertaking. Fourthly, he must work in pursuance of the undertaking. Fifthly, his work must be performed for the purposes of the undertaking. I do not think there can be any dispute about this matter. Those are the clear essentials which are connoted and denoted by the definition which we have put in.
What is "making an arrangement by way of trade"?
I am very much obliged to my hon. and gallant Friend for asking that question. It is an arrangement expressed or implied by way of trade. It is to deal with the position where you have, not an express offer of contract of service in words, saying, "You will be employed by me at £3 a week to do certain work," and that is either put into writing or put clearly in words between the parties. That may not take place. You may not have that weekly wage fixed. I think my hon. and gallant Friend the Member for Penryn and Falmouth (Major Petherick) suggested the case where there would be a division of profits at the end of the year. In my view that would clearly be an arrangement by way of trade, but there must be some region of thought as to what is an arrangement by way of trade. No one on earth could give a completely inclusive definition of what is an arrangement by way of trade. It is impossible to say how many grains constitute a heap, but it is easy to pick out a heap when you see it. So it is easy to pick out an arrangement which contains that element of trade in it which complies with these words.
Will the Solicitor-General tell me how it is to be found out whether a person definitely is or is not sharing in the profits?
I think my right hon. Friend will agree with me upon reflection. He has no doubt given due consideration as to how the Bill is to work. I gather that he objects to that working. First of all, the Commission has to make certain recommendations and then may recommend a wages board. That wages board will operate with certain people.
Who is going to find out about the individual case?
There is first of all the question that the Commission, when making the recommendation to the wages board and the wages board when performing its duty, are bound to envisage those whom their task concerns. When we come on to the question of enforcing the penal sanctions, it will be open to anyone against whom a penal sanction is put in force to say, "I am not within the Act at all," and then you will get the court's decision upon the matter.
Why should people be put in peril because we are incapable of producing the right words?
That is just the difference between my hon. and gallant Friend and myself. I say that we are not incapable of producing the words. I say that we have produced words which are perfectly clear, and are just as clear as words which have worked with considerable success in different Acts concerned with industrial legislation. Whenever any Act has had to be passed you have had to come to your definitions. I agree that we have improved the definitions in some cases, but, looking at it by and large, over our industrial legislation since the Workmen's Compensation Act, 1906—and I have had to consider very seriously every one of these decisions in my time—I say that those definitions have worked, and that this is a clear definition. It will work. "Arrangement by way of trade is a clear and happy way of dealing with the situation and subject matter with which the Bill is concerned. As to the difficult borderline cases, referred to by my hon. and gallant Friend the Member for Cleveland (Commander Bower), although I am prepared to argue quite strenuously as to the propriety of the definition, I do not want him to consider, from the strenuousness of my argument on that point, that we are lacking in sympathy on the point which he put to the House.
Does not the Solicitor-General agree that the definition is so drawn that it would cover both the independent contractor and those who work gratuitously?
It will be rather convenient to come back to this point. I want to continue to deal with the point which I think the Committee is very anxious should be met. I hope my hon. Friend who has just intervened will not consider it discourteous if I defer my reply to him for a moment. I was saying that the definition does not stop at the question of the arrangement. It goes on to say that the arrangement must be made with the persons who are carrying on the undertaking. "The undertaking" includes a business. We come back to Clause 1 (2) and if the undertaking is brought within the Bill it must consist
I followed my hon. Friend closely, but I do not think his example can possibly be held to come within the words "wholly or mainly." Again, I say, and this is a point I want to make to the Committee, that "wholly or mainly" is a good, sound, common-sense definition which can provide a criterion for solving the problem in front of us. My hon. Friend who has just intervened spoke of the independent contractor and the gratuitous worker. With regard to the independent contractor, I do not see how he comes into the picture. I want to make it clear that when you have an independent contractor who maintains the control of his own work, because that is the legal test and I presume it is the test which my hon. Friend has in mind, but when, as a matter of fact, the contractor is continually and consistently employed in one of the activities covered by the Bill, I take no shame for his inclusion, because we are trying to get in people who are continuously and consistently concerned with catering. I do not resile from that at all. With regard to the voluntary worker, the position is clear. If the voluntary worker gets a return, if the term "voluntary worker" is a mere facade for someone who is in trade and is in fact engaged in this occupation, again I do not resile. I am glad that voluntary worker should be included. On the other hand, if it is a case of someone who is doing only casual work on a casual basis at very odd times, he will fall outside the words "arrangement by way of trade" and also outside the words which lay down the necessity that the work is performed for the purpose of the undertaking."wholly or mainly in the carrying on of one of the following activities."
I may have misunderstood my right hon. Friend the Minister of Labour but I understood him to say that the Bill would only apply to people employed under a contract of service.
That is quite a fair point which my hon. Friend makes, and my right hon. Friend, in referring to contract of service was referring to the words "arrangement by way of trade," and I have explained that they do apply. If the hon. Baronet will look at the Bill, he will see quite clearly that they are framed in that way. The words are:
My right hon. Friend had not in mind at the moment, as was perfectly clear from the context of his words, that there was a contract of service which expressly gave that control over the method of working which service in its legal sense connotes. He was making quite clear that in order to come within this Bill there must be a trade arrangement in the sense of the words of the Clause, and I am endeavouring to make clear what that means. I suggest to the Committee that while it is wholly admirable that we should make and send out clear definitions—and I shall always be of any service I can be to the Committee to further this point—on the other hand, I submit quitely clearly that having, I think, examined every definition in every individual Act passed since 1906, we have done it in this case, that this is a clear definition, and that we have removed ambiguity and doubt as far as all reasonable men are concerned."…an arrangement expressed or implied made by the worker by way of trade…."
I should say that the whole Committee will be grateful to the Solicitor-General for the very reasoned way in which he put the case. I am bound to say, however, that it did not serve to remove my doubts about the Bill in its present form. When I listened to the Minister of Labour he went some way to reassuring me that the number of people concerned who were also members of the family were strictly limited under some contract of service. I may have got it wrong, but that was the impression I had. Now my hon. and learned Friend gets up and puts what I conceive to be a perfectly true impression of Clause 17 (2), which embraces people under all sorts of associations, ranging from a contract of service such as a partnership to any loose friendly arrangement which one might expect to find in any family. The point occurs to me as to how these things are to be found out and tested and adjudged, because these are the matters which this House should give its mind to. Are we going to have a situation where officials can go into families between mother and daughter or between two sisters and look into the rather small arrangements they have of their own, but which are really entirely their own affair and should not be the subject of interference by outside bodies? This is a situation which I am anxious to avoid.The Bill as it now stands undoubtedly does include many members of the family, and one has got to consider whether it is wise to include them and whether it is practicable to include them. I have heard a number of remarks made on this matter dealing with the larger question of State control and private enterprise. I will not enter into that point. The point is much narrower, but I would say for my own part that if one is to stop State control at any point, it is at the point where is seeks to affect people in their own homes. I think that on that there will be a large measure of agreement. It is said that there may be some undue preference because of this distinction in favour of the family. I was sorry to see the hon. Member for East Wolverhampton (Mr. Mander), who I thought was becoming quite a good Conservative, lending some support to that view. Surely it is an astonishing proposition. Here we are saying that we need larger families; we go down to our constituencies, Members from all sides of the House, and say that we stand for the small man, the common man; and now that we have an opportunity of giving a little family business a leg up, perhaps a temporary advantage, over his big rival it is suggested that we should step in. To me it is an astonishing proposition. I come to the point of whether it is practicable, which is very material. If we bring these people in, can we, in fact, enforce the thing we are trying to do? In the Army there is quite a good rule that you should never give an order unless you can see that it is carried out. It is no use passing laws which will be more honoured in the breach than in the observance. I cannot conceive any method whereby legislation of this kind can be enforced in practice. There is no body of officials who could ever find out the small arrangements that go on inside the family. For these reasons—and I have supported this Bill throughout in principle—I feel that my right hon. Friend is taking upon himself and putting on the Commission an intolerable burden. It is my desire to assist him in this matter, and I would ask him to make a rather greater concession to the spirit of this Amendment than he has yet done.
I have listened to the Debate since it began, and naturally this Amendment attracted my attention more than any other. I also want to defend the individual and the family from unnecessary State interference. The State will interfere with everybody—that is inevitable—but as long as human beings are behaving in a normal manner and the human family is conforming to the ordinary decencies and canons of social wellbeing, I defy the State to interfere with those people merely by some action of this House. I was rather surprised that the hon. and gallant Member for East Nottingham (Major Gluckstein) got up and intervened in the Debate, for the reason that if I was identified with a great undertaking in this country such as you are——
I must ask the hon. Member to address the Chair, and not to refer to hon. Members as "you."
Perhaps I should have said that a certain Member of the House intervened and lauded the small man as being——
May I ask the hon. Member whether he believes that that undertaking commenced at its present size? Let me tell him it commenced as a very small family business, like those we are now talking about.
I want to say in passing that these large developments tend to exclude the competition of smaller men when they see them rising above the ground later on. I want to deal with the point before the Committee at the moment. I listened to the Minister's reply to the discussion, and I want to appeal to the Committee. Often I have argued in this House, as many other hon. Members have done, with Ministers to make concessions, and I have always been in a minority and accustomed to receiving the hard word from that bench and getting no concession at all. But I must say that to-day the Minister was more than liberal in the concession he made in his powers. It is all very well to say, "But your promises are not translatable into the Clauses of the Bill." I have never yet known a Minister who, on the spur of the moment, could rise and give word for word the appropriate Clause which would give effect to a promise he had given.I can assure every Member of this House that I am as jealous of the rights of the individual against the State as any man in this House. I do not think anyone could doubt that, and I would support anything in this Bill that will protect the family from the encroachment of the bureaucrat. It is with that faith just as strong as in any other Member who has taken part in this discussion that I am appealing to the Committee to accept the Minister's statement. What was his statement when he rose to-day? He specifically said that this Bill, so far as he was concerned, would not invade the private home. Those were his words. It is extremely difficult in those circumstances suddenly to draw words that will bar court action, and make clear and specific in a Bill within a few moments the intention the Committee desires to be expressed in the Bill. I do not wish to closure the Debate, but I am appealing to those who are asking for this Amendment—and I am as keen about it as they are—to recognise the advance the Minister has made to-day and to accept the situation now before us. I am doing so in all fairness, because let me repeat that I also will defend with any Member of this House the right of the individual against encroachments of the State. It would have been unfair to remain quiet and not to have intervened on behalf of what the Minister has done, and I appeal to the Committee to carry this matter to a conclusion now.
I do not want to intervene at length. I believe that everybody will agree with what was said by the hon. Member for Burslem (Mr. MacLaren). We would accept the words of the Minister—I would do so myself—but the important thing is that in arbitration or cases of law the courts will not accept the words of the Minister, but only what is in the Bill, and that is the only reason why——
But the Minister did say he would make consequential Amendments?
What did the Minister say? I would appeal to the Minister.
If the Minister did say—and I did not hear him—that on subsequent procedure of this Bill he would introduce the words, I am perfectly willing to leave the matter until those words are inserted, but we must have this in the Bill. That is my answer.
I did not say that I would introduce words dealing with this particular point. What I did say was that, on the private houses point, I was willing to accept a properly-worded Amendment for the establishment of a register after the Commission's inquiry into the scope, in order to protect the public from any fear that the inspectorate would go beyond what was their duty to ascertain which undertakings came within the proper legal scope. This goes much further than the present Trade Boards Act. That Act would leave this matter in the hands of the Minister, to draw up a list which nobody could challenge—an arbitrary list, which is entirely in his hands. [An HON. MEMBER: "After inquiry?"] No. Please allow me to go on. When the wages order is made—and that is when this point arises, not before—under the Trade Boards Act, the Minister draws up a list, which is unchallengeable, and those whom he puts on the list are the people to whom it is assumed that Trade Board Order applies. I am stating the facts; I have to administer it. I realised that there was some criticism of this Bill, and I have not waited for the House. Many changes have been made in this Bill, before it was presented to the House and subsequently. Therefore, when I saw the fears expressed in the Amendments put down by the hon. Member for Doncaster (Mr. E. Walkden) and certain other hon. Members—four or five Amendments—I thought that that was a reasonable point on which to remove fears.There is another Amendment which I am willing to accept, because I want to remove the idea that there is any intention on the part of the Government of undue bureaucratic action. We are not going to have that. We want this trade regulated, like other trades. We want to do it fairly. I am also prepared, in view of the ramifications of this discussion—perhaps an indication will help the Committee—to accept an Amendment which makes it obligatory upon me to present the Commission's report to Parliament. That also is something which does not apply under any other industrial legislation. I suggest to hon. Members who are asking me to take these words into the Bill and then to proceed to build the regulation or conditions upon them, that in that way we might do the very injustice which they are seeking to avoid. I am convinced that with an impartial Commission taking evidence on this basis of scope, hearing the people's claims one against the other and determining the scope, there will be less likelihood of hardship or wrong being done than if this House, even on the footing, if I may say so with respect, of the discussion which went on between my right hon. and learned Friend and my hon. and learned Friend opposite, tried to settle this matter on the basis of technical language. In that way you are more likely to do injustice than you would be by the application of common sense by an impartial tribunal.
If we are to discuss at very great length the width of this Clause, I would ask hon. Members to remember that sometimes in discussing the Motion "That the Clause stand part" they have a fairly wide range. As for the suggestion of the right hon. Gentleman regarding a later Amendment which is, I think, in respect of Clause 2, page 2, line 17, I would point out that if that is to be referred to in this discussion, I do not think there should be a long discussion on that Amendment when we reach it.
I listened to both speeches of the Minister with sympathy and with every desire to come to an accommoda- tion. I realise that he wishes to meet the fears which some of us have, but I am bound to say that, while the concessions which he has offered are excellent in spirit, their material content does not meet the point. Even with those concessions, the fact remains that inspectors can go into a home and ask a daughter what she has received, directly or indirectly, I wish I could withdraw the Amendment, but sooner or later we must take a stand somewhere to defend the family against the State.
The Minister of Labour has clarified his attitude to some extent, but the fact remains that there is no exclusion of private houses from the Bill. The Minister stated in his principal speech—and I was glad to hear it—that he did not intend to apply the provisions of the Bill to private houses. In that respect he is acting in accordance with the precedent created by his predecessor 10 or 12 years ago. In the Colefax Report, at the end there is to be found a Memorandum by the Ministry of Labour. On page 32, under "Notes on the Draft Definition of the Catering Trade," there appear these words:
I am glad that my right hon. Friend has made his intention clear with regard to private houses, but he has said nothing about members' clubs. As it was considered desirable at that time, in 1930, to make clear the position of members' clubs, it is equally desirable that my right hon. Friend should clear up that important point to-day. Although I welcome very much the expression of my right hon. Friend's intention—and I am sure everyone will accept that as a real intention—to exclude private houses from the Bill, we should none the less like to see it in the terms of the Bill. I say that without the slightest disrespect to my right hon. Friend. If this was purely a war measure, no doubt we could accept as quite satisfactory the undertaking that by administrative action private houses would be excluded. But this is a permanent Bill. Therefore, we are entitled to ask that in the definition there shall clearly be excluded any application to private houses. I support the Amendment moved by my hon. Friend the Member for Lowestoft (Mr. Loftus), largely on practical grounds. It would be a farce to try to apply the provisions of this Bill to the members of the family of the proprietor. It would really afford them no protection whatever, because surely in a family the only protection is mutual good will and the spirit of give and take. If that is not present I believe that no Act of Parliament can give much assistance. It would be absurd to require a family to keep records of their comings and goings. How can they say what part of their activities relate to their private life and what part to their business undertakings? It would be most objectionable if we had investigators from the Ministry of Labour poking their noses into private homes. My hon. Friend above the Gangway suggested that it would be a valuable thing to have the possibility of such intrusion because it might possibly prevent something wrong. I suggest that in no case would this be of the slightest value, and that in all cases it would be highly objectionable. There is always a tendency on the part of the Government, in these times especially, and probably in all times, to try in legislation to unload on to some other body the knottier points for decision. Our duty is to try to deal with knotty and difficult problems. It is not right for us to say cheerfully, "We can leave that to the Commission." It may appear at first sight that many of these points are points of detail, but there are so many points of detail, and when one gets an aggregation of a great number of points of detail it may well be that the practicability or otherwise of the solution of those points will determine whether the Measure as a whole is workable or not. If we are going during the passage of this Bill to shelve on to the Commission any point which we find to be very difficult of solution, we are going to pass into law a Bill which may prove entirely unworkable."Neither a private house nor a members' club is regard as an undertaking."
Did the hon. Member recognise this principle about the private home when he supported the means test in this House?
The hon. Gentleman is getting very wide and very nearly on to a Second Reading speech, and I think the interruption was tending to take him even a little wider, on that part of the discussion, anyhow.
I can assure you, Mr. Williams, I have no intention of pursuing the interruption, but, with great respect, I will endeavour to narrow rather than widen what I have to say. This is a characteristic example of a tendency to leave difficult points to a Commission. That is one reason why I support the Amendment. The whole substance of the provision in these terms is so loosely defined that we really do not know what we have been talking about.
The hon. Member has never said a truer word.
I am interested to know that hon. Members above the Gangway find themselves in exactly the same position as I do. Unless the Government are prepared to define these terms clearly, I do not think that any of us are to blame if we admit that we do not know exactly what we are discussing. Therefore, I support the Amendment, and I hope very much that my hon. Friend will carry it to a Division.
Hon. Members shout "Divide."
Should I be in Order, Mr. Williams, in moving "That the Question be now put"?
Hon. Members who shout "Divide" do not seem to recognise that this Bill applies to Scotland, and I do not think that one Scottish Member has intervened on this Amendment. In my constituency there are a large number of small families taking in lodgers throughout the summer, and they are very much interested in, and affected by, this Bill, and I hope that there will be some Amendment of it, and that is what I am going to try to do. We do not want a bureaucracy at all, but if are to have a bureaucracy in Scotland, we do not want that bureaucracy to be dominated from London. There has been far too great a tendency recently for the bureaucracy in London to extend their tentacles to Scottish legislation. It is recognised in every part of Scotland that this tendency should be stopped as far as possible, I should like to see Scotland excluded from the scope of the Bill altogether and no interference with the lives of private citizens. I shall go into the Lobby in support of the Amendment.
Before we proceed to a Vote I would like to say that while I was attending our local catering establishment, the Solicitor-General in his speech, in part at least, supported the point of view that I endeavoured to put earlier.
I do not think so.
I am only judging by what was told to me by those who heard him. They took the view that he placed on this Clause and the definition Clause the same view that I took on the interpretation of "wholly or mainly," which are the vital words. If a person has a private house in which he carries on some kind of trade and does not carry on any other trade in that house, clearly that becomes "wholly or mainly," because the rest of it is his private existence in that house.
I do not think that that is a fundamental distinction, and it is a matter of the construction of these words. I disagree profoundly and respectfully with my hon. Friend the Member for South Croydon (Sir H. Williams). As I understand the position, if you have the owner of a private house taking in an occasional lodger for a week or two at a time, then, although that is, as my hon. Friend has said, the only thing by way of business that may be done, that does not make the house an undertaking which consists "wholly or mainly" in the activity of "the supply of food or drink." Perhaps my hon. Friend will give me his attention because this is the point between us. I said that you must look at everything that is done in the private house over the year. You must look at the fact that the people are living there and carrying on their own existence, and that must be balanced against the fact that they take in an occasional lodger. That is one end of the scale. At the other end of the scale there is a clear difference where lodgers are taken in all the year round and a house exists for the purpose of taking in lodgers, and is a lodging house or undertaking. I can only give my hon. Friend my sincere view of what the Bill means, and that is the meaning I attach to it and which, I firmly believe, the courts would attach and be led to consider.
Naturally everyone pays the utmost attention to any views on interpretation by the Law Officers of the Crown. In every proceeding before the High Court both sides have eminent lawyers, and one lawyer is always wrong. I presume that nobody goes to law in a case unless he is advised by counsel that he has a good case. There are two parties, and one lawyer has given bad advice. That sometimes happens in regard to the Law Officers of the Crown when they proceed through all of the stages, especially, in Inland Revenue cases, though not always in the higher court but in the court below. Nevertheless, I am told that this is the best advice that His Majesty's Government have to give. If my right hon. and learned Friend will give me an assurance that when the Chancellor of the Exchequer sends his myrmidons—
What does that mean?
I will tell the hon. Member. It means His Majesty's Inspectors of Taxes—
Whereupon, the GENTLEMAN USHER OF THE BLACK ROD being come with a Message, The CHAIRMAN left the Chair.
Mr. SPEAKER resumed the Chair.