Vol. 61 No. 6
Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that I have ruled that amendment No. 55 in the names of Senators Murphy and Davidson is out of order as it involves a charge on State funds.
The Senators have been notified accordingly.
SECTION I.
The Chair suggests that amendments Nos. 1 and 2 be taken together.
I move amendment No. 1:
In subsection (1), page 3, lines 36 and 37, to delete "accident" and substitute "injury".
This is an amendment of subsection (1) of section I. I should like to say, before I start, that if the Minister can be persuaded to accept the principle involved in this amendment cognate amendments would require to be made throughout the Bill. The aim of the Bill is to compensate workers for injuries arising from or in the course of employment. The introduction of the word "accident", to my mind, is needless. There could be an accident in which no one would be injured and there would be no question of compensation. "Injury" or "injuries" seem to be the important words. The case was made by the Minister in the Dáil that difficulties could arise where diseases were involved and the possibility of a claim to secure compensation on the ground that such a disease arose from the occupation while, in fact, it was contracted otherwise. I do not think there is much in this case as medical and other experts would examine the circumstances of each case. Anyway I cannot see how the word "accident" rather than "injury" would help to sort the matter out. The word "accident" has no significance in this context. According to the title of the Bill the measure deals with compensation for "injuries" not "accident". It is, therefore, an error to highlight the word "accident". I think it should be taken out of the Bill; its inclusion merely invites law cases. If the inclusion of the word is considered to be of importance, then I think the title of the Bill should be Social Welfare (Occupational Accidents) Bill, not Social Welfare (Occupational Injuries) Bill.
We had this amendment in the Dáil and I pointed out that this was a matter which had been considered by the Commission. Both the majority and the minority of the Commission recommended that the position in this respect be left as it was, with certain modifications of the term—"arising out of and in the course of employment". All these modifications, including those recommended only by the minority of the Commission, are incorporated in section 4 of the Bill. As a result of that, all the difficulties anticipated will be fairly well covered.
With regard to the suggestion that the word "accident" be omitted, provision is made in subsection (1) of section 23 of the Bill that insurance under the scheme will, in addition to covering accidents, cover any prescribed disease and any prescribed personal injury not caused by accident, provided that the disease or injury is due to the nature of the employment and it developed on or after the appointed day. So it is quite clear that an injury which is due to the nature of the employment is, in fact, covered. Therefore, there is no great case for eliminating the word "accident". The principal danger is in the case of diseases. There are certain diseases a person is liable to contract under any circumstances and, where a disease is not an accident, it must be capable of being prescribed in accordance with the principles set out in the Bill in section 23 subsection (2). If we eliminated the word "accident" this could well mean that all diseases, irrespective of whether or not they can be satisfactorily ascribed to the employment, could be made the subject of claims for benefit. I cannot agree to eliminate the words "by accident".
I have a great deal of sympathy with Senator Miss Davidson's amendment. Under the existing Act, the 1934 Act, we have compensation payable in respect of injury arising out of an accident but it is in respect of personal injury by accident. That is what we are compensating for. What Senator Miss Davidson is arguing for is that in addition to personal injury by accident there is also personal injury by disease, and, therefore, what should be in this Bill is compensation for personal injury arising out of or in the course of the employment. It does not matter whether the injury occurs by accident. or whether it is due to an industrial disease which arises out of a particular employment, or due to the nature of the work in which the person is engaged. If the person suffers an injury it is the incapacity resulting from that injury which is the subject matter of this Bill. I think that as a non-lawyer Senator Miss Davidson has got the hang of the existing workmen's compensation code very well. The Minister should have a look at this again.
Section 23 need not be disturbed because it could be worked into the definition. It could be included in such diseases and injuries as are dealt with under section 23. I think the drafting would be better if the amendment were accepted.
The Minister says that if the word "accident" were taken out all kinds of diseases could be brought in, but surely the diseases that will be covered will be scheduled. Surely the medical people and other experts will be able to say: "This man's employment exposes him to the risk of a particular disease."
Is it not true that under section 8 (1) what is being compensated is the person who suffers a personal injury?
A personal injury by accident.
It does not matter how the injury arose.
The subsection says:
...an insured person who suffers personal injury caused on or after the appointed day by accident arising out of and in the course of his employment...
What we are really concerned with is the claimant who suffers an injury in employment. It seems to me that that is what we are setting out to compensate. We are providing in section 8 (1):
Subject to the provisions of the Acts, an injured person who suffers personal injury...
It does not matter how the injury arises, if it arises out of and in the course of his employment, whether it was due to the employment or to one of the prescribed diseases under section 23. It seems to me that the draftsman has misconceived the situation. What the claimant is claiming occupational injuries benefit for is in respect of an injury which he has sustained. I think the Minister might have a look at it again to see whether Senator Miss Davidson's amendment is not more in line with his own philosophy.
The injury has to arise from an accident in the course of the employment and it is obviously necessary to have that included.
It does not have to arise out of an accident. If it is an industrial disease it does not arise out of an accident.
The diseases are covered in section 23.
That is so, but the title of the Bill is the Social Welfare (Occupational Injuries) Bill, and if it is to be of any assistance as an occupational injuries Bill we are compensating people for injury. Whether it arises by accident or by the nature of the employment, or whether it is some other personal injury which the Minister is going to prescribe is not of great consequence. How the injury arises is not of great consequence. What we are seeking to provide is compensation for injury and the mode in which the injury arises is of less importance than the fact that the claimant is defined as the person who has suffered an injury. It is a great deal more logical to have the word "injury" instead of the word "accident". The Minister might have a look at it again.
I looked into it very closely when the Bill was before the Dáil, and I am quite satisfied that it is necessary to have the word "accident" there. The word "claimant" is defined as—
...a person claiming occupational injuries benefit and also includes an applicant for a declaration that an accident was or was not an occupational accident, and reference to a claim shall be construed accordingly.
A person can apply for a declaration that an accident was an occupational accident.
The Bill covers lots of things that are not strictly accidents. Many people—some of them quite heroically—take jobs in which they know there are risks of injury. They are fully aware of this, but they know that someone must do these jobs and they take them. They are fully aware that they are likely to suffer certain injuries yet they take these jobs. If they suffer an injury it is an injury and not an accident.
The thing is that in the case of a disease where the disease is not an accident it must be capable of being prescribed in accordance with the Bill. Outside the diseases that are prescribed, diseases can be incurred as a result of accidents arising out of the employment. If the word "accident" is not in it would be possible for any disease contracted by a worker to be the subject of a claim.
Would the Minister not think that the word "accident" is rather dangerous? Accidents might occur in which no one would be hurt, strictly speaking, but they might be upset. If you leave in the word "accident" a person might be entitled to compensation for shock to the system.
That could happen. That would not be ruled out.
It could be a passing shock. I think we would be on safer ground if we compensated for "injuries."
Compensation will only be paid for the injury. It will not be paid for the accident. It will be paid for the injury as assessed. There would have to be an injury which can be assessed.
I understand that but it is not in the Bill.
The Chair suggests that amendments Nos. 3, 4 and 58 may be discussed together.
I move amendment No. 3:
In page 5 to add to the section the following new subsections:—
"(9) Any claim for benefit and any question arising in connection with a claim for or award of benefit under this Act shall be determined in accordance with the provisions of this section by a deciding officer, a local appeal tribunal or the Occupational Injuries Commissioner.
(10) A local appeal tribunal shall consist of one or more members chosen to represent employers with an equal number of members chosen to represent insured persons, and an appeals officer (who shall be chairman of the tribunal) appointed by the Minister.
(11) The Occupational Injuries Commissioner shall be a barrister or advocate of not less than 10 years standing or a judge of the Circuit Court.
(12) Regulations may make provision that in such cases, as may be prescribed, one or more medical practitioners shall sit with the tribunal either as additional members or as assessors and for the appointment by the Minister of medical practitioners to act for this purpose.
(13) Panels of persons chosen to represent employers and insured persons respectively shall be constituted by the Minister for such areas as the Minister thinks fit and the members of the local appeal tribunal to be chosen to represent employers and insured persons shall be selected from those panels in the prescribed manner.
(14) Regulations may provide—
(a) for authorising an appeal tribunal consisting of two or more members to proceed with any case, with the consent of the claimant, in the absence of any member;
(b) for prescribing the procedure to be followed, the form of any document required, or the evidence to be required in connection with the consideration of claims and questions.
(15) Where a claimant or beneficiary is dissatisfied with a deciding officer's decision he may appeal to a local appeal tribunal.
(16) An appeal shall lie to the Occupational Injuries Commission at the instance of a trade union of which the claimant or beneficiary was a member at the time of the relevant accident.
(17) Save as is provided under this section claims shall be decided in the manner prescribed under the Social Welfare Acts."
The main point about this amendment is that we should like to see an appeals tribunal in this Bill such as exists in Northern Ireland. We are of the opinion that it would be much fairer if the case could be brought before a tribunal, such as is set out in the amendment, rather than that it should be left to one individual to make a decision.
There is an amendment standing in the name of Senator FitzGerald and myself. I am glad to see that the Labour Party Senators are in favour of some kind of tribunal because that gets away from any taunts that might be made against myself and my Party advocating that there should be an independent tribunal which will hear appeals from the decision of deciding officers. The social welfare code provides for the appointment of deciding officers by the Minister and then for the appointment of appeals officers. Immediately you have the kind of situation where you have people who are appointed by the Minister, paid by the Minister, whose promotion is determined by the Minister those people cannot be said to possess that degree of independence which ought to exist where the livelihood and welfare of a workman, his children and dependants are at stake.
That is a very important principle. You cannot have that degree of independence having regard to the section as it stands at the moment. Very often there is permanent and total incapacity. The deciding officer is a grandiose title for masking the rank of the particular officer whose basic grade in the civil service is a clerical officer. He may be now the defunct or quasi-defunct grade of minor staff officer, grade III. We had this from the Minister in reply to a Parliamentary question.
Those people have no legal training. Moreover they do not possess that experience in life which enables them to assess properly the merits of a claim made by an injured workman. We provide for an appeals officer in this Bill which is linked to the Social Welfare Act of 1952 and the appeals officer can be a person of high standing, an Assistant Principal or Principal Officer. That person has been for a long time in the atmosphere of the Civil Service. He may be a highly intelligent and highly capable Assistant Principal Officer but he has been associated in a very intimate way with the Civil Service. We all know that there are some things which can be excellently dealt with by such people and they are without parallel in their capacity in such jobs but they are not adapted to other functions.
We had the experience of an appeals officer under the existing social welfare code who did not know the fundamentals of natural justice. When I say that I do not say anything that is not to be read in the Irish Reports. We had a case of an appeals officer under the Social Welfare Act who so misconceived his position as a statutory officer under the Social Welfare Acts as to think that, when a Minister for Finance wrote a letter designating the status of a particular officer as to whether or not the officer was within the first part of the First Schedule under the Social Welfare Act, 1952, he was bound by that. The Supreme Court laid down under very clear judgment the functions of appeals officers as people who get their authority, not from the Minister but direct from the statute.
I know a recent case in which, notwithstanding that judgment, the appeals officer acted in contravention of all the principles of natural justice as we know them. Natural justice means no more or no less than giving a fair hearing to both sides. Therefore, you must have some kind of wider perspective than is to be obtained within the limits of a particular occupation. Experience has shown that that wider perspective in relation to matters of this kind is to be got from people who have experience in assessing character. They are able to decide what is fair and just.
I want to make it quite clear that this is the kind of argument the Minister will use against those people who are advocating the rights of the workers. I want to make it quite clear that I have no personal interest whatever in the way in which the appeals tribunal machinery is availed of. I would be quite happy to see that the appeal would be conducted before a tribunal by the workman himself. If he does not want to do so, or feels unable to speak on behalf of himself, he can get a trade official from his union to speak on his behalf. The only thing I want to make sure of is that the final appeal will be to a tribunal which will be quite independent. Senator Miss Davidson and Senator Murphy suggest the appointment of an Occupational Injuries Commissioner and that that person should be a barrister, an advocate or a judge of the Circuit Court.
On the other hand, in the amendment, we propose that the appeal tribunal shall consist of some judge who will be available, either of the Circuit Court or High Court, with two other members, one to be nominated by the Irish Congress of Trade Unions and another by the employers interested, the latter to be drawn from a panel nominated by such body of employers as the Minister shall select. I do not think there could be a more impartial tribunal. It will not create jobs for lawyers. It will probably mean a great deal of trouble for trade union officials but I do not mind burdening them in that respect in the interests of the workmen whose appeals will come up.
The Minister and the House should remember that there will be cases where it will be quite clear whether a man is entitled to compensation but there will be others which will be difficult and borderline. In that kind of case, it is the merest justice to the workman that he should have a right to have his case determined by a tribunal over which a judicial person presides, as it is his right, if he is knocked down on the road and breaks his collarbone, to have his dispute with the person who ran him down adjudicated by a judicial person.
That is the case for the amendment and the House should bear in mind that at present it is the right of workmen to go to the Circuit Court to have their claims for compensation heard. The Minister will not deny that at the present time more than 95 per cent of claims by workmen are conceded and that only a small percentage come to the Circuit Court. If the workman is not satisfied with the Circuit Court determination, he can go to the High Court or to the highest court in the land, to determine his right to compensation. We all know that many workmen have done it successfully; some have not.
The position of workmen will deteriorate very much if this right of appeal is taken from them. I therefore urge the Minister and the House to accept one or other of the amendments. I rather think the one we suggest is the better, for the simple reason that it will not involve the nomination of a barrister or solicitor of not less than ten years standing. It will mean the utilisation of existing judges who will be able to take this in their stride. What I see in this business of appeal to the Civil Service is that it will mean more work thrown on Deputies, Senators and councillors who will have to appeal over the head of the appeals official to the Minister. I do not think there is any right in the Minister to direct a rehearing. We should not have all this hugger-mugger where it is not necessary and where it is quite undesirable. On that ground as well as on the ground of justice and fair play to workmen, one or other of the amendments should be accepted. I suggest the amendment tabled by Senator FitzGerald and myself is the neater and more advantageous.
I should like briefly to support the amendment. The case for some measure of appeal was made on the Second Stage most effectively from both Front Benches. In his reply, the Minister did not show a disposition to accept it. I hope that on second thoughts he will appreciate the points made in the Dáil and here and that he will come to the belief that a system in which no appeal lies outside the officials of his Department is not satisfactory. It applies at the moment in relation to the social welfare code but not in relation to workmen's compensation. The fact that such a system exists in relation to social welfare is not a reason for transferring the whole area of this unsatisfactory no appeal system.
An appeal is particularly important in cases of this kind. We are not dealing here only with the kind of qualification or disqualification that one finds in the social welfare code, where there are no complex medical matters involved. It is more important here than in the sphere of social welfare that there should be an appeal. I find it hard to see why the Minister should seek to resist it. I hope he will not content himself by making critical remarks about lawyers. I have never made a halfpenny out of the law and never will, but I find it unfortunate that Ministers have developed this practice of trying to get out of undoubted dilemmas by throwing out a few sneers at lawyers, that they just want to make money. This is unworthy of either House and of the Ministers themselves. It does not add to our knowledge or edification. It does not get us any further.
These things need to be discussed in a constructive manner and the proposals put forward by the Labour Party and ourselves will not involve large legal costs any more than the present system generally does. Human rights are involved here and they should not be dismissed on arbitrary grounds. I hope the Minister will consider the proposals on their merits and will accept one or other of the amendments. If he feels there is a more satisfactory solution, he should put it to us. Neither the Labour Party nor ourselves are tied to the proposals in our respective amendments. We shall support what seems to us to be the best answer to the problem. We are convinced firmly on both sides that some proposal should be introduced to give a right of appeal outside the Minister's Department. Even Members of the other side of the House have expressed such sentiments and the Minister should have regard to that weight of opinion. I appeal to him to do so.
What we are doing in the Bill is extending the existing Social Welfare Acts to cover occupational injuries. The system of decision and appeal is already laid down in the Principal Act. It is not proposed to change it. There does not appear to be any reason why that should be done. It is obvious that either of the amendments would involve extra cost, to a greater or lesser extent.
I am entitled to refer to the view expressed in the Minority Report of the Commission which studied this matter and which consisted to a large extent of workers' representatives. They were of the opinion, as they said in paragraph 17 of the Report, that the administration of the social insurance scheme recommended by them would be by the same machinery as in the case of other social welfare benefits by way of deciding officers and appeals officers. This system has worked well since it was introduced under the Social Welfare Act, 1952. No system of appeals will be completely satisfactory to a person whose appeal is not successful, whether it is an appeal to the courts or as was said here, an appeal from one civil servant to another. But the percentage of appeals in which the decision of the deciding officer has been varied is reasonably high under the other social welfare schemes, so, it is quite clear that this is not a mere matter of form, of an appeal from one civil servant to another, and that there is no likelihood of a deciding officer's opinion being varied. That has happened often in the past and it is quite clear that appeals officers have minds of their own and take the facts put before them in an appeal into account in making their decisions.
The suggestion that a Civil Service mind is not fit to deal with this kind of matter shows that the change that has been made is not fully appreciated. The matters that will fall to be decided now will be analogous to the type of matters that fall to be decided under the existing Social Welfare Act. The interpretation of the phrase "arising out of and in the course of employment" is being clarified in accordance with the recommendation of the Commission and it is not expected that there should be any great difficulty in regard to the interpretation of these words.
There is provision already in the Social Welfare Act for the appointment of assessors to assist appeals officers and this is in fact done in connection with unemployment benefit, and if it appears necessary under this occupational injuries code, it can be done also. Provision is already there for it.
While, as I said, the minority of the Commission stated in their report that this system had worked quite satisfactorily, they did in the scheme which they eventually submitted make provision for local appeals tribunals. However, in view of what they have said, it appears to me that what they had in mind was that assessors such as are connected with unemployment benefit appeals might be appointed to assist appeals officers and there is already provision whereby that can be done. I do not think that will be necessary because the type of matters which will be in dispute mainly will be medical matters which will be more analogous to disability benefit claims at the moment rather than unemployment benefit. If it appears necessary assessors may be appointed; there is provision already for it.
It is very difficult to come to grips with the Minister. He has a handy knack this weather whatever is the cause of it of expressing views which are opposite to what the situation is. He says that what we are doing here is extending the social welfare code to cover workmen's compensation. What we are doing here is abolishing the workmen's compensation code and with it is going the right of workmen, whenever they are injured by accident, or whenever they say they are not fit for employment because of accidents.
Up to now they had the right to go to the Supreme Court but that is gone. The courts are out of it. The protection which the independent judiciary gives citizens of this country is being removed for all time from the workers. That is a change that is being made here but the Minister, in making that change, has knitted this particular type of benefit into the social welfare code. Of course, there are things gone out of this that have been taken from working men like the lump-sum compensation. That is gone and will be a tremendous loss to a lot of workmen who had it in the past, who will be involved in accidents and who, under existing legislation, would be entitled to a lump sum. The Minister may say that this lump sum payment is bad. Most workers will think it is good and workmen working for the county council and small farmers and small businessmen have been able to restock their farms or premises and make a better living for themselves in their incapacity and infirmity than they could under this social welfare code.
The Minister talks about costs. He is obsessed with cost and that shows what is going on in the back of his mind. If he looks at paragraph (c) of my amendment, he will see that this reduces costs. It says:
(c) Appeals under this section shall be heard in chambers and shall not be subject to further appeal to any other tribunal, court, or person.
If the Minister will consult with his colleague, the Minister for Justice, he will find that where something is heard in chambers, it merely means that a workman goes in to a judge and this tribunal consisting of one person from his trade union and one person representing his employers. He goes in and without any documentation or any pleading, says these are the facts and he brings up his medical doctor also. Then on that basis the matter will be decided. There is no more expense involved in that and I challenge the Minister to say how there can be more than there is under the existing appeals system.
If the existing appeals officer goes down and sits in Claremorris, the man will now have to go in and state his case and his medical officer will have to state his case and that is precisely the kind of tribunal there is. There are no documents, nothing but an oral hearing in exactly the same way as applies at the present time under the appeals officer, with the exception that the appeal will be an independentminded of tribunal.
The Minister can talk from now until 31st December 1966 but he will never convince anybody that you get the same satisfaction from a Civil Service tribunal as you get from a tribunal presided over by a member of the judiciary, on which also there is a member of the trade union and a representative of the employer. The Minister can talk as much as he likes but the workman is bound to get a much better run from the tribunal we propose than he would get from an appeals officer.
Under the Social Welfare Act of 1952 and the regulations made thereunder, these appeals can be determined solely on written representations, if the appeals officer so decides. If the appeals officer decides there will not be an oral hearing, that is the end of it. If I am wrong, the Minister can contradict me but in fact an appeal on paper is not an appeal at all.
The Minister is fond of minorities and of minority reports. He tells us what the minority had to say, which I quoted here derisively the last time, that the present system of appeals has worked very satisfactorily. This is something that was given by the minority, who are what I would call non-practising politicians. Practising politicians know very well from day to day experience that the present system of appeals under the Department of Social Welfare does not give satisfaction, and the Minister is blinding his eyes to the facts if he says that, and flying in the face of all his experience and of what he has heard from his colleagues and from other people in public life. The people who put that sentence into the report showed how little they understand and what little experience they had.
The best test of this kind of situation is the experience of people in all political Parties who have experience of the social welfare code and of the workmen's compensation code. What they have said—and it was said to me no later than today by a colleague of the Minister's Party—is: "How did the trade unions ever allow this?" The reason is that the trade union representatives who were on the Commission and wrote the Minority Report so beloved of the Minister just did not understand what was involved. We cannot say anything more than that. They have made a gross mistake and published it, but they did not understand, and colleagues of the Minister all over the country say: "How did the trade unions allow this?" The reason is that the trade union representatives did not understand what was involved.
The Minister says that what the deciding officers will have to decide under this Bill is analogous to what is contained in the existing Social Welfare Acts. If the Minister says that, I suggest that he does not understand the Bill which he is sponsoring in this House. All one has to do is to read section 3 to see the difficulties that are going to concern the deciding officer and the appeals officer. In section 4, you have all classes of accidents that are deemed not to be accidents, and persons in different employments who are deemed not to be in employment, and people deemed to be in employment but for the failure of some particular event. If the Minister looks at subsection (8) of section 2 and can tell me how a deciding officer can construe that section, he certainly is a greater innocent than I take him to be. Read any section of this Bill, with all the provisos and exceptions and notwithstandings and all the rest of it. You find that it is not clear as the Minister says it is.
Under the existing Social Welfare Acts, all a man has to decide is: is the person sick? It does not matter how he got sick. Is there a medical certificate to say that he is sick? These are the only things involved. There may of course be difficulties as to whether a person is within the scope. These difficulties as to whether a person is insurable are decided in the scope section of the Department of Social Welfare, and I am not concerned with that. What I am concerned with is the man who is entitled to benefit and who is not going to get it because some deciding officer says that though he may be sick and may be insured, it did not arise out of a particular accident. He is not covered by any provision of subsection (4) of section 8. It is not correct for the Minister to say that these particular things are analogous to what is contained in the Social Welfare Act.
Under the Social Welfare Act—I repeat it with emphasis—all the deciding officer is concerned with is: has the man got a card; has he got the appropriate number of stamps, and if he has, has he got a medical certificate to say that he is sick? In this case Senator Miss Davidson's amendment clearly demonstrated that the deciding officer would be concerned to see how he became sick, involving consideration of all types of employment, of all the circumstances to which workmen are subject and in which they find themselves.
Another point I want to make is that under the existing Social Welfare Act, there is an appeal to the High Court only on a point of law, so that the final arbiter of a workman's right, as far as facts are concerned, whether medical certificate or ordinary run of the mill facts, is the appeals officer. After him, there is no appeal. The Minister, I am quite certain, would be able to count on the fingers of his two hands the number of cases under the Social Welfare Act, which has been in operation since 1st January, 1953, in which appeals were taken to the High Court under section 40, or whatever it is. I venture to think that there was not one on average every year, because it is purely on a question of law that an appeal lies.
Here decisions as to whether a man was involved in a particular accident, or suffering from a particular disease, and so on, are all matters of fact to be determined by the deciding officer and the appeals officer. Once they have decided, then beyond the portals of Arus Mhic Dhiarmada there is no hope except the possibility that some Deputy will begin to write in the usual interminable letters and the Minister will write back saying: "This has been carefully considered by the appeals officer", and so on, and setting out what was the decision of the appeals officer. That is all the satisfaction the man would get. Alternatively the Minister will be involved in pressure to do something outside his legal authority and his lawful functions. I do not say that he will do these things but he will be put under pressure to do them.
That is a deplorable condition in which to leave the livelihood and wellbeing of workmen and their dependants. I would again urge the Minister to take a different view on this. This is the abolition of a well-established code that worked reasonably well for workmen over the years. We are getting rid of it, but in doing so, we should retain all the safeguards and all the good features that existed in this social welfare code for the benefit of workmen and their dependants.
I should like to emphasise to the Minister the point that Senator O'Quigley has already referred to, that is, that appeals officers under the social welfare will be handling the matters covered in the amendment rather than the tribunal we are asking for. The extract from the report which the Minister read notwithstanding, I cannot understand how anybody could think either that there was satisfaction under those appeals or under the appeals officer in the social welfare cases. Anybody in touch with persons concerned with these appeals knows there is nothing but dissatisfaction. There are complaints all the time about how they are summarily dealt with, how the person did not understand, how they did not listen, how they only asked for a note, and all this kind of thing. There was, very definitely, grave dissatisfaction and concern with what one might be excused for calling lesser cases—old age pensions and so forth. This is something which is much more serious, as has been pointed out by Senator O'Quigley. It is very serious where a man is, perhaps, left in the position that he might never earn his living again and leaving it to an appeals officer of the Department of Social Welfare would be a grave injustice to the workman.
The Minister really ought to give very serious consideration before he writes this suggestion off and leaves these men to the mercy of, maybe, very good-hearted Social Welfare officials. Even though they might be top civil servants, very clever men in the confined area of their occupation, they could not possibly replace a tribunal of highly technical selected people who would understand thoroughly the workman's point of view.
There are a number of points I should like to make in reply to the Minister's rather disappointing reaction. First of all, there is this repeated reference to the Minority Report. The Minority Report, as anybody who reads it will know, is a poor document and one which does not carry very much conviction. It is a reflection on it that one of the signatories was a member of the Department in question. I am by no means happy that a member of such a Department should be on such a Commission and in a position to involve himself in Minority Reports of this kind by saying how wonderful the Department is. I do not think any great reliance can be placed on a view of this kind.
We know, from trade union representatives and representatives of the Labour Party—people who are involved in these things all the time— that the present system is unsatisfactory. No matter what some trade union representatives were persuaded to say in this Minority Report, it was prepared in close collaboration with the Department of Social Welfare. This is not something which can be relied upon, when we have the concrete evidence of people who are involved in this every day. It may be that the trade union officials involved did not give enough consideration to it; it may be that they did not draft this part of the Report; it may be that in their concern at that time they were rather shortsighted—and I am glad to see that they have changed their views now—and parity with Northern Ireland and Britain was their highest aim; or it may be they were prepared to go along with things they did not really believe or feel. Everything written in that Report, as everybody knows, is contrary to the true position as we know it today.
If that view was held then, it has been changed since. That is evident from what Senator Miss Davidson has said here today. To continue to quote that Minority Report, signed by a member of the Minister's Department and, indeed, in so far as the trade unions have signed it, is not a satisfactory way of carrying on a debate of this kind.
The Minister says he is simply extending the social welfare system to include this particular business of workmen's compensation. But this starts off on the premise that the right thing to do is to wave the thing, this wonderful thing, he is doing for Ireland, that at least workmen's compensation will be a matter for social welfare and will be taken out of the hands of lawyers. The fact is that this is a fundamental failure: it is not an ordinary matter of social welfare, it involves unavoidable risk in that respect. It does not fall into the category of unemployment, old age or other things with which the Department of Social Welfare deals. There is a case for taking over this whole system from the existing insurance companies who run it. I signed the Majority Report with qualms in this respect.
The present system has much that can be said against it, as when the Minister decides arbitrarily to transfer this to the social welfare system without giving any convincing reason for it and to wave this as a flag—that in the social welfare you must take the bad with the good. We are certainly not prepared to take the bad as far as this question of appeal goes. Let us consider what is done in other countries, if the Minister can raise his sights beyond the United Kingdom, to which he seems to be devotedly attached. There are 22 countries in which adjudication in workmen's compensation is carried out by civil courts. They include countries like Australia, Belgium, France, Spain and countries like that. Then there are countries which have special courts. There are ten of these, which include countries like Switzerland and Finland, which is quite advanced in regard to legislation. Then there are countries in which adjudication is by State-sponsored bodies— there are 25 of these—but the footnote tells us that in 23 cases, all these, except Canada and Sweden, there is machinery, civil courts, special courts or other bodies, for reconsidering the decisions of the State-sponsored bodies. So that even when a State-sponsored body is set up to handle this matter, it is the normal practice that some other agency finalises decisions. This is true in countries such as Austria, Denmark, the Federal Republic of Germany, Iceland, Italy, Luxembourg, the Netherlands and Sweden. In all those countries, there is a State-sponsored body but, in every case, there is a right of appeal to some other court.
Now we are left with 20 countries in which the whole thing is settled by the State Department. What are the countries satisfied that this is the right way to defend the citizen's rights? There are all the communist countries— Albania, Bulgaria, China, Czechoslovakia, the Democratic Republic of Germany, Hungary, Poland, the USSR and Yugoslavia. It is the example of those countries the Minister wants to follow but, of course, there are other non-communist countries who also have this system like Afghanistan, Nationalist China, Formosa, Japan, Malaya, the Philippines, Signapore and Thailand. The Minister has, obviously, a Far-Eastern choice in the matter of social legislation. We are left with the United Kingdom and Norway as the only two countries with which it is reasonable to compare ourselves with standards in this list and the only two countries to have this kind of system— a State Department administering the system with no right of appeal to anybody. From where does the Minister take his example? I suspect he has not looked beyond the United Kingdom.
What we are concerned with here is the fact that the Minister is Minister of the Department of Social Welfare, the Department represented on this Commission; their representation was instrumental in bringing in a Minority Report to ensure that the Department would have full control of this system, with no appeal, and the Minister has lent himself to this particular arrangement by refusing to apply his own mind to it which he is perfectly capable of doing, but accepting the Departmental view and deciding that we must go along with the Minority Report which was brought in at the instance of his own Department, regardless of the fact that it runs contrary to the practice in virtually the whole civilised world.
I do not think that is a defensible attitude. When I spoke first on Committee Stage I hoped that sweet reasonableness would produce some results. I hoped particularly that the Minister would reflect on what members of his own Front Bench had said. I hoped that he would be induced to change his mind. His arguments were weak and unconvincing and he did not sound convinced by them himself. He told us it must be done because it must be done. We are stuck with a social welfare system in which there is no right of appeal. I do not think the Minister should come in here with such a closed mind on a matter like this. It is a matter in which human rights are concerned. The workers have rights now.
I have said that I was a reluctant signatory of the majority report. I would be more in favour of a State sponsored body and that is the kind of report I should like to have been in a position to sign. Bad though the present system is, and in certain respects appallingly bad though it is as regards the amount of compensation through the negligence of the Government over ten years in taking no steps to increase the allowance, it has some good features which are shared by most civilised countries. One of those good features is the right of appeal. That is something we have at the moment and it is something we ought to preserve. No good reason has been adduced for removing it.
We have been told the miraculous fact that appeals officers have reversed decisions of deciding officers. The fact that some decisions have been reversed on appeal does not tell us that the system as a whole is adequate or satisfactory. We do not know in how many cases decisions are reversed. All we know is that the appeals will now be decided by people within the same Government Department, people with similar backgrounds and outlook, trained in the same way and trained to look at things in the same way. No fresh view is being given by fresh minds. The future of the worker, his livelihood, his ability to maintain himself after an injury which may be detrimental to his earning capacity for the rest of his life, is to be determined by two civil servants, and so far as I can gather two junior civil servants in the Minister's Department with no right of appeal.
I see no reason why this country should move backwards. I see no reason why in this legislation we should not keep ourselves in line with the rest of the civilised world and instead move in line with the Communist countries and countries like Afghanistan and Formosa while the bulk of the countries with which we normally compare ourselves take the view that a right of appeal to some kind of court is an essential ingredient of human rights. We should be concerned with human rights. Part of the functions of a Legislature is to protect human rights against encroachment by the Executive. Here we have a clear case of encroachment by the Executive which is unnecessary, undesirable and avoidable.
It would not alter the fundamental framework of this legislation, or destroy anything the Minister is trying to achieve, to accept either of these amendments. It would not alter the shape of the legislation which the Minister has brought in. The Minister has indicated that he does not absolutely exclude the possibility of appeals in the future from the existing decision system within the Civil Service.
Why must we force the workmen's compensation code into the unsatisfactory shape of the social welfare system which was not designed for that purpose and which is quite inappropriate to it? It is all very well for the Minister to use the emotive phrase that Fine Gael are always against social welfare. That is palpably untrue but that is not the issue. There was evidence over the past 12 or 15 months as to who is most concerned with this question of social welfare. I shall leave that to one side.
This is not a question of whether this should be a social welfare scheme. The question is if it is to be a social welfare scheme, as the Minister has decided for good or bad reasons, whether it must be fitted into the exact shape of the existing social welfare system which was drawn up for other purposes. It should be allowed to form its own natural shape by following the pattern we already have in certain respects. I do not understand why the Minister is resisting these amendments. He may have made up his mind and does not like to change his mind. Long before I entered politics I always thought that it was much more to the credit of a person in politics to change his mind than to dig in his heels when he hears a good argument. There seems to be some kind of feeling that if you change your mind in some way that is a bad thing in politics. I do not believe that at all. Other Ministers have changed their minds. I have seen this even in the brief time I have been in this House. That has been welcomed and regarded as a sign of maturity. To dig in your heels and to refuse to change your mind when all the weight of argument is against you, from your own Party, from the other side of the House, from the Labour Party, from the trade unions, is not a sign of strength but of weakness.
I appeal to the Minister to reconsider this and to tell us that he will look at it again between now and Report Stage. I appeal to him to tell us that he will consider the case we have made as cogently as we could. This is a matter of importance. When human rights are concerned it is no harm to spend some minutes in this House trying to convince the Minister that there is a case for a change. I appeal to the Minister to listen to our arguments and to give full consideration to this matter which is regarded by people on all sides of the House as a matter of importance, and not just to say: "No, no, no." I appeal to the Minister to indicate that he is prepared to consider what has been said, and if he decides against it we will take the matter up from there and consider what is the next course of action to be taken. He should give consideration to the arguments which are put forward.
It would be a retrogressive step to move backwards towards the Communist countries and a number of backward countries, and to give up a right which our citizens have, and which the citizens of the countries of the Common Market have, at this stage, when we ourselves are contemplating membership of the Common Market. I made this point about the EEC on Second Stage and the Minister very rightly said that the EEC countries have widely divergent schemes as regards social welfare and, indeed, workmen's compensation. That is perfectly true. They have widely divergent schemes but they are united on this point, that however different the schemes may be—in Belgium there is the civil court and in other countries there are State sponsored bodies—in all cases they have a right of appeal to some court. In this respect they are in line with us and with reasonably advanced and civilised countries. For us to take the backward step in this matter of human rights of conforming to the pattern of the Communist countries and the countries of South East Asia and the United Kingdom—one of the most backward countries in Europe as regards social welfare matters—is something we should think twice about doing.
The Minister ought to consider seriously the points we have made. He should give consideration to those points between now and the Report Stage and tell us then what he has decided to do. He should not dismiss the points which were made here. He should give them serious thought. The case made by the Minister is not a convincing one. I do not think it has convinced the House. It certainly has not convinced me and I think the matter needs further thought.
I am amazed at some of the statements made during this debate with regard to the question of appeal. I have not any great experience with regard to this matter but I have some and I know that chambers of commerce and commercial organisations are invited by the Minister to nominate people who will act with his nominee on those appeal boards. I also know that trade unions and members of trades unions are invited to nominate people. I have sat on a number of boards as a referee or observer. My experience has always been that the person nominated as an appeals officer has at all times stretched himself fully to give to the appellant every measure that the Acts entitle him to. I have seen those appeals officers going to great lengths to elicit evidence from the appellant which would not normally be available or would not be available at once. They have extracted from the appellant evidence which has helped him afterwards.
There is no relationship between the type of appeal board in operation and the type of appeal board that may be in operation in communistic countries. It is ridiculous to make such a suggestion; it only goes to prove that the person who made that statement lacks knowledge of the exact case. As I said, I have sat on appeal boards and I am satisfied that the officers were always motivated by one desire and that was to see that the appellant got the fullest measure of justice which the Acts passed by the Oireachtas entitled him to get. From my own experience I am not certain that to put this into the hands of the judiciary will improve the matter at all.
It is taking it out of the hands of the judiciary we are questioning.
I am satisfied from what I know of appeal boards, and I am sure anybody who sat on them knows this, that the appellant gets every opportunity to make his case. I have seen the officials in question going to great extremes to elicit more information from the appellant in order to put him in a better position and to consider his case more favourably.
I agree entirely with Senator Honan that there is no doubt in the wide earthly world that the appeals officers on those appeal boards go to great efforts to help those people. They do everything they possibly can but still the result is great dissatisfaction as anybody who deals with those cases on a countrywide scale must know. I am quite satisfied that the appeals officers on those boards have the best intentions to do all they can in the best interests of those people. As Senator Honan pointed out, they go to great lengths to get all the evidence they possibly can from those people. I am really worried about their limitations. I have no doubt about their wish to help but the result of their wish to help has only been to produce greater dissatisfaction through the length and breadth of the country.
As I have said, it is the limitations of those officers I am concerned about. I feel those people are not capable—I do not say that in any derogatory way —of discriminating in the way a tribunal such as the one we are advocating could discriminate on the rights and wrongs of the injuries or what really can arise out of those injuries. Those people, no doubt, bring great humanity to bear on the cases they have to deal with but, again, let me stress that it is their limitations that cause me great concern. They are just not capable of taking a wide view of the case of an injured workman. It could happen that the injury suffered might not be serious but those appeals officers would not be in the position to realise what the ensuing years might bring to the injured party. For that reason I still think that the Minister should give great consideration to this matter before he turns it down. Nobody is reflecting on the appeals officers. They have done their best but their best has only resulted in grave dissatisfaction in very many cases.
I think Senator Honan is making a mistake. I think the boards he is talking about are the old age pensions boards.
They are the unemployment benefit appeal boards.
I do not think there is any provision in the Social Welfare Act for appeals under sections 42 to 44 to a board of the kind Senator Honan is talking about.
There is.
Section 43 states:
The Minister may appoint from his officers such and so many persons as he thinks proper to be appeals officers for the purposes of this Act, and every person so appointed shall hold office as an appeals officer during the pleasure of the Minister.
Section 44, subsection (11) refers to this matter.
That subsection states:
The Minister may appoint any person whom he considers suitable to sit as an assessor with an appeals officer when any question which appears to the Minister to require the assistance of assessors is heard.
If that be the case, what is the situation in relation to the question of greater cost which the Minister mentioned? The appeals tribunal we are suggesting is different from the appeal board on which Senator Honan has sat. We are concerned with a matter of much greater import. We are certainly concerned with the fact that the proceedings of the board on which Senator Honan has sat were not and have not got the great advantages of the tribunal we suggest. The difference between what we are suggesting and what is contained in the Bill is that, in my experience, very few cases can go to the board presided over by an appeals officer. The quality of the chairman of that board still remains the same as that of the appeals officer who in some cases may have heard the cases already and have pre-formed his views on them.
