HC Deb 12 July 1875 vol 225 cc1331-40

Order for Committee read.

Bill considered in Committee.

(In the Committee.)

Clauses 1 and 2 agreed to.

Clause 3 (Power of county court as to ordering of payment of money, set-off, and rescission of contract, and taking security).

MR. HOPWOOD

moved, in page 1, line 15, after "workman," to insert "or a master and apprentice." He moved the Amendment for the purpose of raising the question as to whether the Committee would continue the old law as between master and apprentice with respect to imprisonment for breach of contract when it had abolished the old law between employer and employed. He did not see why a punishment should be awarded to younger men which was not to be meted to adults. He wished to see "workman" and "apprentice" placed on the same footing in relation to the employers, the non-performance of a contract being treated in either case as a civil offence only.

MR. ASSHETON CROSS

was glad to have this question discussed at this early stage inasmuch as when it was disposed of it would decide several Amendments which had been placed on the Paper. He hoped the Committee would not assent to the Amendment. If the apprentice were placed on the same footing as a full-grown workman in regard to the making of a contract the master would be unable to bring the slightest pressure to bear upon him, if the need should arise. The object of the Bill, so far as it affected the apprentice, was to ensure correctional discipline, which would be for his good when he grew up. An apprentice was not to be allowed to leave his master in case fault was found with him. For the first time in history the employer and workman met, under this Bill, on absolutely equal terms; but the relations between the master and apprentice were totally different; the master must not only instruct the apprentice in his trade, but being his teacher must have leave to correct him, and when he committed a fault to scold him, but this he could not do if the Amendment were adopted.

Amendment negatived.

MR. TENNANT

proposed, in page 2, sub-section 3, line 11, after "unperformed," to insert "with the consent of the plaintiff," the object being to introduce into the law mutuality of contract.

Amendment agreed to.

MR. MUNDELLA

moved, in page 2, sub-section 3, line 14, to leave out from "The security" to end of the Clause, and insert— The security shall be an undertaking by the defendant and one or more sureties that he will perform the contract, subject on non-performance to the payment of a sum to be specified in the undertaking. As the Bill stood the workman might become surety for himself that he would perform his contract, and if he failed to appear at his work he was Hable to one month's imprisonment. This was quite contrary to the spirit of the Bill as shadowed forth by the speech of the Home Secretary on its introduction, when the right hon. Gentleman said he desired that a workman should not be sent to prison for breach of a civil contract. In Ireland and Scotland there was no such thing as imprisonment for debt awarded for breach of civil contract, but by this Bill they were constituting imprisonment for that breach both in Ireland and Scotland.

Amendment proposed, In page 2, line 14, to leave out from the word "defendant," to the end of the Clause, in order to insert the words "and one or more sureties that he will perform the contract, subject on non-performance to the payment of a sum to be specified in the undertaking."—(Mr. Mundella.)

MR ASSHETON CROSS

said, this matter had been under consideration for some time, and he thought the clause would work better for master and man if it were left as it now stood. It should be remembered that none of this machinery would come into operation until the Court was in a position to award damages. If, instead of an order for damages being made against him, the man said he was willing to come under an obligation for the specific performance of the contract, and was willing to give security to that effect, then the Court might order specific performance. If he failed to fulfil the contract, and if either he or his surety did not pay the sum mentioned in the order, then he might be sent to prison for one month.

MR. W. E. FORSTER

was sorry to hear the conclusion to which the right hon. Gentleman had come. He was of opinion that the clause as it stood would create a feeling in the minds of the working classes that great injustice had been done to them as a class; and it would practically be a restoration of imprisonment for breach of contract. If a division were persisted in he should vote for the Amendment.

MR. ASSHETON CROSS

said, this matter had been discussed before Commission and Committee, and the working men had not the smallest objection to his view of it; but if the Amendment of the noble Lord (Lord Robert Montagu) were accepted there could not be the shadow of a grievance.

MR. MUNDELLA

said, everybody understood the Amendment on the Paper would be introduced; but he must assure the right hon. Gentleman that working men were really anxious that these two sections should be removed, and that the remedy should be an ordinary County Court remedy; and, with the addition of a surety provided by the working man, he could not see why the Home Secretary should object. He should press his Amendment to a division.

SIR HENRY JAMES

said, the power of imprisonment given by the clause was no guarantee to the surety who might have become responsible for the payment of the fine imposed by the County Court Judges, because the plaintiff might at once proceed against the surety, so that it would be a barren gratification to place the debtor in prison; but if the debtor were imprisoned we should be returning to that imprisonment for debt which we had abolished, with this distinction—that imprisonment would extinguish the debt; and so the working man would be placed in a position different from that of any other debtor, who could be imprisoned only if he had the means to pay and did not do so.

MR. ASSHETON CROSS

said, the hon. and learned Gentleman had entirely misconceived the object of the clause. It did not propose to imprison a man for debt, but having been fined for a breach of contract, and allowed to return to his work, if he did so a second time then he was liable to imprisonment.

MR. HOPWOOD

understood the clause to mean this:—A man was brought before a magistrate or a County Court Judge for violating his contract with his employer, and was told that he might, if he chose, return to his work, subject, however, to a penalty of £5. Then, if he committed the breach of contract a second time, he was to be sent to prison.

LORD ROBERT MONTAGU

said, imprisonment would be just if a man broke his contract a second time, and, though having the means, refused to pay the damages; but if a man went to prison that would be a bar to all execution against the surety, so that a master would be most unwilling to press for imprisonment.

MR. SERJEANT SIMON

gave the right hon. Gentleman the Secretary of State for the Home Department the greatest possible credit for the ability and zeal he had manifested in connection with the Bill. But he submitted to him that while anxious to do the working man justice, he was placing him by this clause in an invidious position, by declaring that he alone in the community should be liable to imprisonment for a breach of contract.

MR. ASSHETON CROSS

said, that no one had contended for the interests of the working men more steadfastly than Mr. Crompton; but in reply to a question from Sir Montagu Smith, who asked—"whether, failing specific performance, he would object to imprisonment as an alternative?" Mr. Crompton replied that he would not. Now, he (Mr. Cross) did not go so far as this. He wished to state that no man could have an order for specific performance made against him, except by his own consent.

SIR WILLIAM HARCOURT

said, he did not object to the opinions of Mr. Crompton, but surely Members of the House of Commons might be permitted to discuss this clause, and to point out how it failed to carry out the expressed intention of the Home Secretary. Though the Bill abolished imprisonment for original breach of contract, they still, after a certain number of processes, came to imprisonment for non-performance of contract.

THE ATTORNEY GENERAL

contended that there was a misapprehension as to the effect of the provision under discussion. He would remind the Committee that imprisonment consequent upon a breach of a defendants undertaking to perform his contract was in no respect consequent upon non-payment of damages; the order for performance of the contract was an alternative for the order for payment of damages and the power to make such an order was introduced entirely in the defendants interest; for, in the first place, the power could not be exercised unless the defendant had put himself in the wrong by a breach of his original contract, so that an order for damages could be made against him; in the next place, such an order could not be made unless the defendant consented to it; and, thirdly, he only became liable to imprisonment upon his committing a breach of his undertaking, in other words, upon his again committing a breach of his contract. If, having once broken his contract and incurred the liability of having an order made against him for payment of damages, he for his own purposes, and to avoid such an order and its consequences, availed himself of the opportunity of undertaking to perform the contract, it surely did not appear a very severe penalty to impose a limited period of imprisonment upon him in the event of his not abiding by it.

MR. MUNDELLA

thought the right hon. Gentleman made a great mistake in quoting the testimony of Mr. Crompton, because his Amendment was submitted to him, and he gave it his warm approval. He contended that the clause did not place the masters and workmen on an equal footing.

MR. LOWE

was of opinion that one of the principles of the Bill, as stated by the Home Secretary, was that the failure of a workman to perform his contract should not be considered an offence; but according to this clause that failure was to be treated as an offence, and the right hon. Gentleman was condemned on the very ground upon which he professed to act. He hoped the Committee would not introduce a barbarous principle of that kind of slavery which compelled a man to make himself liable for contempt of Court if he failed to do what was required of him, and which he might not be able to do. This was a very melancholy beginning for a Bill which he himself had believed to be founded on principles of fairness and justice.

MR. FORSYTH

considered that the workman would have the option of performing the work or of going to prison.

MR. GOLDSMID

thought that a reasonable alternative would be the doing of the work, or the payment of a fine for not doing it. A man ought not to be sent to prison for non-performance of a contract.

THE SOLICITOR GENERAL

said, a man was not to be sent to prison because he did not perform his contract, but for not completing the undertaking into which he had entered with the Court. The Bill did not revive imprisonment for debt; but it allowed the workman to enter into a contract and to give an undertaking to the Court, and if he did not carry out that undertaking he would be liable to be dealt with in the same manner as other parties committing contempt of Court.

SIR HENRY JAMES

observed, that a defendant under the Bill would be the only defendant who in any Court could be imprisoned for non-payment of a sum of money which he had not the means of paying.

THE SOLICITOR GENERAL

said, if a man promised in a Court of Civil Jurisdiction to do a particular thing, and neglected to do it, he was liable to be sent to prison; not because he was a debtor, but because he was guilty of contempt of Court. It did not appear to him that the payment of a sum of money had anything to do with this matter.

MR. W. E. FORSTER

observed, that if a man undertook to go back to his work and did not do so that might be a wrong act, but it was not settled that it should be considered a crime. He repeated his opinion that the proposal would put back a workman into the position he now occupied, the only difference being that he would henceforth got a legal warning.

MR. RUSSELL GURNEY

pointed out that the clause was applicable to employers as well as to workmen. Moreover, it would not come into operation at all except at the request of the defendant. And even if the defendant, after all, neglected to perform his contract, he would not, as a matter of course, be sent to prison, but would only be liable to imprisonment, not for a month, or any other special term, but until he paid the penalty.

MR. ASSHETON CROSS

remarked that the clause had been introduced solely in the interest of the workman, and in order to induce the master sometimes to forego his claim for damages.

Question put, That the words 'to perform his contract,' in line 14, to the word 'undertaking,' in line 16, stand part of the Clause.

The Committee divided:—Ayes 182; Noes 162: Majority 20.

LORD ROBERT MONTAGU

moved, in page 2, line 21, to leave out "fail" and to insert "refuse or neglect." If a man refused or neglected to perform his contract he should be sent to prison, and that imprisonment would serve as a bar to the debt.

Amendment agreed to.

MR. SERJEANT SIMON

said, that notwithstanding the division which had just taken place, he should move that the maximum term of imprisonment should be one week instead of one month, so as to mitigate the severity of the clause.

MR. ASSHETON CROSS

said, that this clause was so entirely in favour of the working men that he was sorry a false colouring should have been given to it. He was, however, prepared to meet his hon. and learned Friend to the extent of substituting 14 days for a month.

MAJOR O'GORMAN

said, there were two parties to a contract, and here only one was subject to imprisonment for breach of contract; there was no imprisonment for the employer.

MR. ASSHETON CROSS

said, the clause was so drawn that both parties were subjected to precisely the same punishment.

MR. RITCHIE

said, he had voted against the Government in the last division, and though 14 days would certainly be better than one month, he thought it would be more satisfactory if the Home Secretary would withdraw the power of imprisonment altogether.

MR. W. E. FORSTER

did not give the Home Secretary credit for having drawn this clause entirely in the interest of the workmen, and he hoped that after the division which had been taken on the Motion of the hon. Member for Sheffield (Mr. Mundella) his right hon. Friend would re-consider the clause with the view of seeing whether it could not be withdrawn altogether.

MR. NEWDEGATE

hoped the Home Secretary would do nothing of the sort but adhere to the clause. It was quite right to mitigate the penalty, but why should contracts between workmen and employer be put upon a different footing from contracts between other people?

MR. ASSHETON CROSS

said, that under the law as it now stood, if a man broke his contract and damages were assessed, if he did not pay the money he might be sent to prison for six weeks. But under the present Bill, if a man said he would rather go back to his work he could do so.

MR. GREGORY

agreed with the hon. Member for North Warwickshire (Mr. Newdegate) that if imprisonment in these cases was abolished it would be an absolute exception to the law, and put masters and workmen upon a different footing from any other persons. Nothing was more common than for the Court of Chancery to be asked to require specific performance of a contract. Supposing a man contracted to construct a railway or to build a house according to a contract and specification, and failed to do so, the Court of Chancery could order specific performance of contract, and if the order was diregarded, the Court could send him to prison; but his workmen might break their contract with him, and if this clause were omitted they would not be liable to be sent to prison, the law thus making a difference in favour of the workmen to the prejudice of the master.

SIR WILLIAM HARCOURT

remarked that the question was whether they were now for the first time proposing to put the whole of the working class into Chancery. Specific performance had never been applied to contracts of this character, and the Home Secretary, in introducing the Bill, expressly disclaimed any intention of doing it. He hoped that, although the Home Secretary had agreed to substitute 14 days in lieu of a month, it would not be understood that the Committee were precluded in subsequent stages of the Bill from contesting the principle of imprisonment altogether.

Amendment, as amended, agreed to.

LORD ROBERT MONTAGU

moved, in page 2, line 24, to add— Which full term of imprisonment, anything in 'The Summary Jurisdiction Act,' and The Dehtors Act, 1869,' to the contrary notwithstanding, shall be in satisfaction of the order, and a bar to and execution or distraint on goods and chattels.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 4 (Jurisdiction of Justices in disputes between employers and workmen).

MR. HOPWOOD

moved, in sub-section 2, page 2, line 37, to leave out "from incurred," to end of sub-section and insert— Costs which the court is hereby empowered to grant or refuse, but not exceeding the sum allowed to the county court scale, and.

MR. ASSHETON CROSS

intimated that it was his intention to bring up a Schedule for regulating those costs.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 5 agreed to.

Clause 6 (Powers of Justices in respect of apprentices).

MR. BURT

proposed an Amendment, the object of which was to place masters and apprentices on the same footing as regarded the liability to imprisonment for wilful breach of indentures.

MR. ASSEHETON CROSS

said, his sole object in framing the clause as it stood was for the purpose of keeping up discipline in the case of the apprentices. The boy was under discipline but the master was not. As the law at present stood the master could be imprisoned by the justices if he refused to fulfil a specific contract.

Amendment negatived.

MR. SERJEANT SIMON

moved, as an Amendment, that the term of imprisonment to which a defaulting apprentice became liable should be altered from a month to a week.

MR. ASSHETON CROSS

said, he was willing that the term should be changed to 14 days.

Amendment, as amended, agreed to.

Clause, as amended, agreed to.

Remaining clauses agreed to.

MR. MUNDELLA

proposed, after Clause 4, to insert the following new clause:— A county court or a court of summary jurisdiction, acting under this Act, shall have jurisdiction to enforce payment of fines or forfeitures payable under any agreement between an employer and a workman; and any such fines or forfeitures shall not be stopped or deducted by any employer out of wages accrued due before the default in respect of which the fine or forfeiture is payable. The hon. Member said, that in textile manufactories a very large percentage of those employed were women and children. These latter were often subjected to the operation of certain printed rules of a harsh and arbitrary character, the effect of which was to forfeit whatever wages might be due to them should they be absent from illness or in any other way transgress the regulations. He could, if necessary, mention 50 cases of this kind. In one case a woman who had lost her husband in the night, being unable in consequence to go to work before 7 instead of 6 o'clock in the morning, she forfeited 10 days' earnings which were due to her, and on the case coming before the magistrates they said the case was a very hard one but they had no power in the matter. This was a condition of affairs which required alteration, and he hoped his Amendment would be accepted.

MR. ASSHETON CROSS

promised to consider the matter before the Report was brought up.

MR. MUNDELLA

said, that as he believed the Home Secretary was desirous of doing what was right in this case, he should rely entirely on his sense of justice to see that a clause, which would meet the object in view, was inserted in the Bill on the Report. He should, therefore, withdraw the clause he had proposed.

Clause, by leave, withdrawn.

MR. ASSHETON CROSS

proposed to add to the Bill a new clause to enable Justices to mitigate the penalty imposed by any Act relating to employers and workmen by reducing it to one-third of the sum named.

Clause agreed to, and added to the Bill.

House resumed.

Bill reported; as amended, to be considered upon Thursday.