§ Order read, for resuming Adjourned Debate on Question [17th May], "That the Bill be now read a second time,"
§ Question again proposed.
§ Debate resumed.
§ MR. FENWICK (Northumberland, Wansbeck)
said, he should not have persisted in moving the adjournment of the debate last night if he had not been anxious to emphasize the protest made by his hon. Friend the Member for West Nottingham (Mr. Broadhurst) against the undue haste with which it had been attempted to force an important Bill of this character through a second reading. He regretted very much that he and those who acted with him should have considered it their duty to have taken such a course, inasmuch as it might seem that they were ungrateful both to the occupant of the Chair and the very hard working officials of the House in standing for a short time between them and the holiday they had so justly earned and were so fairly entitled to. However, it was impossible not to feel that two hours and 20 minutes, the time that had been allowed for the discussion of the second reading of a Bill of such importance, was certainly not adequate to expect justice to be done to the provisions of the Bill. He knew it had been said already in the course of the debate that the Bill now before the House was in many respects a decided improvement upon the Employers' Liability Act as it now stood. Generally speaking, he was quite willing to admit that the Bill was in some respects an improvement upon the present law; but viewed from the workmen's point of view, he hoped he might be pardoned if he said that it was not so generally satisfactory to them as the Bill which stood in the name of his hon. Friend the Member for Morpeth (Mr. Burt), and for two very obvious reasons. The Act of 1880 had always, in the opinion of the workmen, possessed two very objectionable 703 features. In the first place it endorsed to some extent the doctrine of common employment as laid down by the Judges, and in the second place it permitted employers and workmen to contract themselves out of the provisions of the Act, or rather he ought to say, it permitted the employers to persuade their workmen, and in many instances to coerce their workmen, into contracting themselves out of the provisions of that Act. Now both of these objectionable features, although he was bound to admit they were in a modified form, were still contained in the Bill now before the House; whereas in the Bill of the hon. Member for Morpeth, both of these objectionable features were conspicuous by their absence. With regard to the question of common employment, he must frankly confess that it was a most difficult problem, and the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews) might be forgiven for not having attempted to solve it, considering all the difficulties with which it was beset. He was aware that it was exceedingly hard to make an employer responsible to pay compensation for the carelessness and negligence of a fellow workman; but, on the other hand, it was equally hard that a workman should have to suffer and be permanently injured on account of the carelessness and incapacity of an unskilled labourer. On both sides of the question it would be found that there was an equal hardship, and it might well be questioned whether there would be a greater hardship endured by the employer if the doctrine of common employment was abolished than was now endured on the part of the workmen. He frankly confessed that he himself had some hesitation in facing this question of common employment, and he should preserve an open mind upon it. When the Bill came up for discussion in Committee—if it did come before a Committee—in that House, or if he had an opportunity of considering it in detail, he should reserve to himself perfect liberty of action as to the course he should take in reference to the question of common employment. With regard to the other principle of the Bill—namely, that of permitting employers and workmen to make an arrangement by mutual contract, he desired to offer to it his most 704 strenuous and unqualified protest. Either the main principle of the Bill was desirable, or it was not. If they were satisfied in their mind that it was just and equitable that an employer should be made responsible for compensation for an accident that arose from traceable and culpable negligence on his part, or on the part of some one to whom he had entrusted his authority, then he maintained that if they were convinced in their own mind of the soundness of that principle they ought to be prepared to make their legislation uniform in its application. Considering all the mischief that had hitherto arisen from permissible legislation, and notably the legislation in reference to the Agricultural Holdings Act of 1875, together with the knowledge they had gained from experience in the working of the Employers' Liability Act of 1880, he thought they would be well advised if they made the principle of this Bill uniform in its application. But then he was told that it was undesirable to interfere with existing arrangements, and also with what was termed freedom of contract. It ought not to be forgotten, however, that the Act of 1880 interfered with arrangements that were existing at that time, and he should like to ask the right hon. Gentleman the Home Secretary whether there had been anyone made to suffer by the interference that Act necessitated? The Report of a Select Committee of 1883 showed that that Act had operated in the main to the advantage of both employers and employed. Not a single employer had been unduly harassed by the interference which the provisions of the Act of 1880 entailed. He was willing to admit that the doctrine of freedom of contract sounded very well. Hon. Gentlemen who sat on that side of the House professed to have a great regard for freedom and an anxious desire to preserve freedom of contract. He admitted that that doctrine had a most euphonious sound, but how did it operate in fact. What freedom was there in contract if on the one hand they had wealth and intelligence combined with a power of granting or refusing employment; and, on the other, as was too often the case, they had ignorance and poverty combined with pressing and urgent necessity, compelling the workmen in too many cases, he was sorry to say, even to sell 705 their birthrights for the merest mess of pottage that might be offered to them. To speak of freedom of contract in cases such as that was simply absurd. He might be told that the Government had attempted to deal with such cases; that they had endeavoured to prevent the employers of labour from taking advantage of the poverty of the employed, by declaring that contracts should be void except under certain conditions. But how did they propose to determine whether the conditions were good or otherwise. How did they propose to arrive at such knowledge? How did they propose to arrive at an understanding whether the undertaking of the employer was sufficient to meet the requirements of the case? In Subsection 4 of Clause 3 it was proposed that if a question arose as to whether an employer had satisfactorily provided for his employés, that evidence of a similar undertaking, under similar circumstances, should be admissible as evidence of the adequacy or otherwise of the undertaking. That was to say, that if a question arose as to whether the employer had adequately provided for the requirements of his workmen—say, for instance, in a district like South-West Lancashire, where there were from 28,000 to 30,000 miners, who had been forced, as a condition of being retained, to surrender their rights under the Act of 1880. It would, in that case, be perfectly competent for any one of the South-West Lancashire employers to cite the case of other employers who had taken a similar course with their workmen, and it would be admissible as evidence of the sufficiency of the undertaking made on the part of the employers with their workmen. Now he did not possess any legal knowledge, but he should certainly be very much surprised if any legal Member of that House would rise in his place and declare that Sub-section 4 of Clause 3, as it was now proposed, was in accordance with the law of evidence as it was understood in this country. What Judge could they get in this country who would allow to be used in a case evidence that had been submitted in a similar case, under similar circumstances, at another time. It might be regarded as a sound argument by a lawyer in defending the case of his client, but he ventured to submit to the House that there was no 706 single Court of Justice in the country in which the Judge would allow a reference to a case of that kind to be admitted as evidence. Yet that was what was proposed in Sub-section 4 of Clause 3. It was proposed that evidence of an undertaking under similar circumstances, and in similar employment, should be admissible as evidence of the sufficiency of the undertaking. He maintained that such a proposal as that was most absurd. Then, again, in Sub-section 5 of Clause 3, the proposal made by the Government was, to his mind, equally absurd, if not, indeed, more so. It was proposed that if a dispute arose as to the sufficiency of an undertaking, either in the case of a miner or of an operative in a factory or workshop, an appeal might be made to one of Her Majesty's Secretaries of State, or, in regard to other employments, to the Board of Trade, who should have power to decide whether the undertaking was sufficient or not. The subject, which was really referred to one of Her Majesty's Principal Secretaries of State or the Board of Trade, was not merely the nature of a contract. It was proposed to refer for their consideration a fact as to whether any such proposal had been made or not. [Mr. MATTHEWS dissented.] The right hon. Gentleman the Home Secretary shook his head. The sub-section said—On the application of a workman in any coal mine, metalliferous mine, factory, or workshop, or of his employer, one of Her Majesty's Principal Secretaries of State, and on the application of a workman in any other employment, or of his employer, the Board of Trade, may consider and decide whether a contract made or proposed to be made between the workman and his employer whereby the workman deprives himself of any right under this Act, is made, or proposed to be made, on such consideration as in this section mentioned, and if the Secretary of State or Board of Trade decide and certify that the contract is so made, or is proposed to be so made, then not only that contract, but contracts in similar terms with other workmen engaged under the same employer or his successor in business and in a similar employment under similar circumstances, shall, without further proof, be deemed to have been made on such consideration as in this section mentioned.And then, when the decision had been given by the Secretary of State or by some responsible Minister connected with the Board of Trade, the decision was to be upheld not merely in the case in question, but every other similar 707 case in which the same employers were concerned. No matter whether the case arose in South Wales or in the North of England—it was well known that an employer might be an employer of labour in the North of England and also an employer of labour in South Wales; that he might have collieries both in Northumberland and South Wales—this clause proposed that a decision arrived at in reference to a case which occurred in South Wales could be held to apply to a case which occurred under similar circumstances in the North of England. Such a proposal as that, to his mind, was simply ridiculous, and he hoped that when the Bill came to be considered in detail some steps would be taken to remedy the mischief which might be done by these two sub-sections, or to expunge them entirely from the Bill. With regard to the amount of compensation allowed under the Bill, he would like to ask the right hon. Gentleman the Home Secretary whether he really believed that £150 was a sufficient limit to insert in the measure, and whether, having due regard to all the circumstances, it would not be infinitely better to leave the question of the amount entirely in the hands of the Judge, making the fixing of the amount a perfectly free and open question? In that case, the amount awarded might be more or it might be less than £150. They, on that side of the House, representing as they did the working classes, were perfectly willing that the question should be left open to be decided according to all the circumstances of the case. Then, again, with respect to the time of notice of action. He would ask the right hon. Gentleman the Home Secretary whether there was really any necessity that the workman should be compelled to serve a notice upon his employer that he intended to bring an action? He entirely concurred in the remarks that were made by his hon. and learned Friend the Member for York (Mr. Lockwood) in the debate which took place last night. He did not see any necessity why notice should be given; and he thought it would be found that in 99 cases out of 100 that the employer was in such close touch with the work that he was perfectly and instantly aware of the smallest accident. He would undoubtedly be made imme- 708 diately aware of it by those who exercised authority under him, and he did not think it was essential, therefore, that they could insist upon this provision of the Bill that notice should be given. However, he would not trouble the House at that stage with any more lengthened remarks; but he sincerely hoped that the principle of contracting out of the Bill would, after full and proper consideration, be either so modified as to reduce the amount of contracting out to a minimum, or be ultimately expunged from the Bill. For his own part, he should prefer that the power of contracting out of the Act should be entirely withdrawn. He thanked the House for its attention, and must apologize for having detained it so long; but before he sat down he would express a hope that the Government would take into serious consideration the desirability of referring the Bill not to the Committee on Trade, but to the Committee on Law, who were, he thought, more fit and competent to deal with the question. He said that with all the more confidence because he did not happen himself to be a Member of that Committee; but he did think that the legal Members of the House were the best qualified to deal with the question, and he, therefore, hoped the House would see their way to refer the Bill to the Committee on Law instead of the Committee on Trade.
§ MR. TOMLINSON (Preston)
said, he congratulated the House on the tone and temper with which the Bill had been discussed by those who were, more or less, representatively interested, and upon the absence of Party spirit which had generally characterized the debate. He entertained strong hopes that the Bill might be so shaped as to be satisfactory both to employers and employed. With regard to the question of compensation, he would not then say anything as to what was the proper amount to which it should be limited; but he would ask the hon. Members opposite who objected to any limitation of the amount of compensation to remember that, whatever scale was fixed upon, the compensation would be a burden upon the industry itself. If an employer knew that for an accident, for which he was vicariously responsible, he was liable to have to pay a money penalty, he would provide for it in some way or other, either by insuring or by setting apart a reserve 709 fund to provide for such contingencies. The hon. Member for the Wansbeck Division of Northumberland (Mr. Fenwick) was not ignorant of the fact that the provision of a fund to meet the liabilites under the present Act must be a charge on the industry itself; and in view of these considerations, and also of the fact that the margin out of which profits were made was now extremely small, an undue sum should not be fixed for compensation, as it would diminish the fund out of which wages were to be paid, and would thereby be injurious to the workmen in whose interest the Bill had been introduced. He thought the clause in regard to superintendence would require the careful attention of the Committee to which the Bill was to be referred. He was quite aware of the great difficulty of framing a satisfactory definition; but it was quite obvious that the word "superintendence" might be so construed as to apply to the case of a few workmen employed on a common work, one of whom was placed in the position of a quasi-foreman, and, in effect, to do away almost entirely with the doctrine of common employment. When hon. Members talked about the injustice of compensation being obtained in one case and not in another, it must not be lost sight of that the man to whose carelessness the accident was really due went scot-free, and would probably not be allowed by the Trades Union even to be dismissed by the employer who had to pay the penalty. In no part of the House would this matter be considered, he hoped, as if there were any real antagonism between the employers and the employed; if such an idea were entertained anywhere, it was because their mutual interests were not properly understood. As to the power of contracting themselves out of the Act, the hon. Member for the Wansbeck Division of Northumberland (Mr. Fenwick) said that about 30,000 miners in South-West Lancashire had been forced to take that course.
§ MR. FENWICK
asked, if it was not the fact that it was made a condition of the engagement of the men in certain collieries that they should surrender all their rights under the Act of 1880?
§ MR. TOMLINSON
said, that so far as he was acquainted with the facts, the men were free to take the privileges of the Act or the benefits of the Permanent 710 Relief Society, and with the obvious fact before them, in the latter alternative, that the cost of litigation was saved, the Permanent Relief Society was largely preferred. In one case, where the employers determined to leave the men absolutely free, the men themselves met together and decided unanimously to request the employers to put them on the Permanent Society. Certainly, they could not be under the Act and have the advantage of the local relief society as well. In one part of Lancashire, very few of the colliers desired to claim to be under the provisions of the Act; though it was quite true that in another part of Lancashire a different view prevailed, but the idea of compulsion was a myth.
§ MR. FENWICK
said, the hon. and learned Gentleman had not answered his question as to whether it was made a condition of the hiring of workmen that they should surrender any claim they had under the Act of 1880?
§ MR. TOMLINSON
said, that in his view it was not a question of conditions of employment. No person could have the benefit of the Permanent Relief Society and still remain under the Act. He wished to disabuse the mind of the hon. Member that it was in the interests of the employer that the maintenance of the Permanent Relief Society was desired. It was both easier and less expensive for the employer to allow the Act to remain in force. But when it was mutually felt that greater advantage resulted from providing against all accidents by a permanent fund than by the uncertain operation of the Act, he considered that in the interest of the workman he should be allowed to enter into contracts excluding the Act.
§ MR. GULLY (Carlisle)
said, he did not intend to enter into the vexed question of common employment. He desired simply to call attention to that part of the Bill which for the first time proposed to extend to seamen and shipowners the provisions of the Employers' Liability Act of 1880. The proposal of the Government was that the Employers' Liability Act should extend to cases of personal injury to seamen in the course of their employment, unless the accident occurred elsewhere than in a port of the United Kingdom, in which case the employer was not to be liable to pay compensation for injury, unless the injury 711 was caused by some defect in the body, machinery, or tackle of the ship at the time when she last proceeded to sea from a port in the United Kingdom, and the default arose from the negligence of the owner or any person entrusted by him with the control of the ship. There were only two criticisms which he desired to offer in regard to that section of the Bill. Of course, it was obvious that a very large class of cases in which personal injury was sustained occurred while the ship was away from a port in the United Kingdom, and therefore the question of the liability of the shipowner for injuries of that kind was a very large question. He should be sorry to see it limited to the extent to which it was limited by this action. He only wished to call the attention of the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews) to the point, in the hope that before the Bill went into Committee the scheme might be modified somewhat in favour of the seaman. He had pointed out that the employer was not to be liable for accident which occurred outside a port of the United Kingdom unless there was some defect in the condition of the ship. Now, there was a very large class of cases also in which injury was sustained from the careless loading or overloading of the ship, and such cases were not covered by the section, as it stood, at all. He presumed the intention of the Government was by these words to include cases of careless loading, but that there had been some omission or mistake in the drafting, the proper words not having been used to express their intention. If they did not intend to include cases of careless loading, all he could say was that the clause was much more objectionable than he had thought it was, for that was the class of cases that ought, above all others, to be included in the Act. Either the Government meant it, or they did not. If they did, then he thought that the defects in the section, as it stood, might very easily be altered by adding the words "or loading" after the word condition. Another objection he had to the Bill was that it made it a condition to the liability of the owner for any negligence on his part in permitting a vessel to be in a dangerous condition, causing death or injury to a seaman, that the bad condition of the ship must have existed at 712 the time when the ship last proceeded to sea from a port in the United Kingdom. Say, a vessel was proceeding from London to China or the Cape by way of the Suez Canal; suppose, after she left London well provided with anchors, she anchored during stress of weather and lost all her anchors but one, and that she afterwards put in to Brest or Lisbon, where she might refit and obtain new anchors, but that the captain negligently did not obtain them, and continued his voyage without the proper complement of anchors, and that, as a consequence, meeting with bad weather again, the ship was lost, and her crew were drowned. Under the clause, as it was drawn, the owner would not be liable, and that, he submitted, was not as it should be. The captain, no doubt, was a fellow-servant, but he was the fellow-servant who was vested with the largest authority, and who came nearest to the position of an employer himself, because he was entrusted with the care of all the interests of the employer. Under the section of the Bill as it stood, as he (Mr. Gully) had endeavoured to point out, the greatest negligence of the master, provided it occurred at some place other than a port in the United Kingdom, was negligence for which the owner was not to be held responsible, and that seemed to him altogether contrary to the spirit of the Employers' Liability Act. As a matter of fact, the section said this—"If you, the master, allow your ship to leave the United Kingdom in a defective condition, and if, in consequence of that, injury happens to a seaman, you shall be liable." Well, they scarcely required an Employers' Liability Act for that purpose, for if it was brought to the personal knowledge of an owner that his ship was in a defective condition, or that he had not procured the necessary appliances to work the ship efficiently, he would be liable at Common Law; therefore, the Bill was almost illusory as regarded the liability of the owner of a vessel for that class of accidents. He would suggest that the words of the section should be altered so as to make the owner of a vessel liable for an injury happening to a seaman by reason of the negligence of the master in not providing proper appliances for the safety of the men on board, although that negligence happened outside the United Kingdom. 713 If a master failed to supply a vessel with proper and needful appliances at any place where he had the opportunity of supplying them, and accident took place in consequence, the owner should be held responsible. He admitted that there was an attempt made in the Act to give, to a certain extent, the benefit of the Employers' Liability Act to seamen as regarded accidents in ports of the United Kingdom, and, no doubt, a very large percentage of the accidents which happened to seamen did take place in port during the process of loading and unloading. But while the measure gave some extension of benefit to seamen in respect of that class of accident, he submitted that it entirely failed to deal fairly with seamen in respect of another very large class of accidents which happened outside the ports of the United Kingdom.
§ MR. BRADLAUGH (Northampton)
said, he thought that the bulk of the comments which arose on this question might more properly be urged in the discussions in Committee on the Bill; but as the measure, they were told, would be sent to a Grand Committee, and a large number of hon. Members interested in the question would not have seats on that Committee, there was a desire to express opinions during the second reading stage which otherwise might not have been raised at all. There was only one question of principle, so far as he knew, involved in the discussion which would arise on the Motion, and that was the question whether or not contracting out of the Act should be forbidden. That was the whole question upon which there was difference of principle. All the rest, he thought, would turn out to be difference of detail; and he was bound to say that if that question of principle were decided in favour of the view taken by the Government, and which also, by the casting vote of Lord Brassey, was taken by the Select Committee, of which he (Mr. Bradlaugh) was a Member—namely, that there was to be contracting out of the Act, then he thought it was only just for the Government to say that they had tried to frame as fair a Bill as was possible in view of the very difficult questions that arose. ["Oh!"] Well, he thought so, and he would explain why. There was one phrase which fell from the right hon. Gentleman the 714 Home Secretary which he hoped that right hon. Gentleman would modify, if he offered any words in reply. The right hon. Gentleman drew attention to the large number of actions which had arisen in consequence of the Employers' Liability Act of 1880, and he pointed out that only 38 per cent of those actions had succeeded, and that in 42 per cent of the failures the employers had had to pay the costs. Now, he did not wonder that, with all the work the right hon. Gentleman the Home Secretary had to do, he had not been able to have all the evidence taken before the Committee quite so much in his mind as he (Mr. Bradlaugh) had. He (Mr. Bradlaugh) himself had attended every Sitting of the Committee, had been present, he thought, at every minute of its sittings, and had conducted the bulk of the examination-in-chief until they came to that portion of the Bill which dealt with seamen, of which he had no knowledge; and he begged to say that the evidence was conclusive, both from professional witnesses, employers, and employed, that whatever the total number of accidents might be, it was exceedingly small, as a matter of percentage, compared with the large works and large number of men employed, and the matters arising in connection with those works. The percentage of cost in the matter of litigation was small; and nearly every employer, in answer to the question which Sir Thomas—now Lord—Brassey put to everyone, said it was so small as not to be worth reckoning in connection with the business. There was no kind of evidence that litigation had increased to any great extent, or that there was any tendency to an increase. As to the actions which had failed, the right hon. Gentleman the Home Secretary, who put the number down at 42 per cent, had already been reminded by the hon. and learned Gentleman the Member for York (Mr. Lockwood) that many of them arose on the question of notice. There was one case which had not been referred to in that House, which was before the Courts only a little while ago, and which showed the monstrous character—and he thought he might use that word—of the objections sometimes taken on the part of employers. The name of the case he might mention, as it was not one in which an individual employer was 715 concerned. It was that of "Beckett against the Corporation of Manchester." The man gave notice in proper time, but not to the proper officer. He gave it to the surveyor from whom he was in the habit of receiving his instructions from the Corporation; but that was the wrong officer, and the result was that the man was nonsuited and ruined. The right hon. Gentleman the Home Secretary had been exceedingly hurried by the way in which the debate went last night, and, therefore, had not dealt with as many points as he otherwise might have done; but he (Mr. Bradlaugh) trusted that he would say something to-day to show that he recognized on the part of the men the difficulty pointed out as to giving notice. He (Mr. Bradlaugh) quite agreed that in the Bill, as proposed, there was a clause which would meet such a case as that of Beckett if it occurred again, and would provide that the want or insufficiency of notice should not be a bar to the maintenance of an action if the Court before whom the case was tried, or the Court of Appeal, should be of opinion that there was reasonable excuse for the want or insufficiency. He would put this to the Government—if a certain man had a legal right, why should they put upon him a duty and obligation as to notice in making good that right which they did not put on litigants in actions at Common Law? In the case of an ordinary member of the public having a claim for damages in respect of injuries received, he could bring his action at any period within the Statute of Limitations; and in the case of a workman, if he had a right, why did they burden him with restrictions which, as the case referred to proved, at times prevented him from obtaining any remedy? The right hon. Gentleman the Home Secretary might say—"We have put Subsection 6 to Section 4, to meet every case that can be raised." Well, he did not wish to put the matter unfairly, but he did desire the right hon. Gentleman to appreciate what was passing through the minds of many of those who were arguing against him. The hon. Gentleman the Member for West Nottingham (Mr. Broadhurst) made a strange mistake last night. The hon. Member had put it very strongly when he said that human life was worth more than £150, and that that was all the compensation 716 that the Bill would give. He (Mr. Bradlaugh) did not understand that the Bill limited the amount of damage to be recovered to £150. What the Bill did was to recognize what the Committee felt—namely, that there were a number of cases in which the compensation estimated on a three years' earnings would not be adequate; as, for instance, in the case of a grown man, who had not long escaped from his apprenticeship, and, therefore, was receiving a very low wage. There were cases in which a man would have received a much larger compensation than £150, on the principle of three years' computation if an accident had occurred a week later, when he was receiving a larger wage; but, after all, this question of amount of compensation was purely a matter for Committee, If he were a Member of the Grand Committee, he should try to increase that sum; but, as he said, the matter was clearly one of detail, on which he had no right to detain the House for a longer period than was necessary just to draw attention to the point. He was at variance with the hon. and learned Gentleman the Member for Preston (Mr. Tomlinson), who had just addressed the House, on one point. He understood the hon. and learned Member to say, first, that there was no inducement held out to the men to contract out of the Act, and, next, that contracting out of the Act was not made a condition of hiring. He (Mr. Bradlaugh) thought that the Committee had had several printed contracts placed before them, in which the men were obliged, as a condition of the hiring, to consent to contracting themselves out of the Act. He had thought they had called half-a-dozen witnesses who produced the contracts from the places in which they were employed. He would not weary the House by going at any length into the question, because this, again, was a matter which they could deal with better when it came before them in Committee. He had thought, however, that the evidence was overwhelming, and that with regard to Lancashire they had had express evidence given by one of the representatives of a Miners' Association to the effect that great pressure was put upon the men to coerce them into contracting themselves out of the benefits of the existing Act, and that this witness estimated that between 717 28,000 and 30,000 men were treated in this way. The hon. Member asked how these Returns were obtained? The Returns were obtained from South-West Lancashire, and it was shown that all the colliery firms there, with the exception of that with which the hon. and gallant Member (Colonel Blundell) was associated, contracted out of the Act. A number of men produced the conditions of hiring, which were affixed to the pit's mouth, and without signing these conditions contracting himself out of the Act, they were told no man was allowed to descend the pit. It might be said that that was not coercion. He would put what it was from the evidence of Lord Dudley's agent, and would not use his own language, except so far as he aided the witness in examining him. Lord Dudley's agent, when examined before the Committee, urged that contracting ought not to be touched, because the employer and the employed were on equal terms in bargaining and ought to be left free.
§ MR. TOMLINSON
said, that what he had meant to convey was, that in Lancashire the system of the Permanent Relief Society, where it prevailed, was assented to by masters and men.
§ MR. BRADLAUGH
said, his view of the evidence was that a contract laying down certain conditions was drawn up by the solicitor to the employers or their association, and that no man was allowed to go down the pit until he had accepted those conditions. He had put it to the agent of Lord Dudley whether he thought that a man who had no means of subsistence except the sale of his labour, and who had no means of employment save the particular one he was seeking to enter into under the contract, was in as good a position to make a bargain as the employer with whom he contracted, and the witness replied that he thought he was. He (Mr. Bradlaugh) had then put it to the witness that taking a man who had no means of subsistence whatever, save the employment he was seeking, with a wife and children depending on him, whether he thought that the mere consideration of the man entering the employment should be sufficient to relieve the employer of all liability under the Act, and the answer was in the affirmative—that it was right to require a man to contract himself out of the Act, although if he refused he 718 would have to go away and starve. He (Mr. Bradlaugh) remembered the astonishment depicted on the countenance of the hon. and learned Gentleman the Member for Preston when this witness gave his evidence.
§ MR. TOMLINSON
I said nothing about the condition of things at Dudley. I only spoke about South-West Lancashire.
§ MR. BRADLAUGH
said, he was in a difficulty here, seemingly, for, with regard to Lancashire, the Committee had the express evidence given by one of the representatives of the miners' associations that great pressure was put upon the men to deprive them of the benefit of the Act; and they also had the statement that, with the exception of one Company—namely, the Company with which the hon. and gallant Gentleman (Colonel Blundell) was associated—the whole of the colliery proprietors of South-West Lancashire contracted out of the Act. He had himself produced a printed form of contract which was posted up at the mouth of the pit, and to which the colliers were required to assent before they were allowed to go down the pit. He was only going by the evidence. That might be quite wrong; but the hon. and learned Member for Preston had exercised, as he (Mr. Bradlaugh) had done, considerable latitude of examination, and he was sure, if there had been anything incorrect, they would have had the advantage of the skilled knowledge of the hon. and learned Gentleman in bringing it out. He did not suggest that there was anything but the fullest desire to arrive at the truth, and, having arrived at it, the great desire of every Member of the Committee was to frame the best recommendation they could as to what they all admitted was an exceedingly difficult problem to solve. There were several matters on which the Government had not adopted the recommendation of the Committee, as to special juries and County Courts and so on; but these were pure matters for Committee, and he would not weary the House now by going into them. There was one point, however, which he must deal with, and 719 that was as to insurance societies; and here he found himself in disagreement alike with the hon. Member for West Nottingham (Mr. Broadhurst) and the hon. Member for the Wansbeck Division of Northumberland (Mr. Fenwick). It was suggested that if the employer could insure himself against risk, he would not be as careful of the lives and limbs of those he employed as he should be. Now, assuming that to be true, what was clear was that the employer could insure himself against that risk whether his men contracted out of the Act or not. They had overwhelming evidence of that, so that the argument of his hon. Friends fell to the ground. But what had operated very much with himself, and, he believed, with other Members of the Committee, was that they found very large bodies of the men were contented with the insurance societies, or provident funds, or whatever else they might be called, now existing, and really wanted them to continue. Scores of thousands of men wanted the insurance societies to continue, and he did not think they were entitled to neglect that fact when they were dealing with something that must be in the nature of a compromise, and that could not be quite decided on the bare line of principle. When they were so deciding matters, they must cut clear whatever damage they might do on either side. When making a compromise, they must try to do the best for all concerned. Great ridicule had been heaped upon the Government by the hon. Gentleman the Member for West Nottingham (Mr. Broadhurst), because of the wording of the 3rd section of the Bill, and of some of the sub-sections. While there were one or two verbal Amendments he (Mr. Bradlaugh) would like to suggest in that section, if it should be his fortune to be on the Committee to which the Bill was to be sent, he was bound to say that the Government had tried to meet the difficulty in principle which the Committee would have to contend with. The Employers' Liability Act dealt with a very limited number of accidents indeed. The evidence given before the Select Committee showed that the proportion was so trifling as only to be a very small percentage of the whole of the accidents that occurred; and then the question was whether it was possible to get any reasonable sys- 720 tem of insurance in which the payments were anything like reasonable which would cover all kinds of accidents, and would, therefore, leave persons employed in no uncertainty, and whether it would not be doing a really good thing for the men to say to the employers on the one hand—"You have been relieved from your responsibility under the doctrine of common employment as interpreted by the Judges"—a responsibility which, speaking for himself, he (Mr. Bradlaugh) must say he thought they ought to bear, but as to which he admitted a different view might be taken by others—"and, relieving you from that responsibility, we ask you, as a condition of being so relieved, to join with the men in forming such funds as will give them protection, for such payment as is just, not only in the case of accidents for which you may be made properly responsible, but against all accidents whatever happening in the business in which you are commonly engaged." It was true that with reference to some businesses it would be impossible to get that continuity of employment which would enable that to be done; but then, in those cases, the employers would not be released from their responsibility, and he did not, therefore, understand the objection of the hon. Gentleman the Member for West Nottingham. If this question were again raised, he should be obliged to give the vote he had already given in that Committee, and he did not think the House would do other than the Committee had done. If the Grand Committee decided as the Select Committee did, then he should feel it his duty to try and arrange the best compromise he could for the men and the public generally, on the most satisfactory conditions he could get. Evidence had been brought before the Select Committee on behalf of the Northumberland and Durham miners, and the Report of the London and North-Western Railway Company, to which reference had been made, had been considered; but, with all deference to those who had spoken of it, he would point out that, although it was an excellent Company, the late Mr. Findlay had something of a Napoleonic way of dealing with its servants. They found that, on the London, Brighton, and South Coast Railway, a different state of things prevailed. Mr. Findlay's attitude was 721 rather that of the Commander of an Army, than that of an employer contracting with men whose labour he was buying. He (Mr. Bradlaugh) believed Mr. Findlay to have been a thoroughly good man, trying to do the best he could for the Company and the servants. He had made inquiries into this subject, since the Committee sat two years ago, putting questions to men in all kinds of employment; and while he agreed that in a good many districts there was a great amount of natural irritation at the harsh measures used by some employers towards their men, he believed the general feeling on the part of the large majority of men was to have some system of insurance, and not to run the risk of a law suit, in which the damages would be largely swallowed up by the lawyers, whenever an accident occurred to them. Then, it was exceedingly difficult to face the additional centralization involved in Sub-section 5 of Section 3; but if they did not do that, what were they to do? The hon. Member for the Wansbeck Division said—"Leave it to be decided by the Court." Yes; but poor people who desired to have the matter settled might be starving and unable to wait for the decision of a Court. A rich employer, with a rich insurance society at his back, could fight the matter out in a Court. Mr. Shaen, a solicitor of many years' experience, retained on behalf of the men, and Mr. Ruegg, who was employed on behalf of the employers, gave evidence on this point before the Committee, and it had seemed to the Committee that it would be an act of the greatest cruelty to leave the Courts to decide these matters.
§ MR. FENWICK
said, he had not said that it should be left to Courts to decide whether a contract was good or not, but what the amount was to be.
§ MR. BRADLAUGH
said, it would be a great pain to him if anything should happen, through his advocacy of the subject in that House, to break or weaken the friendship which for years had existed between himself and men like the hon. Gentleman the Member for the Wansbeck Division. But he must say that he failed to understand the hon. Gentleman's objections. The hon. Member held that, under the Subsection, that which the Board of Trade might hold to be fair consideration and fair employment in the case of a man in 722 the North of England, would be held fair in the case of another man under the same employer in South Wales, in some other kind of employment; but that was not his (Mr. Bradlaugh's) reading of the measure. If the circumstances of the employment, however, were similar, why should there not be similarity right through?
§ MR. FENWICK
said, that that might be sound argument; but to admit what was done in one part of the country as evidence as to what should be done in another part of the country, was contrary to reason; and he should be very much surprised to see any legal Gentleman rise and defend such a proposition according to the Law of Evidence.
§ MR. BRADLAUGH
said, he did not quite know where the Law of Evidence came in. Let them see how the matter stood. No one was to be allowed to contract themselves out of the Act, unless there was a contract in which there was an adequate contribution from the employer; and in the event of any dispute as to the adequacy of the contribution or other matter, before the contract was entered into, or after it was entered into, the employer and the employed might submit the matter to the Home Secretary or the Board of Trade. He thought it was a misfortune if they had to so submit it. It would be better if the employer and employed could elect a few men as a kind of committee who should determine such things. The Board of Trade was not likely to have the time to attend to those matters. The working men's organization on the one hand, and the employers' organization on the other, with their respective legal advisers, ought to be able to frame regulations which might meet with the approval of both; but there was not sufficient unanimity amongst the men in any one county which made it possible for them to accept a committee such as he mentioned. That being so, there must be somebody to determine the different matters which arose, or else they must be left to be determined by the Courts of Law. The Select Committee were of opinion that to leave matters to be determined by the Courts would be ruinous to the men and harassing to the employers. That was not a Bill which was intended to make the man who sold his labour and the man who bought the labour hostile to 723 one another, but it was a Bill which was intended to facilitate what was believed to be a reality in the majority of the cases—namely, a disposition on the part of the employer and employed to arrive at a just state of opinion between one another. The advantage of the Bill in this respect would be very clear. Take the case of the Council of Conciliation of Northumberland. The Committee had evidence that there were some employers who did not do their duty by the Permanent Fund there. They had evidence that in other counties the number of employers who did their duty was very small indeed. Under this Bill, if it became law even as it was, such employers would have no answer at law, because they would not have fulfilled the conditions, and any contract out of the Act they had compelled the men to make would have no effect. He trusted the House would not think he had been too intrusive in making these observations. He had only dealt in the most incomplete fashion with what he considered a great and grave question. The Committee were unanimously of opinion that the Employers' Liability Act of 1880 had done great good, that it had made the relations between employer and employed more peaceful; and it was the opinion of most of the Members of the Committee that it had done something to protect the men's lives, and to save men from injury, although he was not quite so sure of that. He had said that was the opinion of most of the Committee, and it was an opinion which must be considered, because the men were the huge majority of those concerned, and their lives and persons were to them as of great value as the property of the employers could be to them. He congratulated the Government on having made, in the main, an honest endeavour to meet some of the recommendations of the Committee. There were other recommendations which might be pressed in Committee, but he would not weary the House by specifying them now. He would only say, further, that he thought the Government might give way to the generally expressed wish that the Bill should not be sent to the Grand Committee on Trade, though, personally, he thought this one of the Bills which it would be better not to send to a Grand Committee at all. If he asked for the Bill to be sent to the Committee on Law, 724 it might seem selfish of him, because he happened to be a Member of that Committee. But he avowed that he devoted, in common with the rest of the Select Committee, very many hours to this question—in the examination of witnesses, and in the careful consideration of the evidence—and he should like an opportunity of utilizing the knowledge he so obtained.
§ MAJOR RASCH (Essex, S.E.)
said, he was aware hon. Members opposite representing mining and artizan constituencies were better qualified to speak on this subject than he was; but he represented men who got their living on the estuary of the Thames and on the coast of the North Sea, and whose interests were occasionally somewhat indifferently safeguarded by the House, and in their interest he ventured to say a few words. He thought it was a matter of great satisfaction that shipowners had accepted the situation, and supported the proposal to include seamen within the four corners of the Bill. That was all very well as far as it went, but he thought it did not go quite far enough. Like the right hon. Gentleman the Member for Central Bradford (Mr. Shaw Lefevre), who spoke last night, he could not conceive why the Government should protect sailors on the outward and not on the homeward voyage. It seemed to him that in this respect the Government were practically taking what might be called two bites at a cherry, and he hoped the Government would see their way to accept an Amendment upon this point. As time was short, he was particularly anxious not to occupy the time of the House that afternoon; but he hoped that the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews), who was in charge of the Bill, would not consider that, because he did not make a long speech upon this subject, the interests of the men he represented were of minor importance.
§ MR. DONALD CRAWFORD (Lanark, N.E.)
said, that although he did not entirely agree with his hon. Friend the Member for Northampton (Mr. Bradlaugh), that there was nothing in the Bill which might not be considered in Committee, and that, therefore, there was no need for a discussion on the second reading, he felt constrained to 725 make almost an apology to the House for intervening for a few moments at so inconvenient a time. The apology was one which he was reluctant to urge, because he was entirely averse to any separation in the House of the consideration of Scotch and English interests; but, at the same time, this Bill was one of such extreme importance to his own constituents and to Scotland generally, that he hardly thought it would be desirable no voice should be heard from a Scotch point of view. Although he could not, like the hon. Member for Northampton, pose as an out-and-out champion and defender of this Government Bill, anything he had to say about it would certainly not be in the way of hostile criticism. It was a matter for great congratulation that public opinion, and the opinion of the House on both sides, had so greatly advanced within the last few years upon such an extremely difficult subject as this. There was no doubt that the arguments which were urged against the introduction of the principle contained in the present Employers' Liability Act were strong and serious arguments. There was no doubt that the fears which were entertained that the consequences of that Act would be disastrous were worthy of consideration; although subsequent experience had furnished an answer to the arguments which were then used, and shown that the fears were groundless. The criticisms he desired to make were entirely criticisms of principle, but they might lead to practical results. There were several principles in the Bill which demanded consideration. It had been said that the only principle in the Bill requiring discussion was whether it should be possible to contract out of the Act or not; but he agreed with the general tenor of what was said by the hon. Member for West Nottingham (Mr. Broadhurst), that they could not leave out of view the important question of to what extent the principle of common employment was proposed to be relaxed and of how much further it ought to be relaxed. He agreed with his hon. Friend that the principle of common employment had been too tenderly dealt with in the Bill. There was at least one practical point applying to a great number of cases in which the principle of com- 726 mon employment should be further relaxed than it was, and that was on the subject of contracts. The subject was touched upon in the Bill, but he thought they might deal with it a little more boldly than they had done. No doubt the general principle of common employment was that while a man was responsible to the public for the negligence of his servants, he was not responsible to a fellow-servant of his servant. The justice of the distinction was not self-evident, although it must be more or less grounded upon considerations of equity or else it would not have become part of the Common Law of England: But it was not the Common Law of any other European country, and they had abandoned the principle in the present Employers' Liability Act. If the principle of common employment were sufficient for the justice of the case, there would have been no necessity to alter it, and he presumed it was because it was found to be unjust that it was altered to the extent it was altered. There was a large class of cases which was not met by the alteration of the law, so far as it had hitherto gone, or so far as he maintained it was proposed to go in the Bill. There was a whole series of such cases which occurred in Scotland. There might be two sets of persons employed on a job—say, the construction of a house; there was the plumber and his men, and there was the mason and his men. Now the Scotch Courts had decided that if the mason's man was injured by the plumber's foreman, the injured man had no recourse against the plumber, because he was not the plumber's servant. Furthermore, he had no recourse at Common Law, because it was held that he was engaged in a common employment with the plumber. The man was placed in a dilemma and deprived of any recourse at all. He had received several communications on the subject from Sheriffs, the local judges in Scotland, and, if he felt at liberty, he could quote still higher judicial authority for the opinion that the present law had proved inefficient and illusory. He did not think the contractors' clause of the present Bill would remedy the evil. He asked the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews) to look at Clause 2 of the Bill, which proposed to a certain 727 extent to extend the liability where there was a contract and sub-contract. He would not read the clause, but he asked the right hon. Gentleman's attention to what was his (Mr. Donald Crawford's) interpretation of it; and that was, that, hedged in with restrictions which were perfectly intelligible and clearly expressed, the liability of the head man was scarcely increased at all. If the plant was supplied by the contractor and it was defective, it must be defective owing to the negligence of some person for whom he was responsible. He (Mr. Donald Crawford) trusted that some such words as the hon. Member for the Wansbeck Division of Northumberland (Mr. Fenwick) suggested in regard to contracting out of the Act, would be inserted. When it was found necessary to resort to special legislation of this kind for the protection of labourers against employers, whatever might be said for or against the principle of such special legislation, the presumption was that the legislation was to be compulsory. If they had protective legislation of this kind, and they left it open to the parties to dispense with the provisions, there was an almost irresistible temptation to the employer to compel men to contract out of the Act. They had seen that in the case of the Truck Act, and other matters of the same kind. It was abundantly proved by the evidence read by the hon. Gentleman the Member for Northampton, that it was exceedingly customary, as was the case in the large concern of the London and North-Western Railway Company, to make contracting out of the Act a condition of the hiring. He submitted that that was not a fair position to place men in if they once decided to give them the benefit of special legislation of this kind. Men ought not to be exposed to the necessity of surrendering their daily bread and employment, or else contracting out of that privilege which Parliament had given them. But it was said, "If you do not give them the choice of contracting out of the Act, you destroy a number of wholesome and useful existing arrangements; you destroy the arrangements of insurance with which there is undoubtedly evidence to show many of the men are satisfied, and you will practically put the men in a worse position than they are in at present." Now, even if there were no answer to 728 that, he should say it was a very difficult question to decide, because he thought the preliminary argument in favour of leaving men the privilege granted by Parliament and so highly valued by most of the men was very difficult to get over. But there was another answer, because in the evidence given before the Committee, he found that a great many witnesses of experience and authority said that they saw no reason why the two systems should not stand together. For instance, Mr. Stanley Brown, the manager of the Employers' Insurance Company, said his Company never asked their clients to contract out of the Act; indeed, they rather wished they would not. He (Mr. Donald Crawford) could see no reason why there should not be insurance with the Employers' Liability Act to fall back upon, and he did not think it was at all made out that that would lead to increased litigation. In the opinion of many practical men that would be a perfectly workable system. He had a word or two to say concerning Sub-section 3 of Clause 3. It was a very ambiguous clause. He would be the last person in the world to indulge in mere verbal criticism, for he knew the difficulty of drafting such clauses. The sub-section referred to the case where a workman was insured not only for the class of accidents which fell under the Liability Act, but for all accidents whatever; and it provided that it was to be decided whether the insurance was a sufficient equivalent for the benefits under the Act, all things being taken into account. That might mean two things. It might mean that he was insured for a much larger class of accidents, that in that way he would get a much larger benefit than he would under the Act, although, in the particular class of accidents which fell under the Act, he might get a very much smaller benefit. What he (Mr. Donald Crawford) wanted to know was, whether a man would get as much money for an accident falling under the Employers' Liability Act or not, whether he had contracted out of the Act or not? He would not go into any of the details of the Bill, although there were details which were worthy of criticism. He trusted that the Scotch procedure would not be overlooked. Under the Act of 1880 all cases under the Employers' 729 Liability Act were sent to the Sheriff Court, and no special direction was given with regard to them. The intention, no doubt, was that they should be dealt with in a summary manner, as in England. The result was very different. There might be appeal from the Sheriff or Sheriff Substitute to the higher Courts, besides which neither party could have a jury trial, except in the superior Courts. These were things which ought to be remedied, and he thought it right to allude to them at this stage.
§ COLONEL BLUNDELL (Lancashire, S.W., Ince)
said, that the real question that they had to consider was, whether or not a man should contract himself out of the Act, all the other questions being purely matters of detail. A very few accidents arose from fault on the part of the employers. A consideration of the facts of the case led to the conclusion that, as long as the men considered their lives were in actual danger, they would not contract themselves out of the Act. The colliers in particular would by doing so benefit themselves in a pecuniary point of view. It should be borne in mind that the Mines Acts imposed criminal penalties on colliery proprietors if they failed to provide for the safety of the men. In the colliery he owned men had not contracted out of the Act, and that had been to him a source of income of £85 a-year—perhaps the only income that the colliery had produced. But, although the men had not contracted themselves out of the Act, he was certain that so long as there was any danger to their safety, it was best for them to do so.
§ MR. W. ABRAHAM (Glamorgan, Rhondda)
said, the remarks he had to make upon this question would not be of a hostile character, and, although the Bill did not meet with his full approbation, he might say of it:—"With all thy faults I love thee still." To those who said that the doctrine of common employment should be abolished altogether, it was very gratifying to find that it was being done away with by small degrees. Prior to the Act of 1880, there existed no law under which a workman could claim compensation for injuries sustained from negligence of their employers, although the right was extended to all other members of the community. The Act of 1880 was a concession on 730 that point, and it was perfectly true that the present Bill made them another concession, and if they lived long enough he believed that in this way the whole system of common employment would be at last got rid of. He then came to the question of contracting out of the Act, which, as a Representative of the workmen, he laid great stress upon. They found fault with the Act of 1880 because it permitted this, and they found the same weakness in the present measure. Some very interesting figures had been given by the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews) last night, showing that a large number of workmen had agreed with their employers to contract themselves out of the Act. He did not dispute that a certain number had contracted, or allowed themselves to be contracted, out of the Act; but that this was the result of a mutual agreement never had and never could be proved. The workmen were not free agents in their arrangements with their employers, who could give or withhold the work from them which their necessities required. There could be no freedom of contract where one man held in his hand the material which another must have. There were collieries in other districts than those which had been referred to in Lancashire, where contracting out of the Act was made an absolute condition by the employers; the men could not enter on any other terms. There were three or four collieries where every man working in them were members of the provident fund, which meant that they had contracted themselves out of the Act; on the other hand, there were collieries where the matter was left to the men, and not a single man was a member of the fund. It was true that the Bill, although in a very inadequate degree, attempted to provide power to a workman to sue unless the employer rendered him proper compensation in some form. This was a fair attempt to prevent the workman from being compelled to accept frivolous compensation instead of his right; and, doubtless, this section would be received by the great body of working men with gratitude, were it not for two or three modifications of the most serious character contained in a sub-section of the clause. Section 3 said— 731That any contract, after the passing of the Act, whereby a workman deprives himself of his right under the Act, shall be void.If the clause stood thus it would be a good one; but it went on to say—Unless it is made in consideration of some undertaking by the employer as is hereinafter mentioned, and that undertaking has been duly fulfilled.Sub-section 4 contained the mode of deciding whether an employer had made sufficient provision for such cases in a manner which he and his hon. Friends were compelled strenuously to oppose. It said, if a question arose as to whether the undertaking given by the employer sufficiently completed the requirements of the sub-section, evidence that a similar undertaking had been accepted as sufficient by persons employed under the same circumstances, and in the same class of employment, would be sufficient evidence of the agreement. But, in his opinion, this at once placed the workman at the mercy of the employer; for, he was sorry to say, that an employer might at all times get persons to accept as sufficient, for want of being able to make a better bargain, that which would be very inadequate compensation indeed. It would be remembered that when the Act of 1880 was before the House, a large and influential deputation of employers of labour waited upon the right hon. Gentleman the Member for Mid Lothian (Mr. W. E. Gladstone), then Prime Minister, and offered, if the Government of the day placed a compensation clause in the Bill, to pay cent per cent upon every penny which the workmen might agree to pay to compensate themselves for injuries received; but the right hon. Gentleman and the Government refused—they refused to place a monetary value upon the lives and limbs of workmen, but retained that principle in the Bill as a barrier against the effects of parsimony on the part of employers. The good employer had nothing to fear from the Bill. There were employers, he was glad to admit, who were a law to themselves; but there were some careless and small men whose action towards their workmen was of a very different character, and could not, with safety to their workmen, be left to their own free will. Sub-section 5, in his (Mr. W. Abraham's) opinion, provided a much preferable method of deciding this point by a reference to the 732 Secretary of State; but they found the same objection to the latter part of the sub-section as they did to Sub-section 4. He might be pardoned for using a strong term in reference to this part of the Bill; and he said it was monstrous that one man should be compelled to accept the terms made by another man, when he personally knew nothing of the conditions under which they were made. He was willing to admit that in respect of sub-contracts the Bill was an improvement upon the existing Act, although probably it would not work out to the same extent throughout all trades. But unless great care were taken, the difficulties in the way of the workmen might be increased in the matter of deciding to whom notice of action should be given. There were some difficulties in his way in this respect already, and it must be borne in mind that the multiplicity of employers would make it still more difficult when the question of notice had to be decided. He (Mr. W. Abraham) thought that this principle which was being admitted by degrees might have been carried a little further with advantage in the present Bill. In the case where inexperienced men were employed in contravention of the Act, he said that compensation should be paid to the men who were injured by the contravention of rules which were made for the protection of men's lives. He hoped the Government would give consideration to some of the suggestions which he and his hon. Friends had laid before them, the adoption of which would render the Bill much more acceptable to those whom it was intended to benefit.
§ MR. COURTNEY KENNY (York, W.R., Barnsley)
said, the House was greatly indebted to the right hon. Gentleman the Secretary of State for the Home Department (Mr. Matthews) for the very clear speech in which he introduced this measure; but in all that statement there was nothing which more surprised the House than the statistics as to the litigation which had taken place under the existing Act. They were told that in 38 per cent only of the cases brought under the Act had the claimant recovered compensation—that was to say, that the workmen who sued their masters had failed in 62 cases out of 100. How did those figures compare with the statistics of ordinary County 733 Court actions? Ordinary plaintiffs in County Courts failed only in two-and-a-half trials out of 100. The figures which the right hon. Gentleman gave the House did not inform them in how many of those cases the workman failed on the merits, and in how many he failed owing to the pitfalls and embarrassments which the Act threw in his way in connection with this matter of notice. There was no doubt that in this respect the Act did cast difficulties in the way of a just and equitable claim, and he regretted that these restrictions were actually increased. It was true that the Bill extended the time within which notice might be given; but there was a remarkable alteration with regard to what happened in case of the death of a workman. Where a workman died the Judge now might excuse the want of notice if he thought there was reason why it should not have been given; but under the Bill the Judge would not be able to accept a reasonable excuse, unless he thought that the defendant had not been embarrassed in his defence by the lack of notice. Now, that clearly placed a new difficulty in the way of the plaintiff; and it was the more unfortunate, because by the 11th section the Common Law remedy of the workman against his employer was in future to be capable of being enforced in the County Court. But, unhappily, the right hon. Gentleman the Home Secretary saddled the right of action with the unfortunate restrictions of procedure which were engrafted on the old Act; that was to say, notice of claim must be given under the same restrictions as notice of the statutory claim. There was a point about which the right hon. Gentleman was challenged very emphatically last night, on which he gave a very positive, but, as he (Mr. Courtney Kenny) ventured to suggest, a mistaken answer. It was pointed out that in bringing a Common Law case into a County Court the workman would be restricted to the same £150 limit as if he were enforcing his statutory claim; but in his answer to the hon. and learned Member for York (Mr. Lockwood), the right hon. Gentleman denied this. If, however, hon. Members would refer to the 8th section of the Bill, he thought they would find again by a most unfortunate—though he was willing to believe entirely unintentional—divergence from the language of 734 the existing Statute, the limit of £150 was imposed not merely upon the statutory action provided under the Bill, but upon all actions brought under the Common Law against employers for injuries sustained. Now, besides these points, in which the present Bill was actually, if unintentionally, retrogressive, there were several others in which the Bill did not bring forward that measure of reform which the House was entitled to expect. The right hon. Gentleman said the Bill was framed very carefully on the lines of the Report of the Committee which sat two years ago; but the right hon. Gentleman had omitted to refer to one recommendation—namely, that which would give the power of having a Special Jury in a case where an ordinary jury would not constitute a satisfactory tribunal. Another omission was that the Bill contained no words binding on the Crown. He thought there was no reason why the same law should not apply to the men engaged in perilous occupations in the goat arsenals and dockyards as was applied to the servants of private employers. A further limitation which he much regretted to see in the Bill—and which he ventured to think was inconsistent with the language which the right hon. Gentleman the Home Secretary had himself used—was the restriction as to the kind of servants who should be able to take advantage of the Act. If a fellow servant was entitled to compensation for the injuries caused by the negligence of employers, he was equally entitled to it whether engaged in manual or non-manual labour; he was entitled even if he were a clerk, agent, or domestic servant, which classes, however, were unhappily excluded from the provisions of this Bill. They had had a very striking illustration this Session of what happened when, having an objectionable rule of law, they, instead of boldly repealing it, attempted to make limitations and exceptions to it. In the Criminal Evidence Bill—in the unanimity with which it had been received by lawyers and the public generally—they saw an evidence of the disgust with which the country had regarded an attempt to introduce limitations and exceptions to an objectionable rule of law instead of taking the simpler course of entirely repealing it. He could not help feeling that as the country came to realize the benefit which had, by 735 general admission on the part of employers and workmen, been obtained from the Act of 1880, they would seek not only to strengthen that Act, as they proposed, by the present measure, but to carry forward the Acts to their logical consequence, make the general law universal, and put the servant in the same relation to his master as all the rest of the world. He (Mr. Courtney Kenny) had been sorry to hear the right hon. Gentleman the Home Secretary last night attempt to justify our anomalous English law on this subject by reference to the law of America. He (Mr. Courtney Kenny) had for some days last Autumn the opportunity of visiting the Congress Library at Washington, as he wished to refer to statistics gathered in America relating to the labour question; and he was surprised to find the Reports of the State Bureaus unanimous in their praise of the labour legislation of this country. The American Bureaus complained of the risks to which the American labourer was exposed. They complained, for example, that the life of an iron founder in Ohio was some years shorter than that of an English iron founder; and he had been struck by the language of one of these Reports, which summed the whole matter up by saying that whilst the English workman was a mechanic, the American workman was a machine. When the right hon. Gentleman the Home Secretary told us that the law of America was in harmony with our Common Law on this subject, he (Mr. Courtney Kenny) regretted that the right hon. Gentlemen had not added to that what Her Majesty's Ambassador at Washington said, as reported in a Blue Book two years ago—namely, that legislation was being pushed forward in the United States of America with the view of getting rid of this unfortunate doctrine and working on the lines adopted in this country. He trusted that we should follow in the steps of Continental countries who had refused to accept the doctrine of common employment, and had required all masters to treat their servants with the same justice as they treated all the world.
§ ADMIRAL FIELD (Sussex, Eastbourne)
said, he wished to reply to some observations which had fallen from hon. Members opposite as to the clause relating to seamen. As might be supposed, he, as a naval officer, would always 736 be in sympathy with seamen as a class and as he had no property in ships, it was impossible to suppose that he could speak upon this subject from any motive of self-interest. He desired to offer some observations on the clause, and in offering them his only wish was to do justice to the owners of merchant vessels and the sailors of the Mercantile Marine. He had read the clause relating to seamen very carefully, and also the speech of the right hon. Gentleman the Secretary of State for the Home Department, and he had listened carefully to the remarks of hon. Members upon the subject. He differed somewhat from some hon. Members on the matter. He, for one, had no objection to the earlier part of the clause, so long as it dealt with ships in ports, and to any personal injury happening to any one on board a ship in an English port. He thought that such a person should come within the scope of the Bill, and that anyone on board a merchant vessel in a foreign port also might very well come under the measure; but the moment a ship left an English or foreign port he thought that people on board should not come under the Bill. He had read the section which said that employers of seamen should not be liable to pay compensation for the injury unless it was caused by defect in the condition of the ship, or the tackle, furniture, apparel, machinery, or other equipments of the ship existing at the time when the ship last proceeded to sea from any port in the United Kingdom. He felt certain that no seaman had had a voice in the drafting of that sub-section, and he did not think that any seaman would have sympathy with the right hon. Gentleman the Home Secretary as to this clause. He did not speak of employers of seamen who would wish to shelter themselves from liability, but of those who desired to protect the seamen's lives in the best sense of the word. He believed that if Mr. Plimsoll had been a Member of that House he would not have given his support to this legislation. Let them treat ships in port as factories, if they liked, and not confine their legislation to seamen, but let the Bill apply to everyone engaged in loading or unloading the ship; but if they made this mischievous sub-section to which he had referred part of their law, he maintained 737 that it would embarrass captains of ships unduly, and would make a captain hesitate before sending a man aloft in bad weather, as it might be necessary for the safety of the vessel that he should do. The captain of a vessel might fear that some hidden defect might exist in the ship's rigging, and that an accident might result, and thereby, through hesitation in many cases, it was quite possible that the interests of a ship owner, as well as the safety of the ship and the lives of the men on board, might be jeopardized in a time of danger and difficulty. Seamen understood the risks of their profession, and what they wanted, better than landsmen; and he made bold enough to say that they did not require protection involving such restrictions, and that they did not desire the provisions of this Bill. What he wanted to see, in the interests of seamen and for the preservation of life, was the adoption of proper measures to guard against the vicious practice of over insurance and of undermanning, overloading, and of un seaworthiness, and to guard the seamen against bad provisions and bad accommodation. If they would, by legislation, guard the seamen in these respects, they would do that which the seamen wanted; but to talk about no notice being taken of any defect in the condition of a ship, or the tackle, furniture, apparel, machinery or other equipments of a ship, unless it existed at the time when the ship last proceeded to sea from a port in the United Kingdom, was absurd. When a ship "last proceeded to sea from a port in the United Kingdom," was the time when she was in the very best possible condition. Her running gear was in the best possible condition, whether new or old; but when she left the foreign port on her return journey the gear might be in a condition far from satisfactory. To the gear at that time, however, the Bill would not apply. Then there was a clause at the bottom of the page which gave protection—or supposed protection. It said that if the employer complied with the Regulations made from time to time by the Board of TradeWith respect to the ships of the class to which the ship belongs, and where those Regulations have been annexed to the agreement with the ship's crew, the ship and the tackle, furniture, apparel, machinery, or other equipments thereof shall be deemed not to have been defective within the meaning of this section.738 That provision, he maintained, opened the door very widely indeed to any amount of jobbery. How could they lay down Board of Trade Regulations for thousands of steamers carrying on different trades? And think what an army of Inspectors would be necessary to prevent the Regulations from being evaded. His own view was that, if they wished to legislate in the interest of seamen as a class, they should do it by an amendment of the Merchant Shipping Act, and not in a Bill which applied merely to workmen on shore. If they wanted the Bill to apply to seamen, then his advice would be to limit it to ships whilst in port or harbour, and not to worry sailors with a lot of unnecessary restrictions.
§ MR. PICKARD (York, W.R., Normanton)
said, he would not take up much of the time of the House. He was in hopes last night, when the adjournment was about to take place, that it would be possible to-day to commence the discussion of the Bill at 2 o'clock, and he was surprised that it had not been possible to do so. He was glad to find that there was a different tone adopted with regard to the Bill to that which was adopted when the measure of 1880 was brought in. They were told in 1880 that if such a Bill as that was passed into law our trade would be driven into other countries, and there would be nothing but bitterness between the employers and the working men. He was satisfied, however, that the right hon. Gentleman the Secretary of State for the Home Department would admit that this class of legislation ran in the direction of trying to take away bitterness between employers and employed. So far as the miners were concerned they were not asking for money value in this Bill, but for legislation which would provide protection for working men. The miners were asking for that which would make their lives safe when they were down in the mine, rather than for something to annoy the employers, to bring about litigation in the Courts, and to destroy the confidence existing between employers and employed. He was glad to find that all arguments founded upon charges of that kind had ceased to be used, There was not much he wished to trouble the House with on this occasion; but he did desire to say this—that so far as the doctrine 739 of common employment was concerned, the men with whom he was associated were totally opposed to it, and were for its total abolition. In so far as contracting out of the Bill was concerned, he could speak positively for the miners of Yorkshire—and he did not desire to speak for the working men of any other county—and could assure the House that they were against contracting out of the legislation, either by insurance or in any other way. The employers were saying they were making no profit, and the old argument used some time ago still existed—namely, that if there was to be an insurance on the part of the workmen it would simply exist at the expense of wages—that the men would simply get less wages. The effect of either contracting or insuring out of the Employers' Liability Act simply would be that the masters would not carry on their businesses in the way they would if they were bound to find fit and safe places for their men to work in. Certain statements had been made to the effect that employers did not force their men to contract out of the Act. Well, when he was in Lancashire in 1880, he found that the workmen there were forced to contract out of the Act. He found that the largest firms in Lancashire—such as Messrs. Knowles—and no one would dispute that they were one of the largest firms—made it a condition of hiring that the men should contract out of the Act. The evidence produced since then all tended to show that, with rare exceptions, the masters in Lancashire forced their labourers out of the Act. He was glad to hear the hon. Member opposite (Colonel Blundell) say that he believed that it was the highest and the best duty of an employer to see that they worked in places and under conditions which gave them the greatest security for life and limb, and he was glad that the hon. Member and many other hon. Members in this House did not fear this Act. The miners of Yorkshire, Northumberland, and Durham were practically content to remain in their present position, and had no desire for the opportunity of contracting out of the Act, either by means of Insurance Companies—who were advertising themselves forward wherever there were working men or employers—who were pestering everyone all over the country, either asking promises or 740 making suggestions that men should insure themselves. What were they to insure for? Why, these appeals were made simply to draw money from the working classes and the employers. Instead of dealing with this insurance question, let the House take the bolder course and leave the Act free. If they must adopt the principle of insurance, let them do it as proposed to be done in Scotland, instead of having Insurance Societies established over all classes and conditions of men. At the same time, he must say he did not believe in the principle of insuring out of any Act condoning neglect. If they were to have an insurance system, why not have a Bill passed into law which would make it compulsory on all classes of workmen and employers, at all classes of works, to insure, and let the insurance cover old age, as well as accidents themselves; and many other questions, which would turn up in Committee, no doubt, would be fully discussed? He was pleased to think that seamen were now put, at all events, on the first round of the ladder; and he was glad to think that the present Government had given the interpretation which had been announced to the clause in the Bill dealing with seamen. He trusted, however, that the provision would have its scope enlarged in Committee. He should like to ask the hon. Gentleman the Under Secretary of State for the Home Department (Mr. Stuart-Wortley) what position sub-contractors would hold under this Bill? He was not a lawyer, and did not pretend to understand the point himself; but he was told that a colliery owner would be in exactly a similar position to a contractor who contracted to build a house—say, for a Member of Parliament—but he (Mr. Pickard) failed to see, in reading the various sub-sections of the clause, that a colliery owner would be held responsible for the action of a sub-contractor. So far as he understood it, it meant this—that a colliery owner let his colliery to a contractor; that contractor sub-let the work to another contractor; and that that sub-contractor would be the only person that could be held responsible under the Bill. He trusted that the hon. Gentleman the Under Secretary of State for the Home Department in his reply would put that matter straight, and tell him whether or not he was right in his conjecture. In Yorkshire, in a great 741 many instances, the men found their own materials to carry on their trade—their picks, shovels, and all their other tools to carry on their work, and were said to be "in charge" of certain "working places." He trusted the question of sub-contracting would be clearly explained, so that they would be alive to the fact that every man in a pit who received an injury in the mine, whether under the contractor or subcontractor, would receive compensation for injury. He desired, then, to emphasize this point—that when the Bill left this House it should go, not to the Grand Committee on Trade, but to the Grand Committee on Law. He hoped the hon. Gentleman the Under Secretary of State would take that into consideration, and that, so far as he was concerned, the House would have a pledge from him that the Bill should go to the Committee he (Mr. Pickard) suggested. He would conclude his remarks on the measure at this point, because there would be little time left for other hon. Members who might desire to speak before 7 o'clock.
§ MR. PAULTON (Durham, Bishop Auckland)
said, he would not detain the House for more than two minutes; but one argument had been used by the hon. and learned Member for Preston (Mr. Tomlinson), and by other hon. Members, to which he thought a very practical answer could be given. He fully reciprocated the views of the hon. and learned Member for Preston when he said that this legislation should be, and was designed, to promote good feeling between masters and men, and should not, in any way, accentuate difficulties or disagreement; but for that reason he (Mr. Paulton) entirely disagreed with the hon. and learned Member as to the question of contracting out of the Act. He thought there could be no question that there was more friction produced by the desire of the employers, in many cases, to make their men contract out of the Act than by anything to the contrary. Take the case of Durham alone. He would not have ventured to intrude even for two minutes on the House if it had not been that this Bill was of the greatest possible importance to his constituents. He could safely say that the view of his constituents, and he believed of all the Durham miners, was against contracting 742 out of the Act. The hon. Gentleman the Member for the Normanton Division of York (Mr. Pickard) had said the same thing as to Yorkshire. The hon. and learned Member for Preston had stated that in Lancashire employers and men very largely contracted out of the Act, and that it saved a great deal of litigation, and prevented a great deal of difficulty; but his experience went directly to the contrary. He believed there had not been a single case in Durham under the Act. The men absolutely refused to contract out of it. They had always done so, and yet there had been no litigation whatever. He ventured to say that nowhere was there a better feeling amongst owners and men than there was in Durham. With regard to insurance, it was stated before the Select Committee that in 1878, before the passing of the Act, the contributions towards the Durham Miners Permanent Relief Fund were £39,000 from the men and £5,000 from the masters; and that in 1885—five years after the passing of the Act—the contributions from the men had risen to—61,000, whilst the contributions from the masters had fallen to £4,000. He (Mr. Paulton) thought that was a tolerably strong argument to show that the men want security rather than compensation; but the only point he had risen to emphasize was the fact that to do away with contracting out of the Act would not in any way increase litigation or ill-feeling between owners and men.
§ MR. PICKERSGILL (Bethnal Green, S.W.)
said, that at that hour he would only refer to a single point, and that was the clause requiring notice to be given, inserted in the Act of 1880, and so unhappily continued in the present Bill. It had been pointed out that this requirement of notice, with all its attendant formalities, was a terrible pitfall to an honest complainant; whilst, on the other hand, it had not been shown that it provided any protection to the employer against bogus complaints. On this point he fortified himself behind the authority of Mr. Ruegg, a barrister of exceptional experience in litigation of this kind, who had usually been instructed on behalf of employers, and not on behalf of the men; and this gentleman, before the Select Committee, expressed a very strong opinion that these requirements were unnecessary. He 743 should like to see the notice done away with altogether. He was quite aware that the Committee which sat last year did not go that length; but it did propose that the absence of notice should not be fatal, if the claimant could satisfy the Court that there was a reasonable excuse for his failure to comply with the requirement of the Act in this respect. Therefore, if they were not to get rid of the notice altogether, that, he submitted, would be a fair compromise. But, unfortunately, the Bill was not confined to carrying out the recommendations of the Select Committee; but it imposed a second condition besides a reasonable excuse on the part of the plaintiff, that other condition that the defendant should not have been prejudiced in his defence. Now, he thought that this second condition might operate very unfairly and oppressively; and he would tell the House, in illustration of this, something which had happened in a particular case. Suppose a man met with a terrible accident, was picked up in a mutilated condition and carried off to hospital, and was unable to move hand or foot for three months; suppose that while he was lying helpless there was no one to give notice on his behalf. There could be no doubt that, in these circumstances, a Court would hold that there was reasonable excuse on the part of the plaintiff. But was such a man to be deprived of all claim to compensation because the defendant came into Court and said that he had been prejudiced because, owing to the absence of notice, he had not been able to trace, and, therefore, unable to call, a witness whom he alleged was a material witness on his behalf? He (Mr. Pickersgill) thought that in such a case as he had described the absolute impossibility of giving notice ought to over-ride the prejudice, if any was suggested by the defendant. But, bad as the requirement of notice was in all cases, it became absolutely monstrous in the cases provided for by the 11th clause of this Bill. What did that clause do? Men had a right existing at Common Law at the present time; but the Bill said that the man who had that Common Law right should in the future be debarred from the opportunity of pursuing his remedy in the course prescribed by the Common Law, and should bring his action only in the manner which was prescribed by this Bill. He 744 was afraid that the requirement of notice would prove a pitfall to many a man who was injured.
§ MR. ERNEST SPENCER (West Bromwich)
said, that as he had the honour to represent a large manufacturing constituency, he desired to express his approval both of the scope and methods of the Bill. He quite agreed that where an employer delegated his authority he should be responsible, and he understood that delegation was one of the chief principles of the Bill. He would, however, prefer to see the delegation defined in a way sufficiently clear to make the Bill work in an unmistakable manner. From the 1st clause, Sub-section (b), one would suppose the employer was only responsible for the laches of himself, or some person to whom he had delegated his authority; but Sub-section (c) went much further than that, for it made the employer responsible for the negligence of any person in his service whose orders or directions the workman at the time of the injury was bound to conform to. He was afraid this would prove most confusing, for it clearly abandoned the principle of delegation. For example, take the two cases of a blacksmith and his striker, and a bricklayer and his assistant. In both of those cases the second workman was clearly under the orders of the other, and bound to obey those orders; and yet there was not what could be termed a delegation of authority by the employer except as it were of an involuntary nature, and resulted rather from the customs and necessities of the trade than from any special authority of which the employer had divested himself. He had no wish to detain the House, and upon the question of notice he would simply say he was perfectly in sympathy with working men having every opportunity of bringing their actions under the Bill; but, at the same time, he thought, considering the surrounding circumstances and the migratory habits of many workmen, there should be some notice of action required.
§ Question put, and agreed to.
§ Bill read a second time, and committed for Thursday 31st May.
§ MR. FENWICK
said, he wished to ask the right hon. Gentleman the First Lord of the Treasury whether he was 745 now in a position to say to what Committee he was prepared to send the Bill—whether it was the Committee on Law, the Committee on Trade, or the Committee of the Whole House?
§ MR. W. H. SMITH
said, he stated last night that when the House reassembled after the holidays he would state to what Committee the Government proposed to refer the Bill. He was afraid it would not be possible to take the Bill in Committee of the Whole House with advantage to the measure itself; and he also said that the Government had no prejudice as to which of the two Grand Committees it should be sent. They would endeavour to gather the opinions of hon. Gentlemen who were interested in the question, and the opinion of the House generally, and they would propose such arrangements as they thought, on the whole, would meet the views of those most deeply interested.