§ Order read, for resuming Adjourned Debate on Amendment proposed [14th November] on Consideration of Bill, as amended:—
And which Amendment was, in page 2, line 9, at the end of Clause 4, to insert the words—
In case any employer shall be sued by any workman for any injury caused by the negligence of any person in the service of the workman's employer, then the employer shall be at liberty to bring before the Court in which he is so sued such person as a third party to the action, and the employer shall, upon satisfying the plaintiffs claim, have the same remedy against the said person as the plaintiff would have had if he hail sued such person instead of the employer."—(Mr. Tomlinson.)
§ Question again proposed, "That those words be there inserted."
§ Debate resumed.
§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. ASQUITH,) Fife, E.
said, that since the discussion last night the Government had had an opportunity of considering the Amendment, which dealt with a very technical matter, and for reasons he would state he did not think that either in the interest of the employer or the workman they would be justified in accepting the Amendment. The proposal was, in substance, that where an employer was sued by a workman for injury, and if was alleged by the employer that the injury was caused by the negligence of a fellow-workman, the employer should be at liberty to bring before the Court as a third party the person who caused the accident.
§ MR. ASQUITH
said, the plaintiff would not allege anything of the kind. The negligence, so far as the plaintiff was concerned, would be that of the employer, the employer being liable for the act of his servant. That being so, it would be it retrograde step to bring 971 forward his servant as a third party. The third party procedure was adopted in the Judicature Act. In course of time it was found that the rule worked great hardship on the plaintiff, and the Judges deliberately changed it, and restricted it to the ease of third parties, against whom contribution or indemnity could be claimed by the defendant. Mr. Justice Bowen said it would lead to inconvenience, and Mr. Justice Chitty said it would embarrass the plaintiff in his litigation. The present proposal, therefore, was to reintroduce a procedure which had been abandoned by the Judges. It might be said that this procedure had been adopted in the Bill in the case of the sub-contractor, but that was not so. Under the sub-contracting clause the workman could only enforce his claim against the head employer by proving a state of facts which would make the subordinate employer liable. That created a direct case of indemnity, and therefore there could be no embarrassment to the plaintiff. The question at issue must always be the same between the defendant and the sub-contractor as between the plaintiff and the defendant. Unless the plaintiff could show a state of facts which would render the sub-contractor liable to the defendant, he could not make the defendant liable to himself. But because the plaintiff could make the employer liable for the negligence of his workman, it by no means followed that the employer had a right to an indemnity as against his servant, or even an action for damages. He submitted that the proposal would really give to an employer a right which the law did not confer on him at all—the right of recovering damages from his workman, though he himself was party to the negligent act. It often happened that an accident which occurred through the carelessness of a workman was really profitable to the employer, so that it was obvious that the measure of damages which the plaintiff had as against the employer was a different measure to that which the employer would be entitled to recover from his own workman. The Amendment would work hardship on the plaintiff, and would enable an employer to introduce into the action a totally new set of questions in which the plaintiff had no interest. Such cases as the Amendment contem- 972 plated might safely be left to the operation of the ordinary law, and if the Amendment were accepted it would act as an incentive for introducing into the measure that which would injure the simplicity of the remedy in the case of the workman himself.
§ MR. MATTHEWS (Birmingham, E.)
said, it seemed to him that many of the instances referred to failed in this case. It was not a case where the employer had made himself a party to the negligence of the working man by ordering it, prescribing it, and profiting by it. That case would not come under the Amendment—no case in which the employer had rendered himself particeps criminis. The right hon. Gentleman opposite said the introduction of the third party would clog and embarrass the remedy of the plaintiff. He (Mr. Matthews) was not able to see that. The plaintiff, if he succeeded, would not have to pay the costs of the third party proceedings. He would have to prove the negligence of the fellow-servant and the relations existing between that fellow-servant and the defendant. If the employer wore compelled to bring a second action, it might well be that he would fail in proving the negligence of his servant, though the jury in the first case had found negligence. But if the two actions were brought together, the same litigation would take place, the same evidence would be given, and there would be the same course of proof. He could not conceive why there should be any more embarrassment or difficulty or hardship on the plaintiff in a ease where there was no negligence on the part of the employer in making the same litigation establish once for all where the liability really rested. An employer could already sue the third party, but it was necessary that there should be a separate action; and in that action, if a different view were taken by the jury to that taken in the original ease, the employer might in the first place have to pay damages, and then fail to obtain redress. In the clause dealing with the sub-contractor, the Government had already accepted the principle of the proposed Amendment.
§ * MR. PERKS (Lincolnshire, Louth)
said, they were not dealing with the case 973 of the sub-contractor. It must be clear to every business man who had had to do with large contracts that the Amendment proposed would be of no practical utility at all. It would be embarrassing, useless, and idle. ILI his judgment, no employer would consider it worth his while to proceed against a workman, who would be perhaps in receipt of weekly wages, and would not only be unable to pay damages if they were awarded, but even unable to pay the costs incurred. The question for the employer under the Amendment would be whether he should call the workman as a witness or join with him as defendant. No prudent man would join a workman with himself as co-defendant.
MR. GRAHAM MURRAY (Buteshire)
said, it seemed to him that the Home Secretary had failed to draw a distinction between the principle involved in this Amendment and that which had been discussed in connection with the liabilities of sub-contractors. The Amendment was desperately technical, but at the same time it seemed to many Members that underlying it was a sound basis of common sense, and it would be a good thing if the Government would take the opportunity of amending the procedure under the Bill so as to let common souse have its way. The principle they were trying to arrange words for was that under the measure a servant was to have the right to sue an employer for injury due to the negligence of a third party, and it was a question whether liability of such third party was to be dealt with in the first action or in a second. The Government had admitted that the two actions could be taken together by adopting the sub-contracting clause. He did not pin himself to the precise words used in the concluding portion of the Amendment, which read—And the employer shall, upon satisfying the plaintiff's claim, have the same remedy against the said person as the plaintiff would have had if he had sued such person instead of the employer.This was meant to deal with the remedy and not with the right with which it depended. It might be, however, that though the plaintiff recovered on proof of negligence, there was a doubt as to where the negligence lay. That difficulty could be avoided by amending the Amendment so that it would read— 974Upon satisfying the plaintiff's claim to such remedy against the said person as to the Court shall seem just.It seemed to him that there should be one action instead of two, the method of bringing about this result being purely a question of draftsmanship. He would move the words he had proposed as an Amendment to the Amendment.
§ Amendment proposed to the proposed Amendment, in line 6, to leave out the words "the same," and insert the word "such."—(Mr. Graham Murray.)
§ Question proposed, "That the words 'the same' stand part of the proposed Amendment."
§ MR. OLDROYD (Dewsbury)
said, there was no dispute as to the fact that the servant who was guilty of negligence could be sued under the Common Law by the employer who hail suffered by it. The Common Law right was not affected by the clause. The difference which the clause would make would be that the action would take place at the same time as the original trial instead of in another suit. That would not be desirable, for that which would be considered negligence for which the employer was responsible might not be considered negligence as between the workman and the employer. [Several hon. MEMBERS: Why not?] Because it would be necessary in the second case to show greater negligence. ["Why?"] It would be necessary to take note of a different set of conditions. He trusted the Amendment would not be pressed, for it seemed to him that the remedy against the negligent servant was entirely illusory. There were only two sets of cases to which the Amendment would apply—cases relating to the ordinary workman, a man in receipt of weekly wages, who would not be worth powder and shot, and cases in which the negligence causing the injury was due to the foreman or other superior officer on the works. It seemed to him that the cases would be very few—if there were any at all—in which the employer would be likely to take action against his own foreman. The employer generally regarded the foreman as his own representative administrator, carrying out his business for him, and unless the negli- 975 gence were of a criminal kind he would not be likely to proceed against him. He (Mr. Oldroyd) trusted that the Amendment would not be pressed.
§ * SIR E. HILL (Bristol, S.)
said, he simply looked at the matter from a business point of view—which was not necessarily a pounds, shillings, and pence point of view. He could not help feeling that the Amendment would do good in promoting security from accident all round, for if a workman knew that although by committing an act of negligence he might throw the risk of having to pay damages on his employer, seeing that that employer could bring him to account by an easy process of law, it would tend to make him more careful. Although the workman might not be able to pay a fine or damages assessed against him, he would know that if proceedings were taken against him he would be hold up to the reprobation of his fellows.
MR. T. SHAW (Hawick, &c.)
said, that he, too, looked at this matter from a business point of view. He had certain doubts with regard to the advantage of the clause in relation to the sub-contractor, but when he looked at the present proposal his doubts were tendfold increased. The object of the clause seemed to be to give the master the right to bring into the suit all the workmen who might have contributed to the accident. The plaintiff might have convened into his action probably a dozen working men, each of whom might have a different defence to make. He (Mr. Shaw) was bound to say he had no sympathy whatever with the Amendment in any shape or form. The best course was to leave the Bill as the Government had framed it, giving the workman the right of action against the employer, and preventing the master from confusing the issues by bringing other or third persons into the action. By the course proposed in the Amendment the right of the workman might be defeated under a scheme of technical legal procedure.
§ MR. W. ALLAN (Gateshead)
said that, speaking as an employer, he saw no value in the Amendment at all. Without egotism he would confine his remarks to himself or rather to his own business. Take the case of a man working a steam hammer. He was ordered to strike lightly, but made a mistake and struck 976 heavy, scattering the slag of the forge and blinding a fellow-workman with a spark. Under the Amendment the hammer driver could be made a third party to the action. ["No, no!"] He did not believe there was an employer of labour who would make one of his workmen a third party to any such action, though the accident might have been caused by carelessness. The employer would not do so simply because, the majority of workmen getting comparatively small wages, it would be folly to endeavour to get anything out of them.
§ MR. STUART-WORTLEY (Sheffield, Hallam)
said, the hon. Member seemed to be under a misconception. There would be no obligation under the Amendment to call any third person into the action; the employer would only do so when it was worth while. The objection of the hon. Member for the Border Burghs, which was about the only one in substance, deserved consideration, as it would tend to show that the workman who suffered the injury might be embarrassed in his claim. But the Amendment provided for that, for no third person could be called in until the plaintiff's claim had been satisfied. All the other arguments they had heard had been of a most technical description. The Government contended that the object of the Bill was to increase the security of workmen, and yet the Government rejected the opportunity now offered by the Amendment to attain that object in a still greater degree. It was said that this remedy would be rarely resorted to, and that it would hamper the plaintiff's claim. But if it were rarely resorted to, it could not hamper anyone.
§ MR. CRAWFORD (Lanark, N.E.)
said, it seemed to him that the Amendment was an extremely unreal one. They might just as well put a clause in the Bill entitling the employer to bring an action against a servant for breaking a tea cup. He did not believe that the employer would ever think of bringing an action against his workman. His proper remedy against a servant who had been negligent was to dismiss him. Then, it was quite a fallacy to suppose that the question between the employer and the injured workman was the same as that between the employer and the workman who caused the injury. It was not the 977 same question. It would tend in the highest degree to confuse the issues in the actions brought before the Courts if the Amendments were adopted.
MR. GIBSON BOWLES (Lynn Regis)
said, it seemed to him that a great deal of the misapprehension which existed as to this Amendment had been caused by the misuse of the Queen's English. The House had been told that employers would not sue the negligent workman because the workman had but small wages. Those Members who so argued could hardly have looked at the definition of workman, which included the captain of a ship and others whose salary was not measured by a pound or two a week, but by thousands a year. One would have supposed that the Bill was for the relief of handicraft, or manual labour; but the mischief of the Bill, so far as it was mischievous, was that it imposed upon an employer liability for the acts of other persons—persons of every grade, and not merely working men whose wages were small, and who would have nothing to answer with in case of an action. It should, therefore, be borne in mind how wide the net was thrown by the Bill, and what a very large sense was attached, for the first time he believed, to the name of workman. It had been said, as an objection to the Amendment, that if the power of bringing in a third party to the action were given they might bring in as many as 12 workmen, all of whom might be accused of the negligence which caused the injury. But they might have to do that now. If under the Amendment it would be necessary to bring in 12 workmen as a third party, it would be necessary now to bring them in as a second party. It seemed to him that the resistance to the Amendment was the last despairing-struggle of lawyers to get two actions instead of one. If negligence was to be proved on the part of employer or employed, the same proof and the same action should suffice; and as it was the object of this Amendment to restrict the proceedings to one action instead of two, he could not understand why it was not accepted.
MR. KEIR-HARDIE (West Ham, S.)
said, that if the Amendment were adopted the title of the Bill would have to undergo alteration. The Bill made 978 employers liable for compensation to injured workmen; and if the House were to give employers power to recoup themselves at the expense of the workmen, that altogether altered the principle upon which the Bill was based. If it was said that sub-contractors could be sued under the Bill, that did not affect the point, for a sub-contractor was as much an employer as the contractor himself. Suppose an action for compensation were brought before a jury against an employer, and this side issue were raised, the result would be to minimise in the jury's eyes the responsibility of the employer, and to reduce the amount of damages, because it would show a divided responsibility. It had been alleged that the Amendment would tend to make the workmen more careful. On the other hand, it would correspondingly tend to make the employer more careless. If an employer engaged an incompetent workman for small wages, and an injury was suffered in consequence, the employer alone should be responsible, and he should not have the remedy given him by the Amendment. The last speaker had said that the object of the Amendment was to join what would otherwise be two actions into one. But the second claim—the claim of the employer against the workman responsible for the accident—could not be entered upon until the first claim was disposed of; and so, in any case, even under the Amendment there would be two actions.
§ MR. A. J. BALFOUR (Manchester, E.)
The hon. Gentleman who has just spoken appears rather to mistake the purport of the whole Bill, because he told us that if the Amendment were carried it would remove the obstacles to the appointment by employers of incompetent subordinates. I understand that by the existing Common Law, if an employer engages incompetent workmen and an injury is in consequence inflicted, there is a right of action against the employer, and this Bill does not add or take away from that, right. It leaves it exactly where it is. The whole effect of the Bill, in this connection, is to make the employer liable for competent subordinates, and, therefore, the argument of the hon. Gentleman falls to the ground.
I beg the right hon. Gentleman's pardon. The present 979 law makes the employer responsible for incompetent officers and not for incompetent workmen. Therein the Bill differs from the Common Law.
§ MR. A. J. BALFOUR
The hon. Gentleman has confused the existing Employers' Liability Act with the Common Law rights. I feel, however, a certain amount of sympathy with the hon. Gentleman, because he, at all events, has endeavoured to argue the question upon broad principles, and has not fallen into the very natural temptation of discussing it upon the minute and confined technicalities which commend themselves rather to the legal mind than to the general sense of the House. What are the broad aspects of this question? It cannot be denied, in the first place, that this Bill, whatever be its merits, does make a man responsible for things for which in reality he is not responsible—does make a man legally responsible for things of which he is not guilty—and therefore it violates our feelings of natural equity. The Amendment mitigates this sense of the violation of natural justice, because it says that the employer shall not be put to the cost of two trials where one would suffice. I think we owe this to the employers: that they should be relieved as far as possible from unnecessary actions. That is one broad principle on which I recommend the Amendment. But there is a second broad principle which has been alluded to, but to which no reply has been attempted by the Government. Hon. Gentlemen in this House who represent the Labour Party are constantly saying that any general system of insurance such as that upon the London and North Western Railway increases the danger to the workmen, because it removes the inducement to care. There is nothing in which we ought to interest ourselves more than in what tends to promote carefulness. Therefore, our whole object ought to be to increase the motives which would induce one workman to be careful that no act of his should inflict injury upon another workman. But the Government have shown no anxiety to do the one thing in their power to diminish the number of accidents from which the workmen now suffer. My hon. Friend has suggested a simple and easy way by which the person really responsible shall be brought into the case 980 in which damages are to be assessed to the injured party. I cannot understand why the Government reject that proposal. Not a single argument from the other side has touched even the fringe of the Amendment. If my hon. Friend divides I will certainly divide with him, on the double ground that the Amendment will give an equitable relief to the master, who in natural justice is not responsible for the accident, and will supply an inducement by which carelessness on the part of fellow-workmen may, to a certain extent, be obviated.
§ MR. BODKIN (Roscommon, N.)
said, he desired to call attention to a large class of cases under which this Amendment, if adopted, would work great inconvenience and injustice—he referred to the cases of mixed responsibility in which it was almost impossible to decide whether the master or the workman was primarily liable, or whether either of them was wholly liable for the injury caused. Suppose there bad been an ambiguous order, or suppose there had been an order that had been slightly exceeded, it might become a very grave question then whether the workman whose act was the immediate cause of the injury, or the master who gave the order, was really responsible for the injury that occurred. In that case it would be a grave injustice and inconvenience that the same measure of damages—the full measure of damages—which the workman who has been injured is entitled to should be accorded to the master as against the other workman, when the man himself was largely responsible, though not wholly responsible, for the injury. With regard to the observations of the Leader of the Opposition, he had to say it was quite clear that there was one great and over-riding sanction to prevent any negligence on the part of the workman, and that was the all-powerful sanction of dismissal. As long as the employer had that power, and could exercise it, if there had been gross negligence, there was no danger that there would be any substantial carelessness on the part of the workman. He believed that the Amendment, if carried, would work very grave injustice to workmen.
§ * MR. TOMLINSON (Preston)
said, the arguments put forward by various speakers against the Amendment in no 981 way affected that which he considered was the most important result to he obtained by his proposal—namely, securing greater safety against accidents by putting a workman in the position of feeling that if an injury is caused by his negligence he is liable to be brought before the Court, and have such order made against him as the Court might deem just.
§ Question put, and negatived.
§ Word "such" inserted.
§ Amendment amended by leaving out all the words after the words "person as," in line 7, and adding "to the Court shall seem just."
Question put, "That the words
'In case any employer shall be sued by any workman for any injury caused by the negligence of any person in the service of the workman's employer, then the employer shall be at liberty to bring before the Court in which he is so sued such person as a third party to the action; and the employer shall, upon satisfying the plaintiff's claim, have such remedy against the said person as to the Court shall seem just,'
be there inserted."—(Mr. Tomlinson.)
§ The House divided:—Ayes 61; Noes 162.—(Division List, No. 315.)
§ MR. MAURICE HEALY (Cork)
said, he had been asked by the hon. and learned Member for South-East Cork to move the following Amendment which stood in his name on the Paper:—Clause 4, page 2, line 9, after "removed," insert "and the costs chargeable by the County Court, or other inferior Court, for issuing a summons and plaint or a writ under this Act shall not exceed 5s. for a writ or summons, and 10s. for entry and hearing fee.He pointed out that, under the fees now existing in the County Courts, it was practically impossible for a working-man to institute proceedings for a claim of oven £20 without having to expend £3 in fees. There was nothing of that kind in the County Courts in Ireland, for in Ireland a man could issue a writ for 3s. He proposed to leave out of the Amendment the words—"or other inferior Court," as the Amendment which had been previously moved by his hon. and learned Friend—to enable suitors to proceed in Courts of Summary Jurisdiction, as the procedure there was cheaper than in the County Courts—had not been accepted by the Government.
In page 4, line 2, after the word "removed," to insert the words "and the costs chargeable by the County Court for issuing a summons and plaint or a writ under this Act shall not exceed 5s. for a writ or summons, and 10s. for entry and hearing fees."—(Mr. Maurice Healy.)
§ Question proposed, "That those words be there inserted."
§ MR. ASQUITH
said, he was anxious that the cost of proceedings under the Bill should be reduced to the lowest possible figure; but he thought it would be an inconvenient procedure to stereotype in the Bill a separate scale of charges for actions of this kind in the County Courts. He thought the subject of County Court fees was one very well worthy of consideration; but, as he had said, he did not think it would be a good precedent to introduce a special scale of charges applicable to actions of this kind, while other costs were fixed differently. He therefore hoped his hon. and learned Friend would not proceed with his Amendment.
§ SIR H. JAMES (Bury, Lancashire)
said, there had been already a deviation of practice introduced into the Bill. He wished to point out that it was competent for a litigant to issue from the Superior Courts a writ for any amount at a cost of 5s., and he did not see why, with these cases, where money was a great consideration on the part of suitors, that higher fees should be charged. He would therefore urge on the Home Secretary to re-consider the matter, and in the interests of poor suitors to reduce the fees.
§ MR. DIAMOND (Monaghan, N.)
said, he thought this Amendment deserved special attention at the hands of the Government. Let him suppose, for instance, that a very poor man met with an accident. He might be laid up in the infirmary for weeks, with, perhaps, his wife and children living on charity. When the injured man was able to leave the infirmary he had to got someone to take up his case, and to such a man fees amounting to £3 or £4 might prove an impossible barrier in the way of his getting compensation. The Bill, as he gathered, was for the benefit of the poor, and, therefore, it was absolutely necessary that the fees should be reduced to a minimum. If the Government desired 983 to make the Act beneficial to that large class of workmen who had no Trades Union behind them they should reduce the fees.
§ MR. RANDELL (Glamorgan, Gower)
also expressed the opinion that the fees should be reduced considerably; and with reference to the question of precedent, he reminded the Homo Secretary that the House had already fixed special fees under the Crimes Act. That precedent, he thought, might be very well followed in this case.
§ SIR E. CLARKE (Plymouth)
said, he hoped the Home Secretary would see his way to yield in this matter. He quite appreciated the difficulties that existed as to interfering in special cases with the fees chargeable by the County Courts. But the fees charged by County Courts now were simply outrageous, and they would not be allowed to continue only for the strange mercantile theory that the administration of justice in this country should pay for itself, and provide an income of some kind. He was sure that in this special class of case no one would object to lay down special fees. A workman might find it difficult to get the assistance of a solicitor to advance him the necessary money to institute proceedings. It was, therefore, of importance that they should make ligitation as cheap as possible. In France it had been found necessary to make this particular change. There were special provisions by which the workman injured in his industrial occupation was enabled to start his litigation on law fees.
§ MR. ASQUITH
said, after the very general consensus of opinion from all quarters, and from all Parties in the House, he found it difficult to adhere to his original objection to the Amendment. That objection was probably not insuperable; and as the House was generally of opinion that this class of actions was an exceptional class, and that, therefore, the charges ought to be specially restricted, he was ready to accept the Amendment.
§ MR. A. J. BALFOUR
said, that everyone must sympathise with the speakers who had supported the Amendment, and he agreed with what had fallen from them; but, at the same time, he thought there was great force in the original speech of the Home Secretary—that to deal ex- 984 ceptionally with this particular class of case was a course that was surrounded with many objections. The way the matter struck him was this: In the County Courts very excessive fees—1s. in the £1—were required from all suitors. No such rule existed in Ireland at all. There the remedy of the law was brought within the reach of everyone, however poor; but in England they followed a different system, and they made poor men pay heavily in order that they might obtain justice. He thought that that was an intolerable situation. He would go further. He thought it should be amended so far as the class of cases in this Bill was concerned. It could not be amended without having in view the general reform of the whole matter, which should follow the particular case with which they were now concerned. They could only deal now with one particular class of case, but no one could seriously maintain that the workman who was injured should have more consideration than the man, equally poor, who did not happen to have been injured, and he hoped, therefore, that the change would be but the initial step in a great reform. But who stood in the way of that general reform? The Treasury, and the Treasury alone. This was a Treasury matter, and the reasons why large fees were charged were Treasury reasons, and not legal reasons. They had nothing to do with the administration of justice, but they had to do with the relief of the taxpayers. He therefore thought that the Treasury should be consulted as to the general scheme that ought to be adopted, of which this particular Amendment was a part. Everything the House did now must be extended to every class of case. In his opinion, the Government should have some opportunity of considering the question as a whole, and of considering what was to be the general form of which this Amendment was the first and the governing step.
§ Question put, and agreed to.
MR. RENTOUL (Down, E.) moved—
Clause 4, page 2, line 9, at end, add "In any action to be tried in any County Court under this Act any party thereto may require the action to be tried by a jury of twelve persons, and shall obtain such jury by giving notice in writing to the registrar of such County Court five clear days before the day originally appointed for the trial of such action.
He thought this matter was of considerable importance, because of the amount of damages that would be recoverable in actions under the Bill. The number of the jury in the County Court was five; and the Amendment would enable either party in an action to obtain a jury of 12 persons. By the Returns of the number of common jury actions in the High Court he found that the average sum recovered in these actions was about £70 each case. He fancied that the average amount which would be recovered in the County Courts under this Bill would be considerably over £70, and, therefore, it was of importance that as good a tribunal as possible should be obtained for the trial of those cases. During the Debate on the Motion that the limit of the jurisdiction of the County Court under this Bill should be reduced from £300 to £100, and that the litigant might have the power of removing cases of over £100 damages to the High Court, the Chancellor of the Exchequer replied that we trusted the jurisdiction of the County Court to £500 in Equity cases and to £1,000 in Admiralty cases; and, that being so, he could not see why we should fear to trust cases under this Bill involving £300 to the same tribunal. But the Chancellor of the Exchequer failed to recollect that the cases to which he referred were not tried by juries at all. There were, in fact, two tribunals in the County Court. In one the Judge sat alone or with assessors; in the other the cases were decided by a jury, and the matters to which the Chancellor of the Exchequer referred came before the Judge sitting alone. It seemed to him to be reasonable that they should have in the County Courts, in actions under this Bill, a jury of the same number as in the High Court. Indeed, if he imagined he could carry the House with him he would allow the litigant to have a special jury if he wished; but it was more probable that the House would agree to the present Amendment, increasing the jury from five to 12 persons. There was greater chance of five persons being absolutely led by one individual than there was of 12 being led in the same way, and there would be greater satisfaction to the employer who was mulcted in damages if his case were tried by the same number of jurymen as he
would have in the High Court. He feared that actions would be brought in the County Court for £290 or £295 for the purpose of keeping the cases out of the High Court. If that were so, it seemed clear that the employer would desire to have the larger jury; and, on the other hand, every honest workman would desire that the action should be tried by as proper a jury as could possibly be obtained. The character of the jury had been frequently referred to in a, previous Debate. The Attorney General had said that the actions would be tried by juries of intelligent persons; but the right hon. Gentleman must have remembered, from his experience of County Courts, that if the jurors were business men they were business men of a very small type. Again, the hon. and learned Member for South Islington had said that the danger lay in the difference between the character of juries in the High Court and juries in the County Court, and the hon. Member for Bristol had referred to the County Court juries as "ignorant and ill-constructed juries." They had, therefore, strong expressions of opinion in this matter from all sides of the House. He wanted simply to point out this to the Home Secretary, which his practice in the past would enable him to appreciate; that in all human probability vast numbers of actions would be brought for sums of £290 or £295, in order to prevent the employer going to the High Court; and as it was advisable there should be as good a jury as could possibly be found, he could not conceive any real objection to the Amendment; therefore, he hoped the Government would accept it.
In page 2, line 9, after the last Amendment, to insert the words—"In any action to be tried in any County Court, under this Act any party thereto may require the action to be tried by a jury of twelve persons, and shall obtain such jury by giving notice in writing to the registrar if such Comity Court live clear days before the day originally appointed for the trial of such action."—(Mr. Rentoul.)
§ Question proposed, "That those words be there inserted."
§ MR. BUCKNILL (Surrey, Epsom)
said, he would ask to add this Amendment to the Amendment, which he hoped his hon. and learned Friend, as well as 987 the Home Secretary, would see fit to accept—The party applying for such a jury shall pay in any event all extra expense so caused.His reason was this: Everyone knew that whereas there was a certain expense in serving five jurymen, there would be increased expense in serving 12, and the jurymen themselves received certain fees. [An hon. MEMBER: How much?] He was not aware of the sum.
§ MR. BUCKNILL
said, he was just informed that it was 1s. 2d. each; but, at all events, he would suggest that the extra expense, whatever it might be, should be paid in any event by the person applying for the jury.
Amendment proposed to the proposed Amendment, at the end thereof to add the words—
The party applying; for such a jury shall pay in any event all extra expenses so caused."—(Mr. Bucknill.)
§ Question proposed, "That those words be added to the proposed Amendment."
§ SIR H. JAMES (Bury, Lancashire)
said, they were under some little disadvantage in not knowing the opinion of the Government before expressing an opinion. He thought there were one or two reasons why this Amendment was deserving of consideration. In Scotland the jury to try these cases was to consist of 12 men—eight common and four special—jurors, so that Scotland was to have 12 jurymen. And if the Amendment were not accepted there would only be five in England. Perhaps the Lord Advocate was of opinion that five English jurymen were equal to 12 Scotch jurymen; but possibly the right hon. Gentleman would explain, because he was quite certain the right hon. Gentleman had had some hand in drawing up the clause as to the Scotch jurymen, for he saw there was a remuneration of 5s. to be given to each Scotch juror, whereas in England each juror would only receive 4d. If they were to have 12 jurymen to try these cases in Scotland, there could be no reason why the same rule should not apply to England. It was said the 988 other night that whilst extending the liability they should take care to see that justice was done, and therefore they, had to ask, in the case of the five jurymen, who wore always selected from a small area, who had a local knowledge and great local influence, whether it would not be safer to have 12 persons rather than five? His opinion was that in a jury of five they got one strong man who gave his own judgment, influencing the other jurors, whereas if they had 12 no improper influence or personal prejudice was likely to affect them. The wisdom of their forefathers said 12 were a proper number to try cases of far less importance than these were.
§ MR. CARSON (Dublin University)
said, before the right hon. Gentleman replied he should like to point out a matter in relation to the procedure in Ireland that had escaped attention, probably in the drafting of the Bill. Everyone was agreed that the parties, in cases of this kind, ought, if they so pleased, to have their cases tried before a jury; they were special cases which, in most instances, would require a jury to determine the amount of compensation. As the Bill stood, in Ireland it would be in the power of either party to have a jury. In the County Court practice there they had a right, when the claim was over £20, to give notice for a jury to be summoned; but either party had a right to appeal from the result not to a jury, but to the Judge of the High Court, who re-heard the case and was obliged, independently of what had taken place in the County Court, to form his own opinion as to what was the proper estimate of the rights of the parties in the particular case brought before him. Of course, if the Amendment proposed was adopted it could easily be included, either that the finding of the jury—supposing the law had been correctly put—was to be final, or that it was to apply on the re-hearing before the Judge in the Superior Court. It was important there should be a power in Ireland, as in England, to have the measure of the compensation and liability assessed by a jury and not by a Judge. As to the number of jurors, he thought it would be an advantage to have the same number all round; if there were to 989 be 12 in Scotland, four of whom were to be special jurors, something of the same sort should be applied to Ireland, as it would only cause dissatisfaction if there was a different law in England and Ireland to what was proposed for Scotland.
§ MR. PAUL (Edinburgh, S.)
pointed put that in Scotland the verdict was given by the majority of the jurors, and if they increased the number in England to 12 they would increase the risk of disagreement, which was so common in actions at law, which made the whole proceedings futile and rendered all the expense to which the parties had been put nugatory. The hon. and learned Gentleman opposite said the jurors were sufficiently intelligent, and that they could not have too many of them; but he himself showed moderation in stopping at 12, and not suggesting 24. He hoped the right hon. Gentleman the Home Secretary would pause before increasing the number of jurors and indefinitely increasing the risk of disagreement.
MR. GRAHAM MURRAY (Buteshire)
Notice taken, that 40 Members were not present; House counted, and 40 Members being found present,
MR. GRAHAM MURRAY
said, they did not know what attitude the Government proposed to take upon the Amendment now before the House. But he was quite willing to fall in with the suggestion of the right hon. Member for Bury, and to join with other hon. Members in affording the Government all the assistance they could by indicating to them the current of opinion in different sections of the House. It was remarked by the right hon. Member for Bury that in the Bill as it stood the number of jurors who would try the cases was, in Scotland, 12. But perhaps the right hon. Gentleman did not notice that there were certain Amendments down in the name of his right hon. Friend the Member for Edinburgh and St. Andrews Universities (Sir C. Pearson) to reduce that number to seven. He did not know what attitude the Home Secretary was going to take upon the question, but certainly he thought the same considerations applied in Scotland as applied in England; and speaking as one who had had consider- 990 able practical experience of the conduct of cases of this sort before juries, both as representing the workman and the employer, he had certainly come to the conclusion that seven would be a much more practical tribunal than 12. What were the functions of a jury in investigating cases of this sort? They were to go into questions of fact, which sometimes were intricate, and come to a determination upon them. He would ask hon. Members who had not had experience of legal cases, but who had had experience of another class of work, when they had to discuss anything difficult or technical, which did they get on with best—a committee composed of a large number of members, or a committee composed of a small number? In the procedure which was being regulated by this Bill the object was to get so far as they could what was supposed to be justice. As his right hon. Friend beside him had shown, the divergencies of the liability that was put upon the employer by the Bill from what might have been nailed model or equitable justice originally was considerable. No doubt they had admitted that principle; still he supposed the employer, such as he was, was entitled to have justice under the strict terms of the Bill. All he could say was this: that while believing, as he firmly did, that a jury was the best possible tribunal for the investigation of criminal liability, he thought it was high time somebody should say what everybody knew as a practical matter that a jury very often, in certainly a large number of cases, was not the very best means of investigating into the result of a question of fact. He would defy any man who had had practical experience of the conduct of trials to get up in his place and deny that where they had the element of sympathy strongly elicited by the circumstances of an accident, it was not necessary to have a very large percentage in his hand if he was going to get a verdict for the defendant. In cases where they had the elements of sympathy, counsel who represented the plaintiff had a white sail and a flowing sheet, but on the other hand to get a verdict for the defendant needed a large percentage in hand. He believed that was a misfortune, and that misfortune, to a great extent, would be avoided by making the jury of a small and manageable number, because 991 they then got the certainty that there would he personal attention by every man who was on the jury in the conduct of the case. What they had to dread in a jury composed of a large number was that whilst a certain number would attend very carefully to the case the other members of the jury would not really pay that attention; they would trust to their friends, and so they would have an ultimate verdict with the elements rather of a popular Debating Society than of persons doing strict and accurate justice. He made a present of these observations to his right hon. Friend on the other side, in order to make him know that at least there were some who thought his attitude, so far as he could judge at present in the Bill, was the right one, and who should ask him to be consistent in this matter, because there was no reason why, when they came to the Scotch clause, the jury should be anything else than it was in England. There was one other matter. This Bill would introduce a large number of actions in the County Courts in England and the Sheriffs' Courts in Scotland. There was a certain person who must be considered a little bit, and that was the juror. It was a great hardship upon the jurors to be brought from their ordinary business to play at the trade of being lawyers. It was necessary they should do it; but still they did not want to bear harder upon them than was possible. In country districts, if they had a large number like 12, there would be a practical inconvenience and difficulty in getting that large number. Seven would give a perfectly good tribunal, and, therefore, whether it was seven or five, or even three, he hoped the Home Secretary would stand to the Bill in this case, and not accede to the Amendment.
§ MR. HARRY SMITH (Falkirk, &c.)
said, that he also was desirous to have uniformity in this matter, and on that account he hoped the Government would consent to allow this Amendment to pass. He hoped also the Government would adhere to the position they had taken up in the Bill, and allow Scotch juries in such cases to number 12, because he thought it was a matter of certainty that a jury consisting of only five persons would not be nearly so well able to deal with the claims of workmen under this Act as a larger jury of the number to 992 which they had always been accustomed in Scotland in civil cases. In Scotland they had always been accustomed to juries of a considerable number, and they had even to this day in criminal cases juries consisting not of 12 as in England, but of 15. That jury of 15 had never, so far as he could learn, been found to be too many in criminal cases, and he did not see why the number of 12 which they had been accustomed to in civil cases should be at all reduced. He hoped if the uniformity was the object of the Government in this matter they would prefer to level up the number of five, which was the number in the English County Courts, to the number of 12, rather than to level down the number of 12, to which they were accustomed in Scotland, to the number of five as in England.
§ MR. ASQUITH
said, he had purposely abstained from intervening at an earlier stage of the Debate, because in a matter of this kind he did not think it was a humiliating confession to make when he said that one was anxious to ascertain the general drift of opinion in the House before coming to a decision on the point. The point did not involve any principle whatever, but was merely a question of procedure. The decision he had come to was not entirely in harmony with what had just been said by his hon. Friend behind him (Mr. Smith). He thought it was undesirable to adopt this Amendment and make any change in their civil procedure. His hon. Friend who had just addressed the House had spoken of the advantages of uniformity. He could not conceive that there was any desirability in obtaining uniformity of procedure between England and Scotland in this matter. There were two essential distinctions which had to be borne in mind. In the first place, in the Sheriffs' Courts in Scotland up to the present moment juries were unknown, only existing at Quarter Sessions, as he understood it. For the first time it was proposed to introduce the jury system into the Sheriffs' Court, which was a perfectly novel procedure, and the number of the jury which ought to be adopted in Scotland was at the present moment an open question. In the second place, the Scotch, jury system was totally different from our own. In Scotland the verdict of the majority prevailed. In England—and 993 speaking as an Englishman he regretted it, because he thought it a very unfortunate practice—in England they must have a unanimous verdict, or there was no conclusion at all. In England they had a well-settled practice under the County Courts Act by which the jury should consist of live persons. He could quite understand that to propose for the first time to introduce a jury of five in Scotland might give rise to considerable inconvenience and hardship and practically give the casting vote to one person in a division, there being three against two; and where the system of majority voting prevailed, he thought they ought to have a larger constituency, a more numerous tribunal to appeal to—he would not say to obviate, because they might always have a majority of one, but to minimise, the difficulty and the possibility of that state of things arising. Obviously these considerations did not apply to the case of England. On the other hand, what were the arguments against a change of the present system? In the first place, he did not think there was any movement of opinion on the part of those who, cither as Judges had supervised, or who as counsel or solicitors had practised before, or who as parties had been litigants in the County Courts, in favour of increasing the number of the jury. A jury of five had in actual experience given general satisfaction. In the second place, they had got to consider the burden imposed upon the class from whom county jurors were chosen. They were taken from the immediate neighbourhood of the Court; they were for the most part persons in comparatively humble stations in life. For the duty of serving as a juror a very inadequate remuneration was provided for the expense and trouble a man was put to, and the area incidental to that rule ought not without good reason to be enlarged. Again, they had got to consider the expense to the parties, and he was not at all sure that this Amendment, even as supplemented by the hon. and learned Gentleman opposite, met that point. Under the County Courts Act he found it was the duty of the person who summoned the jury to deposit with the Registrar the sum of 5s. for the payment of the jury. At present that worked out to a payment of 1s. per head. Under the Amendment, in the form in 994 which it appeared on the Paper, there was no provision for the deposit of a larger sum as far as he could see, so that the only result of summoning a jury of 12 would be that this deposit of 5s. instead of being divided between five would be divided between 12, each of whom would got 5d. instead of 1s. If that was so, it would not add to the expense of the parties, but that would not be an equitable proposal. If they were to increase the number of the jury from five to 12 they ought to give the 12 jurymen the modest and not extravagant remuneration of 1s. each provided by law for the jury of five. That was a small point, but it was something. The additional cost of 1s. per head would mean a good deal, when they considered the class of persons who would be plaintiffs inactions of this kind. Finally, it seemed to him that there was a much greater probability of disagreement where they bad got a jury of 12 than where they had get a jury of five. His right hon. and learned Friend the Member for Bury had spoken of the dominating influence which one strong man might exercise upon a jury of five, but they had got to consider that with the increase of every single member to the panel of the jury the possibility of the introduction of an obstinate and unreasonable man who by his perverse disagreement from the opinion of the majority might wreck the whole proceedings and render the litigation futile. He thought that was a strong argument in favour of confining the number of the jury within the limits which experience had shown to be expedient, and against their introducing in this case the exceptional procedure which the Amendment proposed. On these grounds, on behalf of the Government, he had to ask the House to reject the proposal.
§ MR. ADDISON (Ashton-under Lyne)
was very glad indeed to have heard the observations which had fallen from the Home Secretary, and he should not himself have desired to add to them were it not that be would like to point out to the House that this was hardly a matter now of theory, but of practice and very frequent discussion almost as long as most of them had been members of the Bar. He himself, from what he had seen and heard, knew that all those acquainted with the administration of 995 County Courts, including many learned Judges, had always been unanimously of opinion that a jury of five was in itself an actually better jury than the jury of 12 they had in the High Courts and at Assizes. That had been the opinion and feeling of nearly all the Judges he had come across; and that was not a more matter of theory, but they had found it in practice. The reasons were plain. First of all, it had been suggested and supposed by many hon. Members that the County Court jurors were inferior in intelligence and position to those who attended at Assizes. That was a great mistake, for, on the contrary, from their being very often fewer in number, more easily obtainable, and their time of service being shorter—they usually being summoned for one or two cases—they actually, as a rule, got a better class of jurymen than those who had the labour of attending Assizes for a week or more at a time. Then there was another remark to be made, which was that any Judge would say that a jury of live sat there with a greater sense of responsibility, and paid greater attention to the case that was brought before them than a jury of 12. Each man felt he was trying the case, and ought to give his whole attention to it, and that he was of some importance in the case. But directly they got a number where there was not that individual sense of responsibility, they found a great many jurymen thinking of something else, not as easily kept in hand, and not giving the same attention to the case as would be given by a jury of five. In addition to that, with the latter jury, there was, of course, a far greater facility of obtaining the jurymen, and a smaller burden was imposed upon the community. Owing to our system of having both Grand Juries, Special and Petty Juries, and a multiplication of Courts, the jury system was getting extremely cumbersome in this country, and something would have to be done to cut it down and prevent it being as burdensome as now. As regarded disagreements where five people had carefully listened to a trial—and a Judge could keep five in his eye better than 12—they were more likely to agree than when they had a jury of a dozen. In the case of a dozen there was not only the chance of some of the jurors paying little attention to 996 the case, but there was also the chance of a disagreement through the action, it might be, of some eccentric man. There was another chance. Sometimes one or two recalcitrant jurors did not always show their influence by a disagreement. Sometimes they kept the jury out for a longtime; they were often for damages illusory—either too small or too large—and in the end the jurors who had paid attention to the case were compelled either to cut down or increase the damages by the eccentricity of an odd man, who in reality agreed with neither side. He repeated that there was a unanimous opinion among those best acquainted with the matter in favour of a small jury of five.
§ MR. RANDELL (Glamorgan, Gower)
pointed out that in an ordinary County Court action five clear days' notice was necessary, but in cases under the Employers' Liability Act the plaintiff had to give 15 days' notice of the action. Such a requirement had often worked great hardship to the plaintiff. These Courts were held in districts which were some distance apart, and it frequently happened that the plaintiff was not able to give the 15 days' notice for the next following Court, and for this reason he had known cases go over for four or five months. He hoped if the Home Secretary would not accept the Amendment before the House he would accept an Amendment shortening the number of days' notice which had to be given by the plaintiff.
§ MR. A. J. BALFOUR
hoped that after the discussion that had taken place his hon. and learned Friend would not think it necessary to press the matter to a Division. Though the hon. Member had received very fair and very effectual support, he must see that the general sense of the House was, on the whole, against him, and those who were directly cognisant with the practice of the County Courts were of opinion that a jury system of five worked better than a jury system of 12. There was one other point upon which he should like to make an observation, and it was this: The right hon. Gentleman had told them that the question of the number of the jury in the Scotch cases was still an open one. He hailed with very great gratification that statement of the view of the Government. He thought it would be in- 997 appropriate to argue the Scotch case or to show, as he should be prepared to show, at the proper time, that there was nothing peculiar in the Scotch law which could justify a larger number of jurors than was adopted in England. In the meantime, he hoped the Government would keep a perfectly open view upon that question, and that when they reached the Scottish part of the Bill they would show the same desire to meet the general wishes of the House as, to do them justice, they had shown in the present case.
§ Amendment to the proposed Amendment, by leave, withdrawn.
Question again proposed,
That the words 'In any action to be tried in any County Court under this Act any party thereto may require the action to be tried by a jury of twelve persons, and shall obtain such jury by giving notice in writing to the registrar of such County Court five clear days before the day originally appointed for the trial of such action,' be there inserted."—(Mr. Rentoul.)
§ MR. RANDELL
then moved to omit the words "of twelve persons," in line 3, so as to restrict the provision to the question of giving the five days' notice.
§ Question proposed to the proposed Amendment, in line 3, to leave out the words "of twelve persons."—(Mr. Randell.)
§ Question proposed, "That the words 'of twelve persons' stand part of the proposed Amendment."
§ SIR E. CLARKE (Plymouth)
said, he did not see any reason for interposing in the general system of County Courts with regard to notice to the jury in respect of this particular class of cases.
§ MR. RENTOUL
said, that the Amendment simply proposed to do what was in the Rules of the County Court at the present time.
§ MR. ASQUITH
said, that was the case. But special Rules had been made under the Employers' Liability Act of 1880, and though it was true that these Rules would now disappear, unless a statutory direction such as that proposed were given to the Judges, they might make Rules again.
§ Question put, and negatived.
§ Words, as amended, inserted.998
MR. MATTHEWS moved to add to the clause the following words:—
Any gratuity or allowance and any expense in respect of assistance, which has been or will be paid by the employer in respect of the injury to the workman shall for the purposes of this Act be treated as a payment on account of the employer's liability.
§ He pointed out that this Amendment, which originally stood in the name of the right hon. Gentleman the Member for West Birmingham, was taken almost verbatim from the provision which the Government themselves had introduced into Clause 5, which dealt with the liability of the Crown to those in its service. He could see no reason, of justice or fairness, why the privilege secured to the Crown should not be conceded to the private employer. It was quite true that in former days when notice of action was essential in order to the establishment of the workman's right to compensation, and if where that notice was not given within a limited time the workman's right was gone, it might have suggested itself to the minds of some not very honest employers to lull a workman by kindness and monetary help until the time for giving notice was past, and the man's remedy gone. But the danger did not now exist, for no notice was required, and he was unable to see any solid ground for the distinction between the Crown and the private employer. He could hardly imagine anything more distasteful than a case in which an employer having for weeks or months incurred a considerable expense on behalf of a workman injured in his service the workman should turn round and sue his employer, and no account should be taken of the voluntary assistance given. The Government had by Clause 3 agreed to treat a payment out of an insurance fund to which the employer had contributed as a payment on account, and he thought that the voluntary expenditure to which he had referred stood on precisely the same footing.
Amendment proposed, after the last Amendment, to insert the words—
Any gratuity or allowance, and any expense in respect of assistance, which has been or will be paid by the employer in respect of the injury to the workman shall for the purposes of this Act be treated as a payment on account of the employer's liability."—(Mr. Matthews.)
§ Question proposed, "That those words be there inserted."999
§ MR. ASQUITH
did not think the employers of labour, if they were consulted on the point, would have suggested the Amendment, and he did not believe they would support it. There was no necessity for such a provision, because, wherever it came out in evidence that the employer had treated his workman generously after the time of the accident, the jury would most rightly take into account that fact in assessing the damages without any statutory direction whatever, and would discount the employer's liability by the amount of humanity and generosity which he had displayed towards his workman. He thought it would be repugnant to the better feelings of employers to put a provision in an Act of Parliament giving a commercial value to their spontaneous generosity. The reason for the provision in Clause 5 was perfectly simple. The payments made by the Crown in the name of gratuities or allowances were made in pursuance of the provisions of an Act of Parliament, the Superannuation Act. That Act was not mandatory, but, as a matter of fact, those gratuities, which, of course, came out of public money, were, according to the settled practice of the Treasury, paid whenever the servant in the employment of the Crown was able to bring himself within the language of the section. It was obvious that whatever a private employer might do who was master of his own funds, a Public Department spending the money of the taxpayer must confine such allowances within the four corners of the authority given them by the Act of Parliament. There was no real analogy between the two cases, and he trusted the House would reject the Amendment as absolutely unnecessary.
§ * SIR F. S. POWELL (Wigan)
said, that reference had been made to the possibility of employers having paid sums to an injured workman in order to induce him not to bring an action. He hoped those cases were extremely rare, and he regarded the accusations as a grave and unwarrantable imputation upon employers, who, he believed, were not guilty of such a fraudulent proceeding. He thought the proposed provisions would operate to check benevolence, and would be injurious to those friendly relations which ought to exist between an employer and an injured workman.
§ * MR. TOMLINSON (Preston)
said, he thought employers would not wish to have this matter argued as one in which they were personally interested. He regretted that the Home Secretary always tried to look at these questions as if the interests of the employers and workmen were antagonistic. He would suggest that the Amendment should be adopted in the interest of the workman. There were employers who might say this—"The law has taken this question out of our hands altogether; it has made us subject to damages whether we are responsible for what has given rise to the accident or not, and therefore we will leave the workman to his own remedy and not give temporary assistance." If, on the other hand, this Amendment were introduced, that class of employer would give temporary assistance, knowing it would be taken into account ultimately.
§ MR. BODKIN (Roscommon, N.)
said, it appeared to him that the employer had already substantially all that the Amendment purported to give him.
§ MR. JESSE COLLINGS (Birmingham, Bordesley)
thought the Amendment was altogether in favour of the workman. It was desirable that payments on account on the part of the employer should be encouraged, as some time must necessarily elapse before the final award could be made by the Court. Such payments would keep the man from starvation in the interval, and perhaps even save his life.
§ * MR. PERKS (Lincolnshire, Louth)
said, he had known hundreds of cases where the employer had provided accommodation and medical assistance for his injured workman, but he had never known, in such cases a workman bring an action under the Employers' Liability Act against the employer. He had no sympathy at all with the attempt to give a cash value to the philanthropic intention of the employer.
§ SIR E. CLARKE
said, the Home Secretary had attacked his right hon. Friend who had moved the Amendment, who had only said that it might be right or wrong to take acts of benevolence into consideration, but that it could not be right to take them into consideration when the Government was the employer and not to do so when the workman was a private person. The Home Secretary, 1001 while quoting the words "gratuity or allowance" from Sub-section (c) of Clause 5, had not quoted the words "and any expense in respect of assistance," which seemed to him the important words. The Home Secretary had said there was a distinction between the Government and the private employer. He did not see any distinction at all between the two cases. In the one case the individual was the employer, and he paid out of his own money; in the other the community was the employer, and he paid out of the community's own money.
§ MR. ASQUITH
said, he had certainly argued the matter as though they were dealing with a gratuity or allowance. In his opinion they were the only important words. The words "any expense in respect of assistance" should go out if they covered anything which was not allowed to be paid under the provisions of the Act of Parliament.
§ SIR E. CLARKE
said, he hoped those words would go out when they came to Clause 5. He would suggest to the Home Secretary that to allow an employer to bring into account any allowance he had paid to an injured workman would be for the good of the workman, and not for his harm. In a case where it might be doubtful whether the employer was liable or not, and the employer had made a weekly allowance or given a sum to the widow to meet her immediate necessities it would seem fair that the employer should be allowed to bring that into account when the question of compensation was being discussed. He did not, however, think the question one of great importance. The jury would know how the master had treated the workman, and whether there was a set-off or not, they always took care that an employer who had treated his servant well did not suffer unduly.
* MR. GIBSON BOWLES
said, it seemed to him that this Amendment must necessarily be adopted in Clause 4 if the Government still stood by the words of Clause 5. It was not fair that the Government should be tarred with one brush and the private employer with another. The Government had said that the brushes wore different.
* MR. GIBSON BOWLES
Then, the Government could adopt the Amendment. By Section 3 of Clause 5 the Government would be able to modify the 1002 Warrant made under Section 1 of the Superannuation Act of 1887, and so to withdraw the gratuities and allowances hitherto given under that Warrant. If that were not the case there would be no reason for Sub-section 3, and if that did not exist there would be no distinction between the position of the Government and that of the private employer. If the Government claimed that any gratuities or allowances given to injured persons in their employ should be taken into account he did not see how a similar claim on the part of private employers could be resisted.
§ MR. A. J. BALFOUR
If I were merely to judge by the weight of the arguments urged on the other side I should certainly advise my right hon. Friend to take the sense of the House on the Amendment. The right hon. Gentleman the Home Secretary has relied on two arguments. He has said, in the first place, that the jury, as a matter of fact, would take into account any payments of the kind contemplated by my right hon. Friend. Well, I never appeared in a County Court in any capacity; therefore, I do not feel qualified to give a personal opinion on the point. But I have been informed by high legal authorities that, whether it be tine or not that juries would take these things into account, they ought not to do so, and that if the counsel for the defendant were to attempt to urge payment by that defendant as a reason for mitigating damages he would be stopped by the Judge, who would think it his duty to advise the jury to disregard such payments in their consideration of the amount of damages to be awarded. ["No, no!"] That is what I am informed. Will any lawyer contradict me?
§ * MR. BOWEN ROWLANDS (Cardiganshire)
The practice is that where a claim for damage is made, and partial compensation has been given, that compensation should be taken into account in considering what the damages should be.
§ MR. A. J. BALFOUR
In that the hon. and learned Member differs from all his confrères. ["No, no!"] It would be possible for the counsel for the defendant to urge the consideration of the amounts given in charitable relief by his client. ["No, no!"] Then where is the difference between us? I said it was not competent for the defendant's counsel to urge these payments in mitigation of 1003 damages, and that if he did the Judge would stop him. The hon. Gentleman does not challenge that. He challenged something I did not say. That being the law, what the right hon. Gentleman the Home Secretary relies on is this: that juries will do that which they ought not to do—that is to say, take into account facts brought out probably in cross-examination which should not weigh with them, and which the Judge would inform them ought not to be taken into account. That is an extraordinary argument for the Government to put forward. There was a second argument. He appeared to draw a distinction between the Government and a private individual. He urged that the Treasury, in giving gratuities under the Act of 1887, were fulfilling a statutory obligation, and therefore that the assistance given could not be classed with the purely eleemosynary contributions of private employers. I do not agree with that interpretation of the Act of 1887. If the right hon. Gentleman will inquire as to the procedure of the Treasury under the Act, he will find that they inquire into the special circumstances of each case, and behave as a generous employer would behave. If they think the case a deserving one they give a good deal; but if it is found that the person applying is not a deserving character, that fact, is taken into account in determining the amount of gratuity. If there was a statutory obligation, the character of the person receiving the grant would be immaterial. But I am told that it is not immaterial, and that the Treasury do take it into consideration. The Treasury considered themselves in the position of private employers exercising charity, at the expense of the ratepayers it is true, but nevertheless charity. The right hon. Gentleman said he was sure the employers throughout the country would be themselves the last to desire to see this charity appraised at a certain commercial value. He thought, and I think with him, that that would take all the gloss from the charitable action, and be a humiliation to the people who exercised the charity as well as to those who received it. Employers are not the only persons who have fine feelings in these matters, and if the Home Secretary declines the Amendment in the interests of the susceptibilities of the employers, I press it in the interest of the susceptibilities of 1004 the men. If you leave the Bill in its present form you will say to the workman—"You may accept the charity of the employer if you like, and at the end of a certain period you may throw all the advantages you have secured behind you, and ask for the relief which you would have been entitled to if no charity had been extended to you." The real argument—as I think the real substantive argument, so far as the workmen are concerned—in favour of the Amendment is that it will undoubtedly make the employer who is not quite certain of the character of the man injured hesitate before he embarks upon any considerable charity. At present the employer need only think of his own charitable feelings, and of the needs and sufferings of the workman injured; but if the employer has a doubt as to the character of the man—if he thinks he is a man who may be tempted by some greedy solicitor to bring an action against him—he will naturally hesitate before he supports that man, it may be for a year, and gives him medical relief on a large scale. I do not think it in the interest of the workmen to refuse this Amendment. However, the matter is not a large one, and perhaps it would not be desirable to press the Motion to a Division.
§ * MR. BOWEN ROWLANDS
said, that as a matter of fact the jury would probably take into account the amount given by way of benevolence. Any specific item, such as a doctor's bill, if paid by the employer, which would be put in the list of damages to be assessed by the jury, could be taken into account as diminishing the amount of the verdict.
§ Question put, and negatived.
§ MR. COCHRANE (Ayrshire, N.)
said he wished to move the omission of Clause 5, which would give to ordinary workmen in the service of the Crown the same rights as workmen in private employ to recover compensation for injuries sustained. A very deserving class of Her Majesty's servants—namely, soldiers and sailors—were excluded from the benefits of the Bill, and the Motion he now made was the only method open to him of calling attention to their case, an Amendment he had put on the Paper having been ruled out of Order. He would exclude those soldiers and sailors engaged on active service, having regard to the difficulty of deciding the question 1005 of contributory negligence during service, say, in the field. But the men of the Army and Navy were often employed almost as civilians, and ran the same risks as ordinary workmen. He did not think that they should be excluded from any right or power of claiming compensation for injury from the Government—injury, for instance, occasioned by defective explosives, which it could be shown had not been properly tested in the scientific departments. At present, in the event of accidents arising from such causes, these men had to rely on gratuities or allowances which might or might not be given. Soldiers were used as markers at Bisley and other meetings, and as such were subjected to considerable risks. It had happened also that obsolete guns which had been condemned had boon served out for the use of our artillery, and several men had received injury in consequence. These men were not entitled to claim compensation, but they might receive certain gratuities which, he believed, however, were not on the same scale as the compensation they would obtain under this Act. Soldiers frequently laboured side by side in dockyards with civilians. If a civilian so employed received an injury he would have a claim for compensation, whereas if a, soldier were injured he would have none. There were instances in which ball cartridges had been served out with blank ammunition. Fortunately, no one had been injured by the firing of those ball cartridges, but had anybody been hurt he did not think he could have obtained compensation. Another point to be considered was that many of the barracks were exceedingly unhealthy, and he thought it was most important that soldiers should have the same privilege as civilians would have of calling attention to such a matter. He believed that soldiers and sailors were the only subjects of the Queen who had not the privilege of taking part in a demonstration in Trafalgar Square or otherwise drawing attention to their grievances. Many of our young soldiers suffered from typhoid fever, diphtheria, and many other complaints owing to the insanitary condition of the barracks, and many of them, owing to the draughty condition of their rooms, contracted phthisis and other complaints. If those men could ventilate their grievances in the Public Press there 1006 would soon be no cause for such complaints. He could not see why the Government should make contracting out impossible with civilian employés when they made it compulsory for the soldiers and sailors whom they themselves employed. Of course, soldiers and sailors were not Trade Unionists, but he did not think the House ought to make any difference in the treatment of them on that account.
§ Amendment proposed, in page 2, line 10, to leave out Clause 5.—(Mr. Cochrane.)
§ Question proposed, "That the words 'This Act shall not apply to persons in the Naval or Military Service of the Crown' stand part of the Bill."
§ MR. ASQUITH
The hon. Gentleman who has proposed this Amendment has taken a very extraordinary course. The Government having proposed for the first time in the history of Parliament to give to the ordinary workman in the service of the Crown the same rights as a workman in the service of a private employer, the hon. Gentleman proposes to deprive the whole of the Crown workmen of this concession because we have not included another class, of which he has constituted himself the champion. The effect of carrying this Amendment would be to take away from every workman in the Arsenal at Woolwich and the dockyards all round our coast the protection which the clause would otherwise give them. I do not complain of the hon. Gentleman raising the question in this way, because the Forms of the House prevent him raising it in any other way; but I am sure that he is not making a proposal which he asks the House seriously to adopt. We propose, as I have said, to give workmen in the service of the Crown the same rights as workmen in the service of private employers. We have made one exception only to this proposal, and that is the exception of persons in the Naval and Military Service of the Crown. I think it is admitted, even by the hon. Gentleman himself, that when our soldiers and sailors are in active service this is a reasonable exception, and the whole substance of his objection is that we have not given these privileges to the soldier and sailor when not on active service. Well, what is the reason? It is that the soldier and the sailor are persons who 1007 have been placed by Parliament for disciplinary purposes in a particular position. They are subject to the provisions of the Army and Navy Discipline Acts, which in a hundred directions abridge the ordinary rights of private citizens. They are subject to a special system of law, and have to appear when a charge is made against them before special tribunals. The reason for this is not that Parliament is disposed to treat them as any less worthy of the rights and privileges of citizenship than other classes of Her Majesty's subjects, but because the exigencies of the position in which they have placed themselves could not possibly be satisfied without such a code of law. It follows that the soldier and the sailor are not in the same position as the ordinary workman. Any hon. Gentleman has only to picture in his imagination the accidents which are incident to the manœuvring of a regiment or of a ship-of-war in time of peace, as well as in time of war, and to consider the sort of risks of personal injury which such operations must necessarily involve, and then to conceive any soldier or sailor endeavouring to establish before a Court of Law that his commander or one of his comrades had been negligent in the discharge of his duties in order to see what effect such a proposal as the hon. Member makes would have upon the discipline which has been established by statutory regulations. It is not, therefore, because there are no Trades Unions in the Army that we omit soldiers from our proposals. There are no Trades Unions in the dockyards, or in the arsenals, and yet we propose to admit workmen in the dockyards and the arsenals to the privileges enjoyed by other workmen. The question of Trades Unions has nothing whatever to do with the action of the Government. I do not think that anybody who speaks with any sense of responsibility and realises the exceptional legal position, founded on considerations of public policy, occupied by soldiers and sailors will say he has come to the conclusion that it would be possible to give soldiers and sailors the same rights as are conferred on other servants of the Crown. I do not think that soldiers and sailors will seriously suffer from being deprived of the right of action under this Act. I am told that the system of gratuities and allowances, which is rigorously enforced in the cases of all soldiers and sailors 1008 injured in the service of Her Majesty, is, on the whole, a liberal system. At all events, the system exists under regulations made by the Treasury and subject to the sanction of Parliament, and if there be any ground for the contention that the existing regulations are not sufficient, the hon. Member will have an opportunity of discussing them on the Army and Navy Votes. On these grounds I think the Government could have taken no other course than they have taken. This clause is a large and liberal extension, beyond all precedent, of the rights of servants of the Crown, and as such, I think, deserves the approval of Parliament.
§ MR. A. J. BALFOUR (Manchester, E.)
I am bound to say that I think the right hon. Gentleman has proved one thing—namely, that this Amendment is not one on which it would be possible to test the opinion of the House. This difficulty arises, however, not from any fault on the part of my hon. Friend, but from the Parliamentary Rule which makes it impossible for my hon. Friend to move an Amendment to the clause itself to carry out his views, and which compels him to ask for the general motives which influenced the Government in drawing the clause before the clause itself is discussed. It seems to me that he has, by moving his Amendment, induced the Government at least to show that they are not, in dealing with this subject, animated by any general principles which they can consistently carry out through the whole scope of this Bill. I should not, under any circumstances, desire to see the Army and Navy included under this Bill, even if my hon. Friend could move the Amendment which stands in his name; but then I do not share the views of the Government on this subject of compensation to workmen. If I held their views I should vote for including the Army and Navy in the scope of the Bill. The right hon. Gentleman the Home Secretary (Mr. Asquith) says that this Bill is a great extension of the existing privileges of Government workmen, and that there is only one exception. Well, Sir, there is only one exception, but it is a tolerably large one. It is an exception which includes, I suppose, about 700,000 men, and such an exception certainly deserves consideration on the part of the Government. The right 1009 hon. Gentleman says that cases of hardship to soldiers and sailors are absolutely provided for at present. That may or may not be the case, but it does not rest in the mouth of the right hon. Gentleman to use it as an argument in favour of the Bill, inasmuch as he has steadfastly refused to recognise any provision of that kind as a reason for allowing workmen to contract out of the Bill. That was one of the right hon. Gentleman's arguments.
§ MR. ASQUITH
The right hon. Gentleman must forgive me. My argument was that soldiers and sailors had a peculiar legal status which was due to the considerations of discipline, and I did not use as an argument in favour of their exclusion from the provisions of the clause, but merely as mitigating any suggestions of hardship in consequence of their exclusion, the fact that they were already provided for.
§ MR. A. J. BALFOUR
Well, I will not discuss whether what I call an argument was an argument or a set of collateral considerations. Let me, however, point out to the House that the difficulty of excluding the Army and Navy, after you have adopted the principles embodied in this Bill, is very great, and that the Government have not got rid of the difficulty by their arguments on the present occasion. You have already provided that a sailor in the Merchant Service shall have a right to come down on his employer for compensation if, in the ordinary course of his ordinary duty, he suffers through the carelessness of a fellow-workman. There is no difference in that respect between the position of a sailor in the service of the Crown and that of a sailor in the service of a great Shipping Company. Both have to undergo the same kind of danger, and while they are at sea they have both to be under a very rigid discipline. In both cases the dangers are dangers incidental to the occupation of a sailor, and not dangers incidental to war. I can see no difference whatever between the two cases. In regard to the Army, what distinction is there between the case of an ordinary mason building a house and the case of a Royal Engineer doing the same thing? The Government employ the Royal Engineers to build barracks and for other purposes of that kind. You have been most careful to say that no 1010 amount of compensation given by the employers of a man, no wages the workman may receive, and no arrangement entered into by the workmen are to be a bar to compensation. How on earth can you refuse a similar privilege to the Royal Engineers? Though I agree that to include the Army and Navy in the clause is practically impossible, at the same time, if I held the views of the Government, I should feel that the exception of these 700,000 men was a, most invidious exception, and one which it would be very difficult in the future to maintain. There are two main differences between the case of the Army and Navy and the case of the ordinary workman? The one is, that practically the vote of the Army and Navy does not count, and the other is that the taxpayer has to pay the compensation in the one case and the private employer in the other. I do not think either of these considerations are worthy of this House, and I am sure they ought not to animate us when we come to a decision on the question. I rose to make these observations not because I thought it would be an amendment of this Bill to omit the Clause, or to include the Army and Navy in its scope, but that I might point out that the principles which the Government have themselves laid down in these Debates are of such a far-reaching character that it will, I believe, in the future be well-nigh impossible to exclude the great Naval and Military Services from the benefits which are being conferred on ordinary workmen.
* MR. GIBSON BOWLES (Lynn Regis)
said, the right hon. Gentleman the Home Secretary had used the fact that soldiers and sailors were deprived of part of their civil rights as an excuse for depriving them of other civil rights. The right hon. Gentleman contended that adequate compensation was given to soldiers and sailors who wore injured in the performance of their duty. Only a week ago he (Mr. Gibson Bowles) heard that on a ship on the North American Station a man had his arm shot off, and as a result he had been discharged from the Service with 1s. 6d. a day. He did not know whether 1s. 6d. a day was considered adequate compensation for the loss of an arm. In his opinion it would be better not to pass this clause at all than to pass 1011 it in its present shape. Every Civil servant, from the highest to the lowest grade, including members of the Metropolitan Police Force, was to have the advantage of the clause, while the soldier and sailor were to get no advantage at all from it. The hardship was very palpable in the case of a sailor, because in many instances he was employed alongside a Civil servant. A sailor might be employed in rigging a ship in the dockyard by the side of a dock labourer. If an accident happened and both men were injured, the dock labourer would be able to get his compensation, while the sailor could get none. Why was this distinction made? It was because the dockyard labourer had a vote, and the sailor practically had none. It ought not to be said that a soldier or a sailor had accepted the risk of his employment, for this acceptance was negatived in all other cases by a clause in this Bill. There had been instances of very great negligence indeed by which hundreds of lives had been lost. If an ordinary vessel under the red ensign were lost through negligence, the families of the men who were drowned would have ample compensation; but if a vessel under the white ensign were lost the Secretary of the Admiralty put on his lachrymose manner, shed a few tears on the Table, and that was the end of it. He perfectly recognised the difficulty of giving the soldier or sailor the right of action in circumstances of actual warfare, but what he complained of was the want of proper feeling shown by the Government in fastening all these responsibilities on private employers, and then taking every possible means of escaping themselves from their liabilities. When they made an exception it was in favour of men who, like the dock labourers, were pretty well able to take care of themselves by their votes.
§ COLONEL LOCKWOOD (Essex, Epping)
wished to thank the hon. Member for Ayrshire (Mr. Cochrane) for taking the part of the soldier on this occasion. He quite recognised the fact that it could be impossible in accordance with discipline to deal with the soldier or sailor as an ordinary labourer in this matter, but he thought the Government might be able to meet the case to a certain extent. When a soldier or sailor was not actually employed as a soldier 1012 or sailor, but was employed as a stonemason, or was doing the work of some other kind of workman, he thought that he should have a right to compensation for negligence. He did not wish to accuse the Government of want of feeling or anything else, and he believed they were willing to place everybody, as far as they could, on the same liberal footing. If they could see their way to introduce some Amendment to meet such cases as he had mentioned, be was certain that the Army and Navy would be grateful for the concession.
§ MR. BARTLEY (Islington, N.)
was also of opinion that when a soldier was engaged in the capacity of an ordinary workman be ought to be able to obtain compensation for negligence. A great part of the telegraph system of the country was being arranged by soldiers, and it seemed to him somewhat bard that if the State employed a soldier to do ordinary mechanic's work, it should not be responsible for any accident which occurred.
§ MAJOR RASCH (Essex, S.E.)
, as one who had voted with the Government on the whole of this Bill, said he could not help thinking that what was sauce for the goose in the case of the artizan was sauce for the gander in the case of the soldier. It seemed to him that, as his right hon. Friend the Leader of the Opposition (Mr. A. J. Balfour) had said, the vote was at the bottom of the distinction that was drawn between soldiers and ordinary workmen.
§ Amendment, by leave, withdrawn.
§ MR. ASQUITH
, in pursuance of an undertaking given on a previous occasion, moved to leave out the words "and any expense in respect of assistance." The object was to assimilate the conditions of the Government employment with those of private employment.
§ Amendment proposed, in line 21, to leave out the words "and any expense in respect of assistance."—(Mr. Asquith.)
§ Question proposed, 'That the words proposed to be left out stand part of the Clause."—(Mr. Asquith.)
§ After some conversation,
§ SIR E. CLARKE (Plymouth)
said, he was very much obliged to his right hon. Friend the Home Secretary for having met him by proposing this Amendment.
§ Question put, and negatived.
§ MR. TOMLINSON
said, he had to move an Amendment leading up to one which stood in the name of the right hon. Gentleman the Member for West Birmingham. The clause as it stood might be so worked as to be of very little benefit to the persons for whose benefit it was intended. A sum of £100 might be invested for the benefit of an infant, and probably the best thing to be done would be to make provision for its education. It was a recognised practice in the Miners' Belief Society to make a special provision for the widow, with an additional sum per week for each child until it was able to earn its own living, and it might happen that it would not be the best plan to invest the money in the Post Office Savings Bank because of the necessity of withdrawing small sums weekly or monthly.
In page 2, line 36, after the word "registrar" to insert the words "or to be otherwise secured and applied either wholly or partially, or from time to time, for his benefit."—(Mr. Tomlinson.)
§ Question proposed, "That those words be there inserted."
§ THE SOLICITOR GENEEAL (Sir J. RIGBY,) Forfar
said, he did not think sufficient reasons had been adduced for the Amendment. The law was not imperfect on this point because, under certain circumstances, a committee had the right to apply the capital of a small fund to purposes such as those suggested by the hon. Member. Jurisdiction upon the law of equity was given to the County Court Judge provided that the sum was not over £500, and, therefore, there was no need to confer that jurisdiction now. Where the person affected happened to have a sufficient income for his maintenance from any other source, the Judge would not encroach on the capital, but there were 20 or 30 contrary cases which might be suggested, all of which were provided for by the existing law. The Amendment was, consequently, altogether unnecessary. As to the words "to be secured in such manner as the Judge may think fit," he apprehended that no Judge would approve any kind of speculative investment. The Amendment would add nothing to the authority of the Judge; it was likely, on the contrary, 1014 to be injurious, and the Government could not therefore assent to it.
§ MR. COURTNEY (Cornwall, Camborne)
said, the hon. Member for Preston, in moving an Amendment which he suggested would lead up to one standing in the name of the right hon. Gentleman the Member for West Birmingham, had rather embarrassed the question raised by the latter. He did not think he had made out a case for suggesting other methods of investment than that indicated in the Bill, i.e., the Post Office Savings Bank. But this question did not so much turn on the manner in which the money was to be invested as upon the method in which it should be administered. The Bill, as it stood, proposed in effect that it should be administered according to the regulations which governed the administration of trust funds already in the Post Office Savings Bank. But the equity jurisdiction on the part, of County Courts was a matter which had to be considered. Sub-section 3 provided that no money should be paid from a fund in the Post Office Savings Bank except on the order of the Treasury to the Post-master General. That was a cumbrous and round-about-way of proceeding, but his right hon. Friend the Member for West Birmingham had an Amendment which would dispose of that difficulty, and under which small sums recovered on behalf of minors would be administered partly by the Registrar who was on the spot, and could make inquiry into the circumstances. It was further proposed to dispense with the requisition to the Treasury, and substitute for it an order of the County Court Judge. That would reduce the system of administration to one of extreme simplicity. While in that Bill they ought not perhaps to make any alteration in ordinary legal practice, it had been admitted by the House that in small cases it might reasonably and judiciously introduce variations from the established practice, and this case came within that category. The Solicitor General had suggested that this provision would invite County Court Judges to disregard the ordinary principles of equity which governed the administration of these funds, but he did not see how that would arise. He submitted that a strong case existed for the Amendment of the right hon. Gentleman the Member for West Birmingham, and he hoped that 1015 the hon. Member for Preston would withdraw his proposal. He trusted, too, that on re-consideration the Government would decide to accept the Amendment of his right hon. Friend, which would afford a simple, speely, and cheap method of procedure.
§ MR. BARTLEY
said, he should like to endorse the remarks of his right hon. Friend the Member for Bodmin. Having had a good deal to do with administering funds in these cases, he was bound to say he was of opinion that if the cumbrous machinery of the Bill was retained, a great portion of the benefit of the funds would disappear in managing them. These funds should be used for the maintenance of the children while they were young. He was strongly in favour of allowing the Registrar to act for the benefit of those who were interested in the fund, and to dispense with the reference to Loudon.
§ Amendment, by leave, withdrawn.
MR. JESSE COLLLNGS
said, he wished to move the Amendment standing in the name of his right hon. Friend the Member for West Birmingham, the object being, as had already been stated, to get rid of the cumbrous machinery set up by Sub-section 3. It was not unlikely that the money awarded as compensation to an infant would be more needed in his or her school days than at any other time, but even after leaving school it might be necessary to provide an outfit for the child on going into service or upon emigrating. In such cases it would be much better to allow the Registrar of the County Court to give the necessary order for payment of the money. It was not desirable to trouble both the Treasury and the Postmaster General in all cases in which it was desired to withdraw from the bank a very small sum, and he thought it would be to the interest of the children themselves that the procedure should be simplified by granting the necessary powers to the Registrar.
In page 2, line 36, after the word "Registrar,' to insert the words "and the Registrar may from time to time, after the assent of the Judge, expend such compensation for the education and advancement of such infant."—(Mr. Jesse Collings.)
§ Question proposed, "That those words be there inserted."
§ SIR J. RIGBY
said, it seemed to him that the supporters of this Amendment were under an entire misapprehension of the facts. In County Courts very small sums were frequently paid in under the Legacy Duty Acts to the account of infants, and in the administration of small estates amounts were carried over to the account of infants. There was nothing in this case to differentiate it from the other cases. The money would be paid to the infant at once if he were of full age and able to give a receipt, but in order to reserve it for him in other circumstances it was carried to a separate account, and under the County Court Acts, as under this Act, it might be invested in the Post Office Savings Bank. That was not necessarily the form the investment should take, because if a bettor investment could be found the Judge of the County Court had power to invest the money on some other good security. The attempt made in the Amendment was to alter the law in respect to one not very important source from which money was derived for the benefit of infants, and every other case was left untouched. He further objected to the language of the Amendment, which was unqualified. The Judge had no such jurisdiction over any of the sums mentioned. He had no authority to deal with the sums for the immediate benefit of the infant. [An hon. MEMBER: He ought to have it.] Why? Because the child was the son or daughter of a workman, why should this particular money be dealt with differently from that of another workman who might leave his child £20, £30, or £50? Nothing would be done by the words of the Amendment unless they were construed to give the Judge absolute jurisdiction, regardless of the amount of property that the infant might have, and that jurisdiction ought never to be given, because it would be a perilous and a pernicious novelty. Already County Court funds were invested in the Post Office Savings Bank in the name of the Registrar, and Parliament had provided that they should not be paid out except under an order of the Treasury. This was merely a Departmental check, but it involved no more than a little trouble and the mere cost of postage. Was it 1017 worth while then to break down a prevalent system for the sake of a few cases? There could be nothing worse than to have a special jurisdiction with regard to such funds, for mistakes would continually arise. It was far better to have a general system and to apply it to all cases.
§ MR. CARSON (Dublin University)
said, he did not think there was really any diversity of opinion as to the way in which this matter ought to be met. It was agreed that some power should exist in the County Courts to apply this money in the way which would be most beneficial. He did not understand the argument of the Solicitor General that the County Court at present had the power of so applying the money, because, if so, where was the objection to the Amendment? The only desire was to facilitate the exercise of powers which already existed in the County Courts, and therefore this was a more matter of procedure. Certainly, in the case of poor persons the application to the Registrar would be preferable, as he would be able to make the necessary inquiries locally. The only difference between those who supported and those who resisted the Amendment seemed to be the authorisation from the Treasury to the Postmaster General. But he would like to remind the House that in Ireland the procedure recommended in the Amendment had worked well. There had never been any miscarriage whatever in relation to it, and why should it not be extended to England? Surely they had better have this simple and perfectly satisfactory mode in preference to the round-about procedure suggested in the Bill.
§ SIR H. JAMES
said, he wished to make a personal appeal to the Home Secretary. He thought the Solicitor General was hardly right in his view of County Court procedure. The County Court Rules of 1889 provided that, in any action in which a sum of money had been recovered by an infant, the money might be paid into Court and invested or paid out of Court in such manner as the Judge might direct. That gave an absolute power to the County Court Judge, and did not require any order from the Treasury upon the Postmaster General. Yet they were now asked to re-enact that requirement. It was most unnecessary. What was it the Postmaster General or the 1018 Treasury intended to do, seeing that the Solicitor General had given the House to understand that they were not to exercise any discretion. This was a revival of red-tapeism, without any advantage to any one, that would lead to increased expense without any benefit to the people.
§ * COLONEL HUGHES (Woolwich)
thought every one would sympathise with any proposal which would facilitate expenditure of small sums of money on the maintenance of a child, and therefore he thought that the word "maintenance" should be put in before "education." He also thought that the Registrars in County Courts, being more generally available than the Judges, should be allowed to entertain these applications without any formal motion by the party to the Judge being required to be made.
§ MR. TOMLINSON
said, he thought it desirable that the Amendment itself should be amended by the substitution of the words "with the consent of" for "after the consent of."
§ Amendment proposed to the proposed Amendment, in line 2, to leave out the word "after," and insert the word "with."—(Mr. Tomlinson.)
§ Amendment agreed to.
§ MR. BARTLEY
said, there was another Amendment which he would suggest. The Amendment did not give absolute power to withdraw, and he would move the insertion of "withdraw and" before "expend."
§ Amendment proposed to the proposed Amendment, in line 3, before the word "expend," to insert the words "withdraw and."—(Mr. Bartley.)
§ Amendment agreed to.
§ MR. BARTLEY
There is still another Amendment necessary, and that is to insert after "compensation," "or any part thereof."
§ Amendment proposed, in line 3, after the word "compensation," to insert the words "or any part thereof."—(Mr. Bartley.)
§ Amendment agreed to.
§ Further Amendment proposed to proposed Amendment, in line 3, before the word "education," to insert the word "maintenance."—(Colonel Hughes.)
§ Amendment agreed to.1019
That the words 'and the Registrar may, from time to time, with the consent of the Judge, withdraw and expend such compensation, or any part thereof, for the maintenance, education, and advancement of such infant' be there inserted.
§ MR. ASQUITH
said, this was a matter in which his knowledge was derived from other sources, and he did not, therefore, feel himself well qualified to take part in this discussion of so highly technical a character; but, as to the 3rd sub-section, which required the assent of the Treasury before any sum was released from the Post Office Savings Bank, he thought the Amendment before the House quite unnecessary, since by the County Court Rules of 1889 it was quite clear that the Judge already possessed power to do the very thing which the Amendment was to enable him to do. The Rule to which reference was made by the right hon. Member for Bury was founded on Section 67 of the County Courts Act of 1888. It was, in his view, very undesirable to introduce an express provision with reference to a case which was already provided for. He quite understood the point as to the assent of the Treasury, and when Sub-section 3 was reached would be prepared to make a suggestion which, no doubt, would meet the case.
§ * MR. TOMLINSON
said, he had some difficulty in understanding why, if the County Court Judge had jurisdiction over a fund, an enactment specifying the manner in which the fund should be administered should be objected to. He thought it most desirable that the Amendment should be added.
§ Question put.
§ The House divided:—Ayes 108; Noes 208.—(Division List, No. 316.)
§ MR. ASQUITH
, on Sub-section 3, said, he thought the objection to requiring an order for the Treasury to release the funds would be met by adding after "Treasury" the words or "by the Judge," making the sub-section read to the effect that no part of any money invested in the name of the Registrar of any County Court in the Post Office Savings Bank should be paid out to any Registrar except upon authority addressed to the Postmaster General by the Treasury or by the Judge. The effect of those words would be—the 1020 object being to prevent the Registrar from misappropriating any money standing in his name—that the Postmaster General would have the protection of au order, either of the Secretary to the Treasury or of a Judge.
§ Amendment proposed, in page 6, line 1, at the end of Sub-section (3) to add the words "or by the Judge."—(Mr. Asquith.)
§ MR. JESSE COLLINGS
said, he thought the Amendment would meet the difficulty, and thanked the Home Secretary for saving the House the trouble of testing the feeling of hon. Members on the subject.
§ Amendment agreed to.
* MR. GIBSON BOWLES
said, it seemed to him that Clause 7 required the insertion of restrictions in the sense of the Amendment he had put dowu—namely, that, the expression "workman" should mean any person engaged in manual labour or handicraft whose remuneration or wages was or were paid or payable at intervals of not more than six weeks. This Bill was primarily intended for the relief of manual labourers, handicraftsmen and others, who were generally known as the working-classes, and not for the benefit of those who held superior positions. It contained special provisions and conditions, and was subjected to a special tribunal in order to meet the special circumstances and requirements of that class; but the definition, as it stood, would include every person who had entered into, or worked under, a contract of service. He should imagine that such a contract, express or implied, was entered into by everybody who took any service whatever; and he was not quite sure that the definition would not cover a Minister of the Crown, for he was employed under a contract of service with Her Majesty, determinable at her will. Whether that was so or not he could not say, but certainly some clearer definition was needed.
§ It being half-past Five of the clock, Further Proceeding on Consideration, as amended, stood adjourned.
§ Bill, as amended, to be further considered To-morrow.
§ House adjourned at twenty-nine minutes before Six o'clock.