§ ARBITRATION.
§ The following provisions shall apply for settling any matter which, under this Act, is to be settled by arbitration:—
- (1.) If any committee, representative of an employer;old his workmen exists with power to settle matters under this Act in the case of the employer and workmen, the matter shall, unless either party objects, by notice in writing sent to the other party before the committee meet to consider the matter, be settled by the arbitration of such committee, or be referred by them in their discretion to an arbitrator.
- (2.) If either party so objects, or there is no such committee, the matter shall be settled by a single arbitrator or conciliation board agreed on by the parties, or in the absence of agreement, by the County Court Judge, or if in England the Lord Chancellor certifies that,
31 under the circumstances of the particular district, it is not convenient that the County Court Judge should be called upon to act as arbitrator, by a single arbitrator appointed by such County Court Judge. - (3.) In cases in which the County Court Judge or an arbitrator appointed by him is the arbitrator, the workman or his representative may deliver to the Registrar of the County Court of the district in which he resides a statement of the nature of his claim, with his name and address and that of the employer, and it shall be the duty of the Registrar to give notice of the said claim to the employer, and to make the necessary arrangements for the arbitration, and give notice thereof to both parties, and all such claims may be amended by the arbitrator on such terms as to adjournment or otherwise as he thinks just, in order that the questions in dispute may be disposed of.
- (4.) Any arbitrator other than the County Court Judge shall be paid out of moneys to be provided by Parliament in accordance with regulations to be made by the Treasury.
- (5.) The Arbitration Act 1889 shall not apply to any arbitration under this Act; but an arbitrator may, if he thinks fit, submit any question of law for the decision of the County Court Judge, and the decision of the Judge on any question of law, either on such submission, or in any case where he himself acts as arbitrator under this Act, shall, subject to a right of appeal in every such' case by any party to Her Majesty's Court of Appeal, be final; and the County Court Judge, or the arbitrator appointed by him, shall, when sitting as arbitrator, have the same powers of procuring the attendance of witnesses and the production of documents as if the claim for compensation had been made by plaint in the County Court.
- (6.) In any proceedings under this Act no party or other person shall appear or be attended by counsel or solicitor except by the leave of the court or arbitrator, or on any appeal to the Court of Appeal.
- (7.) The costs of the arbitration shall be in the discretion of the arbitrator.
- (8.) Where the amount of connensation under this Act shall have been ascertained, or any weekly payment varied, or any other matter decided, under this Act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent by the said committee or arbitrator, or by any party interested, to the Registrar of the County Court for the district in which any person entitled to such compensation resides, who shall, on being satisfied as to its genuineness, record such memorandum in a special register without charge, and thereupon the said memorandum shall for all purposes be enforceable as a County Court judgment. Provided that the County Court Judge may at any time rectify such register.
- (9.) The duty of a County Court Judge under this Act shall, subject to rules of court, be part of the duties of the County Court, and the officers of the court shall act accordingly.
- (10.) Any sum awarded as compensation shall be paid on the receipt of the person entitled, and his solicitor or agent shall not
32 be entitled to recover from him, or to claim a lien on the amount recovered for any costs except such as have been awarded by the arbitrator. - (11.) The Secretary of State at the request of any committee, judge, or other arbitrator shall appoint a legally qualified medical practitioner to report on any matter which seems material to any question arising in the arbitration; and the expense of any such medical practitioner, shall, subject to Treasury regulations, be paid out of moneys to be provided by Parliament.
- (12.) In the application of this schedule to Scotland "Sheriff" shall be substituted for "County Court Judge," "Sheriff Court" for "County Court," and "act of sederunt" for "rules of court." Any award or agreement as to compensation under this Act may be recorded in the books of council and session or Sheriff Court books, and shall be enforceable in like manner as a recorded decree arbitral. Any application to the Sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by the fifty-second section of the Sheriff Courts (Scotland) Act 1876, subject to the declaration that it shall be competent to either party to require the Sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either division of the Court of Session, who, if they consider that the point involved is of general importance, may hear and determine the same finally, and remit to the Sheriff with instruction as to the judgment to be pronounced.
- (13.) In the application of this schedule to Ireland the expression "County Court Judge" shall include the recorder of any city or town.
MR. J. WILSON (Falkirk Burghs)resumed his speech, interrupted at midnight on. Monday, in support of his Amendment to insert in Sub-section (12) alter the words "either party," to insert the words "on special cause shown." He said that this was a question on which miners and mine-owners, employers and employés were entirely at one. He hoped it would not have been necessary for him to have moved this Amendment, nor would it have been had the Lord Advocate inserted such a clause as he promised at an earlier stage, giving effect to the wishes of the people of Scotland. He very much regretted that his right hon. Friend the Secretary of State for the Colonies had seen fit to depart from that very important clause which prevented lawyers being employed in connection with these cases. The right hon. Gentleman had executed a complete volte face. That clause having now been struck out of the Bill, it became necessary for him to insist that so far justice should be done to Scotland, and 33 so prevent the scandal which hall so long existed, of needy and adventurous lawyers threatening employers that if they did not compensate their workmen their cases would be taken to the Court of Session. He had supported this Bill right through, largely in consideration of the declaration of the Colonial Secretary, that this would not be a lawyer's employment Bill, but that its first object would be to avoid litigation. Resolutions had been passed at all the miners' meetings in Hamilton and Fife that in no case should cases be appealed to the Court of Session without due cause being shown, and not only the Miners and employers, but the highest legal luminaries in Scotland had declared in strong terms against trivial, paltry cases being taken into the Court of Session, and thereby involving in costs two or three times the amount of compensation at issue. He quoted the opinion of the Lord Justice Clerk in connection with a paltry case in which a mine-owner was dragged into the Court of Session. A man, having met with a slight accident, brought an action in the Sheriff Court for £195 under the Employers' Liability Act.
§ *MR. SPEAKERinvited the hon. Membcr to address himself to the question before the House, which was whether a limit should be imposed on the power of stating a case for the Superior Conrt.
MR. J. WILSON (Falkirk Burghs)said he wanted to show the vexations nature of the proceedings which might be taken under the Bill if the clause was not altered in the sense he indicated. In this case £195 was demanded, and there was an appeal to the Court to have the case tried by a jury. The jury returned a verdict for the defendants, but the victory cost them £50 for expenses.
§ *MR. SPEAKERThat really has nothing to do with the Amendment.
MR. J. WILSON (Falkirk Burghs)quoted the opinion of the Lord Justice Clerk to the injustice of trivial cases being taken from the Sheriff Court to the Court of Session. In the course of the Debates the Lord Advocate had admitted the great evils connected with this course of procedure, and promised to give effect to a remedy in the clause.
§ THE LORD ADVOCATE (Mr. GRAHAM MURRAY, Buteshire)said it was exceedingly difficult for him to give any reply 34 to most of what the hon. Member had urged without at once being ruled out of order. The hon. Member, he felt sure, would have been ruled out of order much sooner if Mr. Speaker hail been as familiar with Scottish procedure as he was with English. [Laughter.] The point to which the hon. Member had been directing his remarks was that of certain abuses consequent on the removal of cases of small value from the Sheriff Court to the Court of Session. But that would go on to-morrow just as it did to-day, even if the Amendment of the hon. Member were carried. The only point in the Amendment was whether words should be inserted qualifying the right of a person in an arbitration before the Sheriff to get a point of law stated for the determination of the Supreme Court. The only reason why he resisted the Amendment was because he thought everyone would agree that it was in the highest degree inexpedient to have in a Bill applicable alike to the two countries any differences of between them. Differences of procedure there must, of course, be; and as the House had already determined that the appeal confined to a question of law only was absolute in England, there was no reason why it should he qualified in Scotland.
§ MR. ALEXANDER URE (Linlithgow)said that the Amendment of the hon. Member, if adopted, would give rise to a discussion before the Sheriff as to whether or not there was a point of law involved worth taking to the Court of Appeal, and accordingly there would be an additional stage of procedure introduced.
Amendment negatived.
§ THE LORD ADVOCATEmoved, in Sub-section (12), to leave out the words "if they consider that the point involved is of general importance."
Amendment agreed to.
MR. PARKER, SMITH (Lanark, Partick)moved to add to Sub-section (12),—
"No action in which a claim is made under this Act shall be removed from the Sherin s Court to the Court of Session except in the manner provided by Section six of the Employers' Liability Act 1880." 35 He said that there was a grave abuse in Scotland with regard to the administration of the Employers' Liability Act which was unknown in England. In both countries it was intended under the Act of 1880 that a similar procedure should be adopted—in England the County Court, in Scotland the Sheriff Court. The procedure had worked well in England, but in Scotland a "back door" had been discovered. Under the Judicature Act a method was discovered by which it was possible to remove an action simply on claim that it should be removed, and there was no discretion on the part of the Court of Session to say what was or what was not suitable to remove to the higher Court. There was a power in the higher Court to order that if the action was one which ought properly to have been discussed in the Sheriff Court, the costs should be reduced to the lower scale. A return issued a few years ago—he understood there was another in preparation—showed that in the four years 1888–91 there were in England 711 cases, of which just 27 were moved into the High Court. In Scotland, in the same period, there were 676 cases, of which 184 were removed into the High Court. In Glasgow alone, out of 371 cases, 115 were carried up to the Court of Session. The practice was one which had been spoken of in the strongest terms by the Judges of the Court of Sessions, and he imagined that every Scotch lawyer and every person who was conversant with the working of the Employers' Liability Act in Scotland, in that House and elsewhere, could hold but one opinion about it. Very strong representations had been made in the past; and at the time when the Employers' Liability Bill of the late Government was before the House, the late Home Secretary accepted Amendments which he himself put on the Paper, and which he knew met this defect by preventing cases being carried in this way into the Court of Session. Yesterday the Attorney General spoke very warmly of the low-class agents who in England got hold of unfortunate men and set to work on them simply to run up costs. Now it was a great deal worse in Scotland, for of course there was a richer field in that country. These agents got hold of men who had been hurt—they had no bowels of mercy at all—they had no desire to 36 get compensation for the injured men, but simply to run up costs for themselves at the expense of the employer. It actually came to be a question of blackmail. Even though there might be a perfectly good defence to the case, the agent went to the employer and represented to him that it would be a great deal cheaper to settle the claim than to defend it; that to defend the case successfully would involve him in an expenditure of £200 and £300, and that it would be a great deal cheaper to compromise the matter for £100. He need hardly say that there was nothing more irritating to employers, nothing more calculated to anger them, than to be blackmailed in this way, not for the benefit of the men who were hurt, but in order that nine-tenths of the money might go into the pockets of the men who had got hold of them and ran their cases. That, he assured the House, was a matter on which there was a very strong opinion in Scotland, and which had elicited very strong representations from organised bodies. ["Hear, hear!"] There must be some way of dealing effectually with this abuse. They had dealt with various classes of actions under the Employers' Liability Act. They had, for example, cut out a number of cases—they had taken from the workman the power of using the Employers' Liability Act in those cases where he could not allege "actual personal negligence or wilful act." They had said in Sub-section B of the first Section of this Act that the employer should not be liable to pay compensation independently of the Act except in the case of such personal negligence. In that way they had altered the incidence of the Act; and, therefore, he hoped they might consider it within the scope of their present duty to amend the Act in this respect also. The proposal he had down on the Paper was limited to actions in which a claim was made under the Act. Of course it might happen that an alternative claim would be made for compensation under the Employers' Liability Act at common law; and be thought that when they were giving these additional rights they might very well take the opportunity of regulating the conduct of actions in a manner which it was perfectly certain was the intention of Parliament at the time the Employers' Liability Act was 37 passed. Such a course, he was sure, would carry universal opinion in its favour in Scotland. ["Hear, hear!] If they did not do it now, the case would be worse than ever; there would be a tendency to carry every action into the Court of Session, because there would be more security for the man's costs. He would never find himself absolutely left in the lurch, because if he failed to establish a claim under the Employers' Liability Act, yet he would get compensation under this Act, and the agent would thus be confident of getting hold of some part of the compensation and thus covering himself in the matter of expenses. He urged that this was a most important practical point. He was certain that it was fur the good of the workman that it should be introduced, and it would do more to reconcile employers in Scotland to the Act than a great many concessions which would be really at the cost of the workman. He therefore begged to move the Amendment.
§ THE LORD ADVOCATEsaid he had admitted from the beginning the great abuse of process in connection with the Employers' Liability Act in Scotland, and he did not go back in any way from that statement. The abuse arose in this way. At the time the Employers' Liability Act of 1880 was passed, a provision was made, applying both to England and to Scotland, that the actions should be raised in the County Court and in the Sheriff's Court respectively, with powers to remove to the Higher Courts upon special conditions and on certain special terms as to expenses. The persons who had charge of that Bill at the time forgot that the term "move" did not cover another operation known in the old times as appeal for jury trial, which could be resorted to under the provisions of the 14th Section of the Judicature Act of 1825; and that accounted for the abuse to a large extent. Ho was willing to do anything he could to put that right; and accordingly the hon. Member would not think he was in sympathy with a great deal of what he had said. But he was in this matter in a position in which he confessed he saw no way out. The hon. Member for Stirlingshire approached him on this same matter, with the same object in view. They had put their heads together, and 38 he was afraid they had been only able to draw an Amendment which the Speaker had ruled to be out of order. [Laughter.] He had no doubt that the Speaker had rightly ruled, and to his decision he, of course, paid proper deference. He confessed he was not himself without doubt whether he was ill order; but he thought at any rate he would try. [Laughter.] Now the reason that the Amendment was out of order was not, he thought, to be found in any want of skill in the hon. Member for Stirling-shire and himself. [Laughter.] He thought he had made it clear that the real thing they wanted to get rid of was the 14th Section of the Judicature Act. Now he understood the Speaker's view to be that in this Act they could not propose to amend Acts of Parliament which had to do with procedure in common-law actions. These actions were not touched in this Act; consequently no amount of sympathy or of verbal alteration of the Amendment would enable him to go to the root of the matter, because he could not go to the root of the matter without abolishinc, the 14th Section of the Judicature Act. Even the Amendment of his hon. Friend the Member for Partick, which the Speaker had held to be in order because it began, "no action in which a claim is made under this Act shall be removed," would, he was afraid, be inoperative. He was afraid that the objection to it would be somewhat similar to the famous chapter on snakes in Ireland—"There are no snakes in Ireland." [Laughter.] What was provided in Section I. was this—where there was negligence, the party injured should have his option; he should either come under the Bill for compensation, or if he liked he might take such common law procedure as was open to him. When he took common-law procedure, he did not make a claim "under this Act," because all that the Bill said was that if it was found in the common-law action that he had mistaken his remedy, then his action should not be dismissed as it would be dismissed in the ordinary way, but he should recover damages which would not be greater than the compensation to which he was entitled under the Bill. The House. would see that it would be impossible to tell whether the action was removable or not, because there was nothing to show it. The action when 39 brought was simply a common-law action, libelling the employer or the person for whom the employer was responsible; and it was only in the up shot, when it was found that the employer had a good defence, that its character was disclosed—and then the workman might come forward and say, "Well, I am a person who, if I had not mistaken my remedy, should have gone to the arbitrator; therefore my action must not be dismissed, and I shall have my compensation all the same." Therefore, although he had every wish to help his hon. Friend, he could scarcely accept his Amendment when he felt absolutely certain as a lawyer that it would have no effect whatever. As he had himself done his best to frame an Amendment, and had not been able to do so, he thought he must ask his hon. Friend to be content for the moment with this expression of opinion. He might also tell him this—that it was the intention of the Department presently to have a Departmental Inquiry into the working of various matters of procedure connected with the Sheriff's Court and the Court of Session; and these matters would have very early attention with a view to legislation. He could assure his hon. Friend and the House that in any form of inquiry as to the necessity for legislation this particular grievance which be had brought before the House and the country would certainly not be forgotten.
MR. PARKER SMITHsaid the right hon. Gentleman's answer was of course sufficient for the present, but might he ask his right hon. Friend the Colonial Secretary whether he would consider the possibility of making some small change even in the present Bill; if not now, then in another place, so as to make some provision against an admitted abuse. In the meantime, with the permission of the House, he would withdraw his Amendment.
§ MR. ALEXANDER CROSS (Glasgow, Camlachie)said that before the Amendment was withdrawn, he wished to say 40 one word on behalf of a large section of industrial capitalists in Scotland to emphasise what the hon. Member for Partick had said as to the great need for a change in the law. The grievance was also greatly felt by the working classes, for many of the men were not acquainted with legal forms, and they were easily beguiled into forms of procedure, the effect of which they did not foresee, and the result of which was that the compensation they would otherwise obtain was frittered away and absorbed in costs.
Amendment, by leave, withdrawn.
§ MR. ALEXANDER URE (Linlithgow)moved to insert, "Sub-sections 5 and 8 of this schedule shall not apply to Scotland."
Amendment agreed to.
§ MR. SYDNEY GEDGE (Walsall)moved an Amendment providing that awards under the Act should be excluded from the operation of the Stamp Act, 1870. He explained that unless a provision of this kind were agreed to a workman who proceeded under the Bill might have to pay as much as 35s. for stamps under the Act of 1870.
MR. CHAMBERLAINsaid that this was a question of detail of some interest. The idea of the Government had been that these arbitrations would be so informal that stamps would not be necessary, but it was evident, after what his bon. Friend had said, that stamp fees might be charged, and as it was the Government's desire that justice in these cases should be as free as possible, the point raised by the hon. Member certainly deserved consideration. He did not like to accept this particular proposal on the spur of the moment, but he would see whether some Amendment of the kind could not be inserted in the Bill in another place.
Amendment, by leave, withdrawn.
Bill to be Read the Third time upon Thursday, and to be printed.—(Bill 312.)