§
Clause 1,—
LIABILITY OF CERTAIN EMPLOYERS TO WORKMEN FOR INJURIES.
Provided that where in any such action it is determined that the compensation ought to have been claimed under this Act, the costs incurred in defending such action may be deducted from the amount of compensation so payable.
§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Sir MATTHEW WHITE RIDLEY, Lancashire, Blackpool)moved, "That this House do agree with the following Lords' Amendments": Subsection (1), paragraph (b) after "accident" insert "arising out of and in the course of the employment."
Leave out "pay such compensation" and insert "any proceedings."
After "Act" insert "as aforesaid." Amendments agreed to.
§ SIR MATTHEW WHITE RIDLEYmoved that the House do agree with the Lords in their Amendment of Sub-section (c). The Lords struck out the words "accident is solely" and inserted instead "injury to a workman is."
§ MR. J. WILSON (Durham, Mid)said this was, in the view of the Labour representatives, a most serious Amendment. After tracing by quotations from "Hansard" the various attempts to find a satisfactory form of words in which to embody the principle of the sub-section, he said that the sub-section, as finally settled in this House, was not moved by a private Member on the spur of the moment, but as the result of severe investigation and careful consideration on the part of the Government. The alteration made by the Lords was not for the benefit of the workman, but to mollify the employing classes who had brought pressure to bear on the Government. Its sole intention, as was proved by the speech of the Home Secretary to the deputation headed by the Marquess of Londonderry to the Prime Minister, the Secretary for the Colonies, and himself, was to make the Bill less detestable to the employers. He objected to the clause being put in altogether, but his objection to removing the word "solely" was that it was a direct collision with the principle of the Bill as announced by its introducers. In the speeches of the right hon. Gentleman in this House, it was distinctly stated that the intention was that litigation should be obviated, that there should be no room for uncertainty, that compensation should be made for every accident, no matter how caused, as surely as light follows the darkness. He maintained that the removal of the word "solely" widened the area and enlarged the chances of litigation and friction between employer and employed. How close would the investigation be in order to see how much a man had done towards the accident? What part was the employer to play in it. The tendency of every Amendment had been to congest the Courts, burden the arbitrations, and restrict the time in which the workmen would receive the benefit he ought to get from this Bill. If anyone would show him wherein the boon to the workman lay in this amendment that the workman had not to pay for it, that opportunities for litigation did not 1629 lurk in the clause, then his Opposition to it would cease at once. He declared, however, that the House of Commons, and not the House of Lords, were the representatives of the people, and that they had expressed the mind of the electorate on the question of compensation to workmen. He should like to know which party represented the Government on this point—the Peers or the Members of the Treasury Bench; in which House did it sit, and which voice was the true voice of the Government?
THE SECRETARY OF STATE FOR THE COLONIES (Mr. J. CRAMBEIMAIN, Birmingham, W.)I think that the hon. Member in his very energetic speech has entirely exaggerated the importance of this Amendment. [Cheers.] I must say, however, that in this he is consistent We know perfectly well from his own statement that he has not been a friend to this Bill as it was introduced, that he would gladly have seen it withdrawn, although he has not actively opposed it, and it has been his practice throughout the discussion on the Bill whenever any Amendment was proposed and accepted by the Government to declare that the acceptance of it destroyed the whole value of the Bill, such as it was. But that practice has been carried a little too far, and I am certain not only with regard to this Amendment but to others it will be found in practice that not one of them has in any substantial way injured the Bill so far as the workmen are concerned, or seriously diminished the benefits which the workmen are intended to receive. On the other hand, I wish the hon. Member had reminded the House—and it would have been much more fair—if in referring to the deputation he had pointed out that the Amendments on which that deputation laid most stress have all been rejected at the instigation of the Prime Minister and the Members of the Government. It is ridiculous for the lion. Member to make out that there is any division of opinion among the Members of the Government sitting in one House and the Members of the Government sitting in the other House. We are entirely agreed— [ironical laughter]—and the action of the Government in the other House is also the action of the Government in this House. [Cries of "Oh, oh!"] The hon. Member went on to say that Amendments have 1630 been introduced with a view to mollify the employer. But Amendments have also been introduced with a view to satisfy the requirements and desires of the workmen; and I do not think on a balance it will be found that the Amendments introduced are unfavourable to the workmen. On the contrary, I think that when we come later on to deal with them we shall find concessions made to the workmen which do very much more to compensate than anything which is taken from them; but if it had been the object to mollify the employers as a class I should say that it was not an object for which we need be ashamed. A Bill of this kind can only work satisfactorily with the good-will of both workmen and employers; and I am happy to believe that, on the whole, the employers of the country are deeply concerned in tins Measure, and they have accepted it—I will not say gladly, but loyally—and we have every reason to believe that they will carry it out in the spirit in which it was intended to be carried out. I do not complain of the history of the Amendment which the lion. Member has given, though I think he carried matters rather far when lie suggests that because the Government ex hypothesi gave serious consideration to a Bill, then every Amendment introduced must be something to make the Bill worse. We have never maintained in a matter of this kind that a Bill is introduced as if it never could be improved; and we have accepted front all parties in the House Amendments which would conduce to a just carrying out of our intention. The word "solely" was not, it is true, introduced in the early discussions of this Amendment. In the first instance there was no reference to the case of "gross and wilful negligence" of the workmen, but it was admitted not merely by the employers but also by representatives of the workmen, that it would be a monstrous thing to compensate a workman whose wilful and gross fault had brought on himself and others serious injury. To do so was really to take away one of the causes which might lead to the prevention of accidents—almost to induce accidents instead of to prevent them. In the attempt to deal with this matter, which I admit is a very complicated one, we tried one form of words after another; but we have never been able to please 1631 the hon. Member. In the first instance the proposal was that wherever an accident was due to the wilful breach of rules and regulations, or drunkenness, or gross misconduct—in all these cases the workman was not to receive compensation. The word "solely" was not introduced then; it was where the accident was attributable to those causes that the word "solely" was introduced. That was objected to because it was pointed out that it might go too far, and rules might be made, a breach of which might not constitute wilful and serious negligence. On the other hand, it was argued that where a rule was made in order to secure the safety of the workmen and the accident was due to a breach of such rule, then it ought to hold as gross and wilful negligence. We agreed to that argument, and we took out those specific words, and we left the provision in the form in which it has been amended by the other House. In the other House it was pointed out that that would clearly lead to injustice, and I do not think it can be denied even by the hon. Member. If you say you must prove that the accident is "solely" attributable, probably you will never be able to prove it, although there might have been much gross and wilful negligence. I am sure that hon. Members would not pretend that a workman in such circumstances is entitled to compensation, yet you could not say that the accident was "solely" attributable to any one cause, because an accident almost invariably is connected with more than one cause, and "solely" would bar all these cases. I will give one case. Suppose an accident were due, using the words here, to "serious and wilful misconduct" of two workmen engaged in one operation. Then, as it would not be "solely attributable" to the action of either, for both of these men are guilty, it is doubtful whether they would come in for compensation. There is evidently a blot in our work, and although it is true we gave serious consideration to the matter before proposing the provisions, yet when it was pointed out that a construction of this kind would be unfair and unjust, we thought it would be right to accept or to consider an Amendment to remove that injustice. As the section will stand with the Amendment of the other House, I do not think it 1632 makes a great difference. It takes a very great lawyer to see the exact difference between "attributable" and "solely attributable." The only fear is whether by the word "solely" we should let in the doctrine of contributory negligence, which we expressed our desire to exclude. I do not think it would be the case; at the same time, the Government are not indisposed to consider any alteration of the words which would make the point even clearer than it is at present. It is suggested to my mind that the object might be attained if we were to replace the word "solely" by the word "mainly." I think that by the insertion of that word we should get rid of the old doctrine of contributory negligence, and at the same time make it clear that where the negligence is serious and wilful, and has caused the accident, the compensation should be disallowed.
§ *SIR C. DILKEIt is too late to do that now, according to the Speaker's ruling on the last Amendment.
MR. CHAMBERLAINIf an Amendment of that kind were to commend itself to the House, the hon. Member would possibly withdraw his Amendment, and then we could move to amend the Amendment. I only throw out the suggestion because there is no use in making Amendments unless they are accepted by those for whose benefit they are intended. I may say on behalf of the Government, however, that we should be prepared to meet it.
§ *MR. SPEAKERIt would not now be in order to amend the Lords' Amendment. I have already put the question, "That the House do agree with the Lords in the said Amendment."
§ *SIR C. DILKEsuggested that the Lords' Amendment should be struck out, and that then, in another place, the Amendment in the altered form agreed upon should be inserted.
MR. CHAMBERLAINthought the suggestion of the right hon. Gentleman was the best way out of the difficulty. If the proposal of the Government to introduce the word "mainly" was accepted by the House, the Amendment would be made in another place. ["Hear!"]
§ MR. C. FENWICK (Northumberland, Wansbeck)said the introduction of the 1633 word "mainly" would be an improvement on the clause as it stood, but it would not be altogether satisfactory. The Colonial Secretary, in defending the insertion of the word "solely" in Committee of the House, said "it was an endeavour on my part on behalf of the Government to give effect to what we believe are the wishes of the workpeople." That was quite true, but now, at the instigation of the employers, that word "solely," which alone reconciled the workpeople to the sub-section, was struck out. It was well that the country should understand that. ["Hear, hear!"]
THE FIRST LORD or THE TREASURYsaid the stress laid upon the word "solely" by the workmen was quite new, for it had only arisen at this stage of the Bill. [''Hear, hear!"]
§ MR. FENWICKIt arose in the Committee stage. ["Hear, hear!"]
THE: FIRST LORD OF THE TREASURYsaid that in any case he hoped the House would not allow itself to be led into the position of supposing that every Amendment to the Bill which happened to be pleasing to the employers was therefore, and for that reason, injurious to the workmen; nor, on the other band, of supposing that every Amendment which happened to be pleasing to the workmen was therefore, and for that reason, injurious to the employers. ["Hear, hear!"] What the Government proposed to do was this— they would disagree with the Lords' Amendment; they would send back the Bill again to the Lords in the shape it lead originally reached the Lords —so far, at least, as this particular sub-section was concerned; and they would do their best in the Lords to introduce the word "mainly," so that the same object would be obtained if the Rules of the House had permitted them to make themselves the Amendment in the Lords' Amendment.
§ *MR SPEAKERThe Attorney General has suggested a method by which the Question can be dealt with in this House namely, by this House agreeing with the Lords' Amendment, in which case the words "injury to the workman is" would stand, and then by inserting after those words, as a substantive Amendment, the word "mainly." The phrase would then run, "injury to the workman is mainly."
§ MR. VICARY GIBBS, (Herts, St. Albans)who was received with cries of "agreed," said he did not agree with the suggested Amendment. He thought the Lords' Amendment was a most material improvement of the Bill. Suppose a workman by serious and wilful misconduct smoked in a mine, in winch another workman by serious and wilful misconduct had left gunpowder, and an explosion was caused, who was to settle which of the men was "mainly" responsible for the accident? The accident could not occur without the act of either of the men. He thought the introduction of the word "mainly" was a slovenly way of dealing with the matter.
§ MR. ALFRED LYTTELTON (Warwick and Leamington)suggested that "directly" and not "mainly" should be the word adopted. "Mainly" was a word absolutely unknown in this particular kind of legislation, and was far more likely to lead to litigation than the word "directly," winch was a word familiar to lawyers.
§ MR. LAWSON WALTON (Leeds, S.)said the introduction of the word "mainly" would not at all meet the difficulty. Well, he would suggest to the right lion. Gentleman that his first thought in tins matter was the best, and that the use of the word "solely" produced the result that where the master was subject to no complaint, and had done his duty to the workman, the workman should be disentitled to recover where he had been guilty of wilful negligence. It was never intended to allow the employer to escape when he was guilty of negligence. He hoped the right hon. Gentleman would re-consider his attitude to this Amendment, and allow the Bill to revert to its original form.
§ MR. SAMUEL EVANS (Glamorgan, Mid.)said there was a serious question underlying this discussion. Was it or was it not the intention of the Government to prevent the workman baying compensation if contributory negligence was proved?
THE: ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of WightIt has nothing to do with it.
§ MR. EVANSsaid chat as he understood, the word "solely" was put in precisely with the object of preventing the employer having recourse to the doctrine of contributory negligence to 1635 avoid giving the workman compensation. He agreed with his hon. and learned Friend who had just sat down, that it would be necessary if the word "solely" was inserted, and it was intended not to allow the doctrine of contributory negligence to be pleaded, to put in some words of tins kind to make the clause read:—
If it is proved that the accident is mainly attributable to the serious and wilful misconduct of the workman, and not in any degree due to the negligence of his employer, or some person for whom he is responsible.If they excluded "solely," and unless they had some such words as he suggested, then undoubtedly the doctrine of contributory negligence would be raised against the workman. He hoped the Government would stick to their own word "solely." With regard to the word "mainly," he agreed with his hon. Friend opposite; for he did not know of a single Act of Parliament of a similar nature in winch the word had been employed. If there was to be any alteration the word "directly" would be better; unless the Government meant to exclude the workman from compensation when there had been negligence on the part of the employer, they should adhere to the word they themselves put in, and ask the Lords to agree to it?
§ SIR EDWARD CLARKE (Plymouth)said the words suggested by the hon. Member who had just sat down would re-introduce the doctrine of contributory negligence, not of the workmen, but of the employer, and would at once bring about many of the difficulties which they had hoped had been got rid of. If he believed that the words adopted by the other House would have the effect attributed by hon. Members opposite, he would unhesitatingly vote to disagree with the Amendment. But he did not think so at all. With regard to the word "mainly," he agreed that it would be a great misfortune to have that word put into that Bill. ["Hear, hear!"] He was satisfied that no more fertile source of controversy and litigation could be devised than the use of a word which had no legal meaning, and which would involve the necessity of ascertaining the balance between the different causes of an accident. ["Hear, hear!"] From 1636 the point of view of hon. Members opposite, and from that of those who desired to make the Bill more effective, he held that the words which had been put in by the other House were the best words that could be adopted. ["Hear, hear!"] Consider what the words were—
If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation in respect of that injury shall be disallowed.Surely that was quite sound, and sense too. The great advantage of the clause as amended over the words which had been suggested in this discussion was this—that it put to the arbitrator the question, not of what caused the accident, but of what caused the injury. Under these words as adopted by the other House, the workman would be only deprived of the compensation if it appeared that the injury to himself was caused by his own wilful misconduct. Nobody disputed that this was sound in principle, and as he thought that the words introduced elsewhere were clearer and more effective than those introduced in that House, he confessed that he was ready to vote for agreement with them.
§ MR. H. H. ASQUITH (Fife, E.)said the legal controversy the House had enjoyed for a quarter of an hour was a specimen of what would occur before the arbitrator under the schedule of the Bill. He did not rise to multiply and amplify the subtleties already introduced into the discussion, but to try in two or three sentences to bring the matter to a practical issue. He was surprised that the Attorney General should intimate that the word "solely" was not put into the Bill originally in order to get rid of contributory negligence. The Colonial Secretary, when he proposed it, said: "In the first place it must be an act, to which the accident is solely attributable, and not any question of contributory negligence"; and they had further light thrown on the intention of the Government when the Attorney General reminded the Committee that the accident must be "solely attributable to wilful and serious misconduct which removed altogether the suggestion of contributory negligence." He agreed with an hon. and learned Member that wilful misconduct was a totally different thing from negligence; and what the 1637 Colonial Secretary had in his mind, he was sure, was not contributory negligence but contributory misconduct. What he meant was that the misconduct must not be one of a number of contributory causes, but it must be the sole cause of the accident. That was why they wanted to have the word "solely'' in the Bill. The more the alternative suggestions were discussed the less acceptable they became. As to the word "mainly," though he recognised the excellence of the intention which prompted it, it would lead to inextricable confusion. ["Hear, hear!"] And as to the word "directly," unless an accident were directly attributable to a certain act as the approximate cause, the case did not come within the clause at all. On the whole the word "solely" was by far the best expression of the intention they all had in their minds, and they would do well to disagree with the Lords' Amendment and retain that word.
THE ATTORNEY GENERALsaid the right hon. Gentleman opposite had left out a passage of his speech and had unintentionally done him an injustice. He was pointing out that contributory negligence would be got rid of by the words "solely attributable to the serious and wilful misconduct of that workman," and they were then discussing the negligence of other workmen as distinguished from that of the injured workman himself. But it was quite a mistake to speak, for the purpose they were now dealing with, of anything but the act of the workman himself. He agreed with his hon. and learned Friend (Sir E. Clarke) that the words sent down from another place were the best. There was good reason for putting in "injury to the workman" instead of "accident"; otherwise it might have been said: "You did not inquire into the personal injury the workman received; you inquired into the cause of the accident." The whole point was whether the words inserted elsewhere were sufficiently protective to the workman. He thought they were. He quite agreed with the criticism of the word "mainly." It was a word of doubtful meaning, and he would suggest that "directly" was a distinct improvement—that was, assuming the House to be not satisfied with the words as they stood.
§ MR. W. ABRAHAM (Glamorgan, Rhondda)hoped the House would forgive him if he endeavoured to show how in the case of a colliery accident the omission of the word ''solely" might be the means of preventing a workman receiving compensation. They had heard trotted out that night the old story of a man smoking a pipe in a pit, as if the act of smoking a pipe in any pit was of itself dangerous. He did not know whether hon. Gentlemen were aware that smoking a pipe in a mine was not necessarily any more dangerous than smoking a pipe in the house of Commons would be—unless there happened to be a lot of gas about—[laughter.]—and then it did become dangerous. [Laughter.] He put the case of a collier who, with the connivance and approval of his overman, went to an old barred stall for a pair of rails and an explosion occurred. The man was breaking the rules, but with consent of his superior. Would not that prevent him under this clause from receiving compensation?
MR. CHAMBERLAINpointed out that in a case in which a workman was actually told by his over-man to do something which led to an accident, it could not be called serious and wilful misconduct on the part of the workman.
MR.ALEXANDERURE (Linlithgow)said he was satisfied that no other word than "solely" or "exclusively" would exclude the doctrine of contributory negligence.
§ *MR. A. HOPKINSON (Wilts, Cricklade)said they on that side were agreed that the case which had been postulated ought to receive compensation, and it certainly would do so under the Bill as intended, although the case might be one of contributory negligence. He contended that no one thing was ever the sole cause of any other, and that there were always a number of circumstances involved, and accordingly the Amendment introduced in the other House was an improvement in drafting.
Question put, "That this House doth agree with the Lords in the said Amendment."
The House divided—Ayes, 155; Noes, 79.—(Division List, No. 347.)
1639 Lords' Amendments agreed to—
In paragraph (c) leave out "a" and insert "that," leave out "injury to that workman" and insert "that injury."
On the Question that the House do agree with the Lords in the Amendment, to substitute for Sub-section (4) the following:—
(4) If within the time hereinafter in this Act limited for taking proceedings an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the Judge, if he shall think fit, may himself proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which, in his judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. In any proceeding under this sub-section, when the Judge assesses the compensation he shall give a certificate of the compensation he has awarded and the directions he has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act.
§ *SIR MATTHEW WHITE RIDLEYsaid that he was prepared to accept the Lords' Amendment in an amended form. It would be observed that the proposed new subsection provided that in the circumstances therein referred to the action should be dismissed, and the Judge, if he should think fit, might proceed to assess the compensation himself. The words of the sub-section would seem to sanction another set of proceedings, and double proceedings it was everybody's desire to prevent. He therefore moved to amend the Lords' Amendment by substituting the words, "The Court in which the action is tried shall proceed to assess such compensation" for the words "The Judge, if he shall think fit, may himself proceed to assess such compensation."
§ MR. S. T. EVANSsuggested that after the word "shall" in the Home Secretary's Amendment the words "if the parties agree" ought to be introduced, so that a workman should not be deprived of his right to go before an arbitrator.
§ MR. C. A. CRIPPS (Gloucester, Stroud)thought that the object which the Home Secretary had in view could be effected under the Lords' Amendment as it had been sent down to that House.
THE ATTORNEY GENERALheld that the Amendment was desirable in order to 1640 make it clear that the Judge of the Court in which the action was tried was to be constituted the arbitrator without further proceedings.
§ MR. PARKER SMITH (Lanark, Partick)preferred that the Lords' Amendment should be passed as it stood, for in its present form, in his opinion, it would be more likely to discourage speculative attorneys and unscrupulous agents from Inducing workmen to proceed by action when they ought really to proceed under this Act.
§ SIR E. CLARKEalso thought that the words in the Lords' Amendment were preferable. It would be best to leave it to the Judge to determine whether, in any case that came before him, the circumstances were such that he ought in justice to the parties to assess the compensation himself.
Amendment to the Lords' Amendment agreed to; Lords' Amendment agreed to.
The following Lords' Amendments were agreed to:
In Sub-section (5) leave out "Provided that;" leave out,
the right of any of Her Majesty's Inspectors of Factories to recover penalties under section eighty-two of the Factory and Workshops Act 1878, and Acts amending the same, but if such penalty, orand insert—any proceeding for a fine under the enactments relating to mines or factories, or the application of any such fine, but if any such fine.
§
Clause 2,—
TIME FOR TAKING PROCEEDINGS.
In Sub-section (1) leave out "and" ["and the claim"] and insert "in which he was injured and unless"; after "want of" insert "or any defect or inaccuracy in"; leave out "of such notice" and insert "defect or inaccuracy," and after "such want" insert "defect or inaccuracy."
In Sub-section (5) leave out "shall" and insert "may also" after "to" insert "the employer at."
§
Clause 3,—
CONTRACTING OUT.
Lords' Amendments agreed to: Leave out Sub-section (6).
In Sub-section (1), after "compensation" insert "benefit."
Leave out "of an employer."
On the Lords' Amendment—After "whole" insert "under all the circumstances of the case,"
§ *SIR C. DILKEsaid Lord Herschell suggested these words, and they were inserted by the Lord Chancellor. Lord Herschell seemed to think the Registrar of Friendly Societies should consider circumstances expressly excluded by the Colonial Secretary, and the Lord Chancellor thought the insertion of the words "all the circumstances of the case" would meet the view of Lord Herschell. Lord Dunraven contended that every collateral advantage the workman would receive should be considered. He himself contended that the Amendment was diametrically opposed to the views they had expressed before the Bill went up to the Lords, and he moved to disagree with the Lords' Amendment.
§ *MR. ASQUITHalso objected to the extension of the cicumstances which, if the Lords' Amendment were adopted, would have to be considered by the Registrar. Perhaps the Colonial Secretary would state the precise effect of the Amendment.
MR. CHAMBERLAINsaid he was surprised that his right hon. Friends should ask him for an explanation. of words suggested by Lord Herschell. He himself regarded them as words of supererogation. He did not agree with the account of his views given by his right hon. Friend the Member for the Forest of Dean. He had always said that the Registrar should not certify any scheme in, which the contribution of the employer was not equal to his liability under the Bill. Assuming that the liability of an employer under the Bill was £1,000, his contribution to the scheme must be £1,000. He did not see any objection to the Amendment.
Lords' Amendment disagreed with.
On the Lords' Amendment: After "the" ["to the workmen"] insert "general body of,"
§ MR. J. WILSON (Durham, Mid)asked how the opinion of the general body of the workmen would be obtained.
MR. CHAMBERLAINsaid that the question as to how the opinion of the workmen was to be got did not arise. The question was whether the scheme would be more favourable to the general body of the workmen. That was clearly what the Government intended.
Lords' Amendment agreed to.
On the Lords' Amendment striking out Sub-section (4),
§ *MR. ASQUITHsaid: I confess I am somewhat surprised that no explanation should have been offered from the Treasury Bench of the grounds on which the Government ask the House to reverse the decision at which we arrived a very short time ago and to accept an Amendment entirely in a contrary sense. ["Hear, hear!] I may, perhaps, remind the House of the history of this sub-section. It was originally suggested by a supporter of the Government. It was then taken up in the particular form in which it appears in the Bill by my right 1644 hon. Friend the Secretary for the Colonies, and it was accepted in Committee by the Government and by the House without ever the formality of a Division. Upon the Report stage it was subjected to considerable discussion, but it was warmly supported by Members of the Government and finally adopted by the House by an overwhelming majority. [Cheers.] It is now going to be thrown over in deference to the judgment of the House of Lords, and the Government do not think it worth while to give us a word of explanation. That strikes me as rather a novel proceeding. [Cheers.] However, in a very few moments I will give them an opportunity of offering that explanation which I think is so much needed. May I point out, Sir, that when this clause was taken up by the Government it was described by my right hon. Friend the Colonial Secretary as a perfectly fair and reasonable proposition? I think I am quoting his exact words Well, the proposal which my right hon. Friend described as perfectly fair and reasonable is now, as we gather through the ordinary channels of information, denounced by the Prime Minister in the House of Lords as a proposal so unreasonable that he could not conceive how it crept into the Bill. [Laughter and cheers.] My right hon. Friend has said to-night that the Government were, and always had been, in perfect agreement in relation to these matters, so I suppose the apparent discrepancy between these two statements is by some subtle method to be translated into actual agreement. But the question which I think we are entitled to put, and to which I invite an answer, is this: What is it that has caused this united Government first to declare this proposition to be perfectly fair and reasonable, and then in less than three weeks has caused the same united Government to declare that it is so monstrous that no sane man would entertain it for a moment? [Cheers.] Lord Salisbury has been good enough to invent an explanation which is so extremely complimentary to me that the most elementary rules of courtesy require that I should not pass it by without notice. It appears according to Lord Salisbury that his colleagues here in the House of Commons accepted this Amendment without in the least understanding what the meaning of it was, that it was adopted by 1645 this House under the same conditions of ignorance and bewilderment, and, more terrible still, that Lord Salisbury and his colleagues in the House of Lords w ere in the very act of accepting it and abolishing contracting-out without realising what they were doing, when an illuminating phrase of mine flashed across the darkness and disclosed to them the abyss into which they were blindly stumbling. [Laughter.] It would seem that in the course of a single speech, which did not extend over more than five or six- minutes, I succeeded at one and the same time in befouling the House of Commons and enlightening the House of Lords. [Laughter and cheers.] That would be a very considerable Parliamentary achievement, and I am only constrained to disclaim credit for it b y some lingering regard for the prosaic requirements of historical accuracy. Lord Salisbury is too kind to me and, I am bound to add, too contemptuous of the intelligence of his colleagues. ["Hear, hear!"] On the Report stage of this Bill the hon. Member for Belfast moved the Amendment which is now moved from the Treasury Bench— namely, that we should mint this subsection from the Bill. The ground taken by the hon. Gentleman for his action was this, that if this clause, which practically requires the employer to guarantee the payment to the workman of the whole amount he would be entitled to under the Bill, remained in the Bill the inducement winch at present exists for contracting-out would no longer exist. My right hon. Friend the Colonial Secretary replied that it was a perfectly fair and reasonable proposition because it only went to secure that by no possibility under any scheme could the employer escape from the liability imposed on him under the Bill. I intervened in the Debate and said that I agreed with both propositions. What happened then? The right hon. Gentleman the First Lord of the Treasury rose in his place, exhibiting a warmth which he does not always exhibit in matters of this kind, and if my skin were sensitive I should still be smarting under his punishment. He said that I had travestied the Amendment, that I had not the least idea what it meant, and that so far front its being an Amendment against contracting-out it was no more nor less than the Dudley 1646 Amendment. [Cheers.] That Amendment has long ago passed into the region of legend, but if there is one Assembly in the world by which the Dudley amendment may be supposed to be understood it is the House of Lords—["Hear, hear!"]—and if there is one statesmen in this country who may be supposed to understand its meaning it is Lord Salisbury, under whose auspices it was launched on its career. [Cheers.] But what does Lord Salisbury say? He says this proposition is so monstrously unfair that he could not conceive any matt of sanity entering into a contract of that kind. Now, that is rather a curious state of facts; and, that being the history of the matter and it being an undisputed fact that, when we came to a Division, the Amendment to leave out this subsection was only supported by some sixty Gentlemen of the Party opposite. I do not well see, however anxious I may be to claim credit for it, how I can take upon myself the responsibility of having affected the action of the House of Lords. ["Hear, hear!"] Nothing new has been said or done. The new feature in the situation, the thing that accounts, as far as I can form a judgment, for the total, absolute, and irreconcilable change of attitude on the part of the Government, is that the House of Lords have discovered in the language of my right hon. Friend, the Colonial Secretary, that if tins subsection remains part of the Bill it will secure that under no possibility under any scheme can the employer escape Ins liability tinder the Bill. [Cheers.] It is because the omission of this sub-section will remove from the so-called contracting-out clause that which I. believe would have prevented it from being taken advantage of that, this proposition has been suddenly found out to be totally unreasonable, and that we are now asked to omit it from the Bill. [Cheers.] What is our position? I am speaking for my-sell, and I believe, for the great bulk of the Members on this side of the House, in relation to this question of contracting-out. Nothing can be more untrue that either I, or any with whom I have had the honour to act in tins matter, have ever professed or entertained any hostility towards mutual arrangements between employer and employed. [Ministerial laughter.] 1647 Hon. Gentleman laugh, but I have never made a speech on the subject without disclaiming any such intention. [Cheers.] What I have said, and what I do say now, is this—that, while mutual arrangements may be, and often are, excellent things, they ought to be subject to this paramount and overruling condition—that they shall not derogate from the full measure either of the employers' responsibilities on the one side or the workmen's rights on the other, imposed and conferred on them by the law of the land. ["Hear, hear!"] So long as your scheme conforms to these conditions I have no objection to it, nor has any objection been urged by any responsible statesman. [Cheers.] When this matter was before us the last time, the Secretary for the Colonies declared that he proposed the Amendment with the object, that although schemes of mutual arrangement might be made, yet it was essential to secure that the liability of the employer under the scheme should not be less than his liability under the general law. [Cheers.] That is not contracting-out. If your scheme is of that nature, that it gives the workman advantages as great, or greater, than he enjoys under the general law, what necessity is there for requiring workmen to contract-out? [Cheers.] Contracting out is needed in an entirely different class of cases. The hon. Member for Renfrewshire, in the course of our previous discussions, hit the right nail on the head when he said that no employer of labour was likely to enter into any scheme of contracting-out which would render him liable for the same amount as he would be liable to under the Bill. That is perfectly true, and represents the whole truth in relation to contracting-out. I said in the previous discussions that I believed this clause would have the effect of abolishing contracting-out. So it would; but, if you omit the sub-section you now propose to omit, I entertain the very gravest fears that this clause will preserve contracting-out in some of its worst forms, and will form no adequate remedy against it. It is quite true that the Registrar Genera! of Friendly Societies has, in the first instance, to investigate and certify these schemes. That I admit, so far as it goes, is of value. But what you have to consider is not merely the initiation, but 1648 the continued operation, of these schemes. It is perfectly possible that a scheme which, upon the face of it, at the time it was started, appeared to be actuarially sound, and to afford benefits substantially equivalent to the general law, may through a strike, a lock-out, or exceptional calamity imposing unforeseen burdens upon it, become, in a short time, wholly inoperative and may leave the workman in an infinitely worse position than he would be in if he could fall back upon the general law. That was the case provided for by the sub-section. In such a case the employer would have acted as a guarantor, and would have made good the liability which the scheme was unequal to discharge to the extent of his liability under the general law. That was a just and legitimate proposition. [Cheers.] If you do not insert it, or the equivalent of it, in this contracting-out clause, you will be depriving the workman of the great safeguard the Bill gave him when it left this House against, by some extraordinary calamity, being left absolutely without adequate provision for the misfortune which has befallen him. To leave a loophole of that kind would not be carrying out the task to which not only the Government but the House set themselves when this Bill was under discussion. I cannot help recording my emphatic protest against this complete change of front, for which no justification has been offered and which, so far as the materials before us at present are concerned, it is impossible to justify. [Cheers.] I hope the House will not accept the Amendment of the Lords, but, acting in accordance with the declarations of the Government themselves, will adopt the sub-section which was imported into the Bill by the Government in their own phraseology, and insist, so far as we are concerned, at any rate, that the workman shall not, by private and inadequate arrangements between master and man, be deprived of the great boon which this legislation would otherwise give him. [Cheers.]
MR. CHAMBERLAIN,who was received with Ministerial cheers: The right hon. Gentleman has once more repeated his well-known views on contracting-out, which, in his opinion, is a device whereby a dishonest employer may escape from the liabilities which Parliament may place upon him. I do 1649 not take that view at all of contracting-out. The right hon. Gentleman, it seems to me, told us what had happened in another place in order to repudiate, as dangerous possibly to his popularity with his own friends, the praise which Lord Salisbury had bestowed upon him. [Laughter.] I believe my right hon. Friend refuses to accept the compliment. We will not endeavour to force it upon him, but at the same time I am of opinion that it was extremely well deserved. [Laughter and cheers.] I maintain, however, that my right hon. Friend has no right whatever to come down and say that there has been a complete change of front, as if something had taken place for which he was entirely unprepared. On the Third Reading of the Bill I myself, who have been almost the author and, at all events, the strenuous defender of this sub-section, indicated very clearly to the House that in another place we should not hesitate to throw over the sub-section which we had discovered was open to an interpretation which most certainly we had ourselves never given to it. [Cheers.] Just let us see what is really the history of tins sub-section. It was introduced in Committee rather hastily, I think, at the close of a very lengthened discussion, without perhaps sufficient consideration. But upon Report the subject was again revived by a Motion by my hon. Friend the Member for Belfast. That hon. Gentleman expressed his fear that its effect would be to prevent those schemes which the Government had stated it was their desire to encourage. My chief argument was that my hon. Friend had mistaken the effect of the clause, and that really it would make absolutely no difference whatever to the liability of the employer, and if that were so it need have no effect in discouraging these arrangements. That was only my individual opinion, and when the Division was taken we found that there were at least 63 Members sitting on tins side of the House who, at any rate had not been converted by any reasoning, and who still held that this sub-section would have the effect which my hon. Friend had attributed to it. They were confirmed in that, in the most absolute language, by no less an authority than the right hon. Gentleman
opposite. [Laughter.] He—speaking 1650 with much better right than I, because he is a lawyer, and therefore much more capable of interpreting legal phraseology—declared that this clause would have the effect of putting on the employer a burden over and above what the Bill put upon him, and that therefore it would absolutely destroy contracting-out.
§ *MR. ASQUITHI did not say anything of the kind. What I did say was that it would put upon the employer, in any event, the same liability as that which the Bill cast upon him.
MR. CHAMBERLAINI thought my right hon. Friend went further than that; but, if that be so, I am totally unable to understand why, if that was all tins clause would do, he should have got up here and taunted us with destroying contracting-out. [Cheers.] Why should the employer contract out if the liability under the contract scheme is no greater than ins liability under the Bill? If it be open to the workman, in spite of an arrangement of this kind which, on the whole, is to their advantage, to have recourse to some alternative scheme, whenever in any particular case the advantage is not on their side, it is perfectly evident that the burden on the employer would he greater than under the Bill, and under these circumstances he would have no objection to contracting-out. There is no sense in the argument of my right hon. Friend, unless he means to say that under this sub-section there would be a heavier liability than the liability under the Bill. [Cheers.] When the Government found that it was the opinion of so influential and so well-qualified a critic as my right hon. Friend that this sub-section would be the destruction of contracting-out, we at once felt that it was no longer worth our while to support it. [Ministerial cheers].
§ *MR. ASQUITHAt once?
§ *MR. ASQUITHYou divided upon it.
MR. CHAMBERLAINMy right hon. Friend cannot tell what was in our mind. I can tell him that the very moment the Division was taken we made up our mind as to what course it was necessary to take, and on the very first opportunity on which it was possible to explain our views to the House—namely, upon the Third Reading—we gave no doubtful or hesitating indication of what 1651 that opinion was. [Cheers.] The right hon. Gentleman knows perfectly well that we have had two objects in reference to this matter. The first object he has himself stated in my own words — that we did not want the employer to have it in his power to escape in any degree any liability imposed upon hint by this Bill. Does the omission of the sub-section prevent that? It does not, and my right hon. Friend has admitted that, because in the previous section the Registrar General is to be satisfied that the employer's liability under the scheme is equal to his liability under the Bill. ["Hear, hear!"] They had been from the first determined that they would do nothing to discourage voluntary arrangement because they thought that where that could be carried out it would do more than statutory obligation. The sub-section which it was proposed to omit would discourage agreement to which they attached importance, and he had therefore no hesitation in agreeing with the Lords' Amendment. [Ministerial cheers.]
§ MR. J. WILSON (Durham, Mid)said he had read the speech of Lord Salisbury giving the reasons for this omission, and lie considered it was a direct insult.
§ *MR. SPEAKERreminded the hon. Member that when he quoted arguments used in Debate in the other House and answered them he was out of order.
§ MR. J. WILSON (Durham, Mid)said he saw no reason for agreeing to the Amendment made in another place. A workman who gave his work to this country had a right to be maintained when he was injured. ["Hear, hear!"] He had as much right as a man who fought for his country. He was a soldier of industry. Therefore he could not accede to what bad been done in another place The right hon. Gentleman now stated that when he spoke before he expressed his individual opinions. It struck him they were all fighting for their own ends. What had the employers to suffer? It was said that their liability would be a mere trifle. He did not see why they should accede to the Amendment.
1652 On the return of Mr. SPEAKER after the usual interval,
§ MR. CALDWELLsaid the sub-section which the House of Lords had struck out was discussed at considerable length in this House. The effect of the sub-section was that the failure of any scheme should not be detrimental to the workmen or to his relatives, in ease of his death, inasmuch as the employer was to make good any deficiency of funds which arose. He thought the House should disagree with the Lords' Amendment.
Question put "That this House doth agree with the Lords in the said Amendment."
The House divided:—Ayes, 115; Noes, 66.—(Division List No. 348.)
Lords' Amendments agreed to: Subsection (5), after "the" ["favourable to the"] insert "general body of;" leave out "by the employer"; leave out "whereupon the funds" and insert as a new sub-section "when a certificate is revoked" or expires any moneys or securities held for the purpose."
Motion made, "That the House do agree with the Lords in the following Amendment ": Leave out Clause 4 and insert the following clause:—
(a) "Where in an employment to which this Act applies, the undertakers as hereinafter defined contract with any person for the execution by or under such contractor of any work, and the undertakers would, if such work were executes by workmen immediately employed by them, be liable to pay compensation under this Act to those workmen in respect of any accident arising out of and in the course of their employment, the undertakers shall be liable to pay to any workman employed in the execution of the work any compensation which is payable to the workman (whether under this Act or in respect of personal negligence or wilful act independently of this Act), by such contractor, or would be so payable if such contractor were an employer to whom this Act applies. Provided that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section. This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by such undertakers respectively.
§ *SIR C. DILKEsaid they were in a curious position in regard to 1653 this new clause. The original clause was settled in this House by general agreement, but when it got to the House of Lords Lord Salisbury said it was wholly unintelligible. In Committee in the other House another clause was inserted, but on report Lord Salisbury said that it also was wholly un-intelligible —[a laugh], —and he accepted a series of Amendments which put the clause in the form in which it now stood. But of this, the third, form of the clause, Lord Salisbury said:—
They had done their best. There was nothing more interesting to those who had often watched the Committees in the House than to compare the prophecies which were made as to the meaning of a particular clause with the actuality which was afterwards revealed in the decision of the Judges.He did not propose to move any Amendment, because he did not feel competent to do so. He thought the clause which left the House of Commons was intelligible, but he confessed he did not understand the clause as it now stood. The last four lines of the new clause were introduced at the instance of a private Member of the House of Lords. He believed that there was a difference between the advisers of the Government as to the meaning of the proviso and the preceding three lines.
§ *SIR MATTHEW WHITE RIDLEYsaid that Lord Herschell was in agreement with Lord Salisbury as to the clause which went up from the Commons being unintelligible. The clause agreed to by the House of Commons was put into the Bill from the Bill of the right hon. Member for Fife, and was passed without notice. The clause inserted by the Lords was clearer, but it was not intended to alter the effect of the clause as agreed to by the Commons.
§ MR. UREsaid that every one knew what was intended by the clause, but the expression of the intentions was not so easy. It was impossible to draw the distinction which was attempted to be drawn by the Lords' clause between work which was "part of" and work which was ''merely ancillary or incidental to" the trade carried on by the undertakers. Would, for instance, the clause apply in a coal mine in respect of the several classes of work which were not directly concerned with winning coal? Perhaps the first part of the Lords' clause was more 1654 intelligible than that agreed to by the House of Commons, but the proviso ought to be left out.
§ MR. CRIPPSsaid the object of the proviso was simply to make it clear that, where the work was not really the work the head employer, the head employer should net be liable to the men. In such cases —as, for instance, where a builder was called in for some incidental purpose—the men's remedy should be against their real employer. The proviso was really in the interests of the workmen, and not of the employers. Since the original clause was agreed to, the word "undertakers" had been defined, which made clearer drafting possible.
§ SIR W. HARCOURT (Monmouthshire, W.)said that the House was in an awkward position. The House sent up to the Lords a clause on this important point with all the consideration winch could be given to it by the Treasury Bench and their able law officers. Lord Salisbury found that clause to be wholly unintelligible. Then the legal advisers of the Government in t he Lords devised another clause, with a proviso for which the Government advisers in neither House were responsible. The assistance of the Attorney General was desirable on this point.
THE ATTORINEY GENERALsaid that no one would deny the first part of the new clause to be an improvement. When the question was first being discussed in the House, he said that on such a difficult point he should be glad to have the assistance of the drafting of the right hon. Member for Fife in the Bill of 1893. Though he pointed out objections to the right hon. Member's clause, he thought it was at the time the best that had been devised. As to the clause put in by the Lords, the first sub-section was framed by the Lord Chancellor and Lord Herschell, and undoubtedly the earlier part of this clause expressed more clearly the position of the sub-contractor and the head employer. The proviso was to a large extent inspired by Lord Herschell. It was clear that the clause ought not to apply where the work done by the subcontractor was not part of the "undertaker's" business. For instance, the painting of railway-station rooms was 1655 purely ancillary to the business of a railway company. He would not say that a question might not arise upon the words "ancillary and incidental to;" but the clause was not in the interests of the employers.
§ MR. B. HALDANE (Haddingtonshire)said that the original clause as in the Bill of 1893 was the result of prolonged conference between those responsible for the Bill and the Government draftsmen. What was the meaning of the words "merely ancillary and incidental to"? He had not the slightest idea. These words seemed to have been put in without much examination and without much consideration, and what the effect would be on the clause it was extremely difficult to say. As far as one could judge, they would cut down the operation of the main part of the section as it stood. In his judgment it was extremely undesirable that these words should be added; it would be much better that the original clause as drafted here, after careful consideration, should be reintroduced, or else that the proviso should be dropped out.
§ MR. G. WHITELEY (Stockport)thought that though the wording of the proviso was not so clear as that which he had the honour to get introduced when the Bill was before the House of Commons, yet the four words were perfectly intelligible. There were a great many processes, such as whitewashing and painting engineering and boiler works, in which sub-contractors were employed with whom owners of the factory had nothing to do. The responsibility was entirely to the sub-contractor, and it was unreasonable to suggest that the employer who had nothing to do with the work should be responsible to the workman. There was a case in connection with cotton factories where the owner of the factory ought to be liable. That was the case of the minder of the spinning machines, who had people under him, and they were responsible to and paid by him and not the owner of the factory. Nevertheless, that being a part of the business and within the scope of the trade of a cotton factory, the mill-owner ought to be responsible for any injury or accident that occurs, but painting and whitewashing and so on were only ancillary and incidental to and not within the scope of the trade or business.
§ MR. PARKER SMITHsaid it seemed eminently reasonable that where you employed somebody as a sub-contractor in your own line of business there you should be liable for accidents, but otherwise if it was somebody outside. He thought the proviso would be better if those words were left out—"merely ancillary or incidental to."
§ MR. SYDNEY BUXTON (Tower Hamlets, Poplar)urged the Home Secretary to accept the suggestion of the hon. Member below the Gangway.
§ *SIR MATTHEW WHITE RIDLEYsaid he would do his best to have the words left out when the Bill went back to another place.
§ SIR W. HARCOURTNegative the clause here and allow it to be put back in the House of Lords with the words altered.
§ MR. C. B. RENSHAW (Renfrewshire, W.)hoped the Government would not yield to the suggestion. In the House of Lords, Lord Herschell expressed the strongest opinion that there ought to be a provision to meet sub-contractors who were outside the ordinary scope of the business.
§ SIR W. HARCOURTWe are all agreed; it is only a question of words. AIR. RENSHAW said that as an employer he felt he should be protected when he called in some outside contractor to do some work about his mill, and feeling that he did not want the words taken out.
§ MR. W. E. M. TOMLINSON (Preston)thought he knew the reason for introducing these words. It was to insert the case of limited companies, which usually took very wide powers in the memorandum of association, and unless some guarding words were put in they might be held liable, although they employed an outsider to do something which was altogether outside the main purpose for which the company was established.
§ MR. J. COLVILLE (Lanarkshire, N.E.)as On employer of labour, had a conviction that the words in question would only complicate matters by raising a doubt in the mind of an injured workman as to whether the sub-contractor was the proper person to sue, and consequently lead to litigation.
§ MR. SYDNEY GEDGE (Walsall)hoped the Government would stand by the Amendment of the other House. The 1657 words were little more than surplusage, and if the House rejected the words it would only increase the difficulty of getting the Bill through.
MR. PRITCHARD MORGAN (Merthyr Tydvil)understood that the Bill intended to abolish contributory negligence, but in the case of a mine a contract might be given to sink a shaft, to break the coal, or to raise it to the surface, and as those sub-contractors might be men of straw, the mine-owner would not be liable.
Lords' Amendment agreed to.
§
Clause 8,—
COMPENSATION TO WORKMEN IN CASE OF BANKRUPTCY OF EMPLOYER.
Where any employer becomes liable under this Act to pay compensation in respect of any accident, and is entitled to any sum from insurers in respect of the amount due to a workman under such liability, then in the event of the employer becoming bankrupt, or making a composition or arrangement with his creditors, or if the employer is a company, of the company having commenced to be wound up, such workman shall have a first charge upon the sum aforesaid for the amount so due, and the Judge of the County Court of the district may direct the insurers to pay such sum into the Post Office Savings Bank in the name of the Registrar of such court, and the provisions of the first schedule hereto with reference to the investment in the Post Office Savings Bank of any sum allotted as compensation shall apply to any sum so directed to be paid.
(2.) In the application of this Act to Scotland, the words "have a first charge upon" shall mean "be preferentially entitled to.
§ *SIR MATTHEW WHITE RIDLEYmoved to agree with the Lords' Amendments: In Sub-section (1) leave out "of the district"; after "and" insert "order the same to be invested or applied in accordance with"; leave out from "compensation" shall apply to any sum so directed to be paid," and insert "and those provisions shall apply accordingly."
In Sub-section (2) leave out "Act" and insert "section."
§
Clause 6,—
RECOVERY OF DAMAGES FROM STRANGER.
Where the injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that
1658
person to recover damages, or against his employer for compensation under this Act, but not against both, and if compensation be paid under this Act, the employer shall be entitled to be indemnified by the said other person.
§ After "injury" insert "for which compensation is payable under this Act."
§
Clause 7,—
APPLICATION OF ACT AND DEFINITIONS.
"Railway" means the railway of any railway company to which the Regulation of Railways Act 1873 applies, and includes a light railway made under the Light Railways Act 1896; and "railway" and "railway company" have the same meaning as in the said Acts of 1873 and 1896.
"Factory" has the same meaning as in the Factory and Workshop Acts 1878 to 1891, and also includes any dock, wharf, quay, warehouse, machinery, or plant, to Which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895, and every laundry worked by steam, water, or other mechanical power.
"Mine" means a mine to which the Coal Mines Regulation Act 1887 or the Metalliferous Mines Regulation Act 1872 applies.
"Quarry" means a quarry under the Quarries Act 1894.
"Engineering work" means any work of construction or alteration or repair of a railroad, harbour, dock, canal, or sewer, and includes any other work for the construction, alteration, or repair of which machinery driven by steam, water, or other mechanical power is used.
"Undertakers" in the case of a railway means the railway company; in the case of a factory, quarry, or laundry means the occupier thereof within the meaning of the Factory and Workshop Acts 1878 to 1895; in the case of a mine means the owner thereof within the meaning of the Coal Mines Regulation Act 1887, or the Metalliferous Mines Regulation Act 1872, as the case may be, and in the case of an engineering work means the person undertaking the construction, alteration, or repair; and in the case of a building means the persons undertaking the construction, demolition, or repair.
"Employer" includes any body of persons corporate or unincorporate and the legal
"Workman" includes every person who is engaged in an employment to which this Act applies, whether by w ay of manual labour or otherwise, and whether Ms agreement is one of service or apprenticeship or otherwise, and is expressed or implied, is oral or in writing. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants, or other person to whom compensation is payable.
"Dependants" mean—
§ Lords' Amendments: In Sub-section (1) after "is" ["is being constructed"] insert "either"; leave out "demolished," and after "scaffolding" insert "or being demolished"; leave out "demolition or repair" and insert "repair or demolition."
§ In Sub-section (2) leave out "demolition or repair" and insert "repair or demolition"; leave out "or immediately prior to"; leave out "or immediately prior to."
§ Lords' Amendments agreed to.
§ *SIR MATTHEW WHITE RIDLEYmoved to agree with the Lords in the insertion of the following new sub-section:—
(3.) A workman employed in a factory which is a shipbuilding yard shall not be excluded from this Act by reason only that the accident arose outside the yard in the course of his work upon a vessel in any dock, river, of tidal wave near the yard.
§ MR. SYDNEY BUXTONasked whether the Government did not think it desirable for the sake of clearness to leave out the words "near the yard." He moved the omission of these words.
THE ATTORNEY GENERALsaid it had been pointed out by the hon. Member for Tyneside that the case to meet 1660 was that of riveting begun on the ways and being continued in the adjacent water. If the words "near the yard" were omitted the case of a vessel being taken into a different port would be included, and this contemplated a different state of things. They ought not to include the case of ships generally. The Government felt that they had carried out the letter as well as the spirit of what they promised to do—namely, the continuation and completion of the same work on vessels before they were able to go out on their voyage.
§ MR. J. SAMUEL (Stockton)said that this sub-section would exclude a very large number of men from the benefits of the Bill. What they wanted to meet was this. In a large number of rivers, ships were taken away from the shipyards to be engined and completed. If the words "near the yard" were left in, a large amount of litigation would ensue, because there was no definition of "near." There ought at least to be some definition as to how near a shipyard a ship ought to be.
§ *SIR MATTHEW WHITE RIDLEYreminded the House that on the representations of hon. Members opposite the Government had drawn up these words hoping and believing that they would cover the cases which had been specified. The sub-section did not mean that the ships should be near the yard, but in the tidal waters, docks, or rivers, contiguous to the yard.
§ MR. STUART-WORTLEYsaid the object of the words was to. prevent shipbuilders being liable for compensation for what. might be called maritime accidents; but he did not think they were the very best words for the purpose. What should be done was to restrict the liability of the employer in those cases not in regard to the place in which the accident happened, but that in regard to the nature of the accident.
§ MR. T. T. BUCKNILL (Surrey, Epsom)referred to the case of a ship which was behind time and which was taken away to be delivered, with the workmen on board to complete her on the way. Such a ship would be still under the control of the builder; and it would be a great injustice to the work men who were taken away on board her 1661 if, in the case of an accident, they should have no claim for compensation. He thought that words should be introduced to cover such cases.
§ MR. PARKER SMITHsaid that a ship built on the Clyde might he taken round for delivery to some port in the south of England with workmen still engaged in completing her. To meet such cases he suggested the use of the words—
in completing a vessel launched from that yard, and still under the control of the builder.Those words would bring within the operations of the Act cases where the same men were employed on board the ship by the same employer under similar conditions.
*MR. J. CARVELL WTLLIAMS (Notts, Mansfield)said that the Attorney General objected to the Amendment from a fear that it would include seamen; but the clause was distinctly limited to workmen employed in shipbuilding. It appeared to him that according to the punctuation of the clause the limitation they had been discussing applied only to tidal waters near to the yard, and that the river, or the dock, might be anywhere.
MR. CHAMBERLAINMay I appeal to the House to take a decision on this question, which I think has been sufficiently discussed? We have made in this Amendment a concession undoubtedly in the interest of the workman, since we have included a class of workmen who were not included in the original draft of the Bill. I must say it is hardly encouraging to find that hon. Members, when we have granted what they ask by way of amendment, should make it a basis for a further claim. [Cries of "No!"] Yes, it is a further claim. At this stage of the Bill it is not, possible to discuss every conceivable imaginary case that is put, before us for inclusion in the Bill. An hon. Gentleman opposite has even given us a case which he himself tells us cannot possibly arise—[laughter]—and we are asked at a moment's notice to elaborate a clause that shall apply to cases which T will undertake to say will not happen once in a hundred years.
§ *MR. ASQUITHsaid he should like the House to consider for a moment what was the point as to which the right hon. Gentleman said lie Government had made a concession. It was this: As they all knew, the work of shipbuilding could not always, from the nature of the 1662 case, be completed within the yard itself. The incomplete ship had to be moved away a certain distance, and the same men who had been employed in the yard under the same employer, and exposed to the same risks, had to accompany the ship until she was completed. The Government had admitted fairly and properly that it was not right that the liability of the employer should be confined to the time when the workman was within what he might call the precincts of the yard itself. It was well known that it was part of the ordinary course of business that although the ship was sometimes floated out into a river or dock some distance from the yard, very often the work of completing her went on during the whole course of her preliminary voyage, say from the Clyde to London.
§ *MR. ASQUITHI thought we were trying to deal with this matter in a business spirit. ["Hear, hear!"] I must say that such an interruption does not tend to facilitate the discussion of this matter. [Load Opposition cheers.]
MR. CHAMBERLAINI beg the right hon. Gentleman's pardon, and I am sorry that he has misunderstood me. I do not think it a ridiculous interposition at all. What I want to point out is, that we cannot deal with every exceptional case; and it would be just as reasonable to claim if—as sometimes happens to my knowledge—persons are sent with a ship the whole of the first voyage for the purpose of completing details of construction—it would be just as sensible to claim that these workmen shall come under the bill during the whole of that time, as to claim that they shall come under the Bill when the ship is being taken from one port to another.
§ *MR. ASQUITHremarked that the case put by the right hon. Gentleman might occur once in a hundred or a thousand years—[laughter]—and when it did occur he did not see why it should Trot be included in the What he was speaking of when he was interrupted was what happened in the ordinary course of business. He was speaking of what was within the knowledge of a great number of practical men, and of what he knew something about from his experience us a professional man. It was a very 1663 common fact that a ship, while in the course of completion, had to be taken far beyond the dock, river, or tidal water, and he could not see why the employer's liability should cease when that occurred. He could not see why the Government should not accept the Amendment which had been suggested, which would make the test of liability not one merely of locality. They should make the test not one of locality, but whether the man was still actually employed on the work for which he was engaged, and whether the ship still remained under the control of the shipbuilder who employed him. If they made the liability extend until the ship was handed over to the purchaser for whom she was intended, that would be a far more logical way of dealing with the question, and it would carry out the intention of hon. Members on both sides of the House that this liability should not be artificially limited to the shipbuilding yard or its immediate vicinity. He hoped the Government would accept the Amendment, and would feel that in doing so they were not unduly extending the liability of the employer. [" Hear, hear!"]
§ MR. G. C. T. BARTLEY (Islington, N.)stated that in the case of ships of war built in this country it often occurred that during their trial trips they were practically in charge of the men who had been employed in building. An instance occurred a year or two since of a ship sent out for trial in this way, when, owing to some flaw, her engines blew up and several men were killed. The words "near the yard" would exclude such a case. Surely, if they put anybody in, cases of that kind ought to be included. The words ought to be struck out if the clause were to do substantial justice.
§ MR. W. R. BOUSFIELD (Hackney, N.)said the spirit and tendency of the Act was to make compensation dependent not on the locality but on the employer. He ventured to think that the point of locality in this clause was a very small one; and he should like to appeal to the Government—who had shown themselves very ready to meet the workmen's representatives on all practical points— to leave out these words. The employer would be still amply guarded by the fact that the workman would only be entitled 1664 to compensation as long as he was in his service.
§ *SIR CHARLES CAYZER (Barrow-in-Furness)said that frequently a ship was taken to some distance from the yard in which she was built, to receive her engines and complete her equipment, and named cases where this was done. If accidents happened during that stage of the work the men engaged on her in the employment of the builders of the hull or machinery should be entitled to compensation, and as the clause now stood they would be excluded. He thought the words "limiting the locality" should be struck out, and he would support the Amendment to that effect.
§ MR. RADCLIFFE COOKE (Hereford)said a great many appeals had been addressed to the Government from both sides of the House. He could understand that appeals from the opposite side would not receive quite the same attention as appeals from the Government side; but surely hon. Members, like himself, when they appealed to the Government on this point, ought to receive some reply from some Member of the Government. If all the words of limitation were taken out of the clause, and the clause were simply reduced to this—"in the course of his work upon such vessel"—that would meet the case. ["Hear, hear!"]
§ SIR W. HARCOURTsupported the suggestion made by the hon. Member (Mr. Cooke). The Amendment originally moved by his hon. Friend would not altogether carry out the object he had in view. What they wanted was to get rid of all these words as to locality. If they left out all the words after "vessel" in the last line, thus making the clause apply to all persons in the same employ and on the same work until the completion of the vessel, their object would be attained. ["Hear, hear!"]
§ MR. SYDNEY BUXTONsaid he would withdraw the Amendment in order that some other Member might move another Amendment which would better meet the case.
Amendment, by leave, withdrawn.
§ SIR W. HARCOURTproposed to amend the Lords' Amendment by leaving out the words "in any dock, river, or tidal water near the yard."
MR. CHAMBERLAINsaid he did not object to the principle which hon. Members had expressed in connection with this matter, but he had the greatest doubt whether the House was wise, on tale spur of the moment and at the last stage of the Bill, to move Amendments the consequences of which perhaps no one could foresee. He really thought that hon. Members behind him who volunteered these Amendments on a most complicated subject should consider whether it was wise to press them against the opinion of those who were responsible for the Bill, and who thought that they might lead to very dangerous results. ["Hear, hear!"] In the case of a ship not completely finished which was sent upon its voyage, it might be to Buenos Ayres, Australia, or the most distant parts, and on which, in order to complete the details, men in the employ of the shipbuilder were sent out, under the Amendment of the right hon. Gentleman the Leader of the Opposition, such men would during the whole of that time he under the protection of the Bill. The House had decided not to include seamen in the Bill precisely because the employer could not have control over them when there were these great distances and long intervals of time, and yet on the last stage of the Bill it was now proposed by a side wind which would introduce this provision, which in many cases might be the cause of great injustice to the employers. ["Hear, hear!"] He ventured to say it might also be the cause of great inconvenience in trade. He did not presume at a moment's notice, while thinking on his legs, to be able to deal with an intricate question of this kind, but he did warn the House against forcing on the Government an Amendment which he did not think could possibly have been sufficiently considered.
§ SIR FRANCIS EVANS (Southampton)hoped the Government would see their way to meet the point of the right hon. Gentleman.
§ MR. BUCKNILLthought the Amendment might be improved if after the word "work" the words were added—
in completing a vessel launched from that yard and still under the control of the employer.He thought it was just that the builder should be liable for injuries to his work- 1666 men only so long as they were under his control.
§ MR. SYDNEY BUXTONthought the House was generally agreed as to what they wanted. The objections of the right hon. Gentleman were practically covered by the definition of a shipbuilding yard contained in the Factory Act of 1878.
§ *MR. STUART-WORTLEYsaid the words of the Factory Act did not apply. What they wished to protect the shipbuilder from was being made to pay for the maritime risk occasioned by the want of navigating skill on the part of some other person.
§ *MR. ASQUITHsaid that it was not intended to provide against maritime risks or perils of the sea to which seamen were ordinarily exposed.
§ MR. PARKER SMITHhoped the Colonial Secretary would accept some such form of words as the hon. and learned Member for Epsom had suggested. He held that until the builders had delivered a ship over, and as long as they had control over her, the workmen upon her should be entitled to receive compensation. It was often the case that the builders retained control over a vessel for a certain time after she left the shipbuilding yard. As soon as the ship was delivered over the builders ought no longer to be liable, a different set of circumstances arising.
§ SIR W. HARCOURTasked leave to withdraw his Amendment, and was proceeding to explain his reasons for so doing when he was met by Ministerial cries of "No!" and "Spoke!"
§ *MR. SPEAKERThe right hon. Gentleman cannot speak if leave be refused.
§ MR. J. SAMUELwished to say that he could not agree to the Amendment proposed by the hon. and learned Member for Epsom.
§ *MR. SPEAKEROrder, order! The suggested Amendment of the hon. Member for the Epsom Division is not before the House. [Laughter.]
§ VISCOUNT CRANBORNE (Rochester)said that it was clear that they were in a state of great confusion. He protested against the production of these elaborate Amendments at the last moment. ["Hear, hear!"] He represented a constituency which was largely interested in this subject, and in the name of his constituents he protested 1667 against his being asked to discuss Amendments which he had not seen, which were not printed, and the purport of which he had not grasped. Such a way of doing business was all very well in Committee or at the Report stage, but now they had arrived at the last stage of the Bill, and would have no opportunity of revising any stupid blunder which might be perpetrated. ["Hear, hear!"] He trusted that the Government would not be induced by the pressure put upon them to accept Amendments which were sprung upon the House. [" Hear, hear!]
§ *SIR C. DILKEwished to know who were the persons whom the noble Lord attacked. ["Hear, hear!"] The noble Lord had made a most vigorous attack upon somebody, but he did not know upon whom. The noble Lord apparently found fault with hon. Members because their Amendments were not printed, but the Lords' Amendments had only been printed that morning, so that it was impossible that the Amendments to be moved in. that House could be in print. He was in favour of the original Amendment which had been withdrawn. [Laughter.] He recognised that there was no possibility of their agreeing now upon a form of words which would satisfy the majority of the House, but he appealed to the Government to make some change in the Lords' Amendment so that the other House might have an opportunity of reconsidering the Amendment, and altering it in accordance with the views expressed by the majority of the House of Commons.
§ SIR J. FERGUSSON (Manchester, N.E.)thought that the Amendment of the right hon. Member for West Monmouthshire would be satisfactory if the following words were added to it, "Launched from that yard and while under tine control of the employer."
Question put, "That the words proposed to be left out stand part of the Lords' Amendment."
The House divided: —Ayes, 143; Noes, 80.—(Division List, No. 349.)
Lords' Amendment accordingly agreed to.
§
Clause 8,—
APPLICATION TO WORKMEN IN EMPLOYMENT OF CROWN.
§
Lords' Amendment adding at the end of Sub-section (2) the words—
and, notwithstanding anything in that Act or any such warrant, may frame a scheme with a view to its being certified by the Registrar of Friendly Societies under this Act.
§ Agreed to.
§
Clause 10,—
COMMENCEMENT OF ACT AND SHORT TITLE.
§ On the Lords' Amendment altering the date for the Bill to come into operation from March 31, 1898, to July 1, 1898,
§ *SIR C. DILKEsaid this was a very considerable concession to the body representing the coalowners in both Houses. It must be remembered that it was a concession on a concession, and when the Amendment was moved in Committee in the House of Lords the Government refused to entertain it, because a considerable concession had already been made. It was, however, accepted on the Report stage. He thought it was a question on which the opinion of the House ought to be taken. ["Hear, hear!"]
MR. CHAMBERLAINsaid that, in his opinion, this was the only Amendment that had in any way diminished the benefit of the Act, and it had diminished the benefit to this extent—that it had 1669 postponed its application for three months longer. It was, as the right hon. Gentleman had said, a concession on a concession; but practically all the Government had consented to do was to postpone the action of the Bill for six months beyond the time when it would in the ordinary course come into operation. That was the extent of the concession. Was it unreasonable? It was admitted on both sides of the House that for the first time they were introducing a great new principle into legislation. It was a principle so great and so new that right hon. Gentlemen opposite had even expressed surprise at the Government being able to carry it through. Was it, therefore, unreasonable that this great new principle should be delayed for six months in order that the great trades concerned might make preparations? To his mind that was not the case. ["Hear, hear!"] He thought it was reasonable to the employers, and he thought it might be beneficial to the men, because he believed the time would be taken advantage of to come to terms with them as to the arrangements to be made. On the whole, he thought the concession might be heartily supported. ["Hear, hear!"]
Motion made, and Question put, "That this House doth agree with the Lords in the said Amendment."
The House divided: —Ayes, 150; Noes, 60.—(Division List, No. 350.)