§ *SIR A. B. FORWOOD (Lancashire, Ormskirk)
I beg to move the Second Reading of the Common Employment Abolition Bill. This Bill, which I ask the House to accept, deals with a subject of great complexity and much interest. Seeing that the classes who are affected are those connected with daily labour, it is unfortunate that the Measures affecting the same are not more simple in their character and more easy of reference. Sir, I feel that, in approaching this subject, I am at a great disadvantage, for it requires the trained intellect of a lawyer clearly to set the position before the House. However, Sir, I ask the indulgence of the House if, in plain language, I describe the effect of the present position of the law on this subject, I may fail to give the exact technical effect of each point. But, Sir, we are dealing with a matter of great magnitude and character, which affects very largely the industrial and social position of millions of our people, and, therefore, Sir, I feel that I shall have the forbearance of the House and some justification in calling your attention to it to-day. I know, Sir, that the first criticism that may be offered to the introduction of such a subject is the fact that only last Session we passed a Bill which occupied a very important part of that Session in considering the details of a Bill dealing with the subject of employers' liability to the workmen in their employ, and it must be said that that Bill has not yet taken effect. It may be asked—Why, then, again enter into a discussion of the subject? Well, Sir, my answer to that is that the Bill I now ask the House to read a second time does not amend, alter, add, or take from, in any sense or way, the conditions of the Compensation to Workmen's Act which we passed last year. I believe the effect of one section of the Bill submitted, may be to induce employers who are not affected by the Bill last year to place their workmen under that Act. If it does so occur, anyway, a very important 1092 step will have been made in advance in the direction of instituting proper relations between employer and employed. Now, Sir, if I thought that the Measure I have to introduce in any way affected the Bill of last year, or prejudiced it in any way, I should be the last to ask the House to accept it, because the Bill of last year had my most hearty approval. The only regret I had about it was that it did not go far enough, and that it did not embrace all classes and conditions of the working class community. Well, Sir, the Government gave, as the reason for not including in that Measure, more trades and occupations than those embraced within its four corners, that they desired to try the effect of the Measure before extending its provisions to other trades and employments. I accept, loyally, that decision of the Government. But, Sir, no trial of such a Bill can be made until after the lapse of a considerable time, and it will take years to see the effect of that Measure upon the industries of the country, and I do not think it is likely that any Government is likely at a very early date to extend the scope of employment which was brought within the Bill of 1897. Well, Sir, that being so, we have this fact before us: that, as the case was stated last year, fully one-half of the labouring classes in this country are left entirely in the position they were before the passing of that Act, and that position is generally admitted to be unsatisfactory; and their case is even more aggravated by the passing of that Act, because those workmen who are left out, so to speak, in the cold, see their fellow workers in other trades enjoying immense benefits from the Act of 1897, all of which advantages they are precluded from. I think the grievances of those excluded will be greater and greater as time passes. Now, Sir, for one moment I will attempt to examine the present situation of this question. The employer is liable to-day, at common law, to an unlimited amount for accidents happening to any of his workmen through his own negligence or defective equipment. The Act of last year in no way affected that position of the employer. Again, Sir, under the statute of 1880, in certain defined occupations this personal liability of the employer was extended, 1093 and he became, under that Act, liable to accidents arising from the negligence of those in his employ who had authority to give directions to their fellow-workmen. In that Act of 1880 the limit of, liability in respect of compensation for accidents arising from the negligence of persons in authority was very properly limited to three years. I have always held that there should be a limit of liability upon the employer in reference to this question of compensation. Now, Sir, the object of the Bill, the Second Reading of which I am moving, is to do away with the distinction that is drawn in the Act of 1880, as between accidents due to the negligence of persons in authority, and accidents due to the negligence of fellow-workmen. The Bill which I am proposing will still leave to the employer all his rights of defence arising from contributory negligence. If the workman, by carelessness on his part, contributes to the accident from which he suffers, my Bill will still leave it as at present in the hands of the employer to set up that defence. And, Sir, here lies one of the great differences between the position of the workmen under the law, if amended as I propose, and the position of those workmen who have the advantages of the Act of 1897. They can claim damages from an employer for accidents happening, whether they were contributory or not to the cause of the injury, always provided their fault could not be regarded as wilful. Then, again, Sir, the Act of 1897, as all know, gave to the workman employed indemnification in all accidents, however caused, whether through their own fault, the fault of the foreman, or those set in authority, or through the fault of their fellow-workmen. Well, Sir, we cannot, as I have already said—and I do not propose to attempt it—enlarge the scope of employment, of the Act of 1897, and my object is to endeavour to do what is possible short of amending or altering that Act, to meet the case of that large body of workmen who are outside its scope and cannot obtain any benefits from it. I wish, Sir, to come to the rescue of some portion at least of the many persons who are injured every year out of the six millions or more of labourers in this country who do not enjoy the benefits of the Act of 1094 1897. My object, Sir, will be gained if even in a few cases I can help to prevent a poor man who is maimed by an accident, or whose family, through his death, is left in distress, penury, and want; if I can rescue some of them from poor-law relief, or charitable relief, I shall have gained one object of the Bill which I propose to ask the House to adopt. Now, Sir, I think it will be generally admitted that there is a great hardship upon the workman who suffers from the negligence of a fellow-workman. It is an undoubted fact that if a workman in my employ is negligent, and injures a person not in my employ, I become liable for damages to that person; but, if he injures the man who is working alongside of him I am free from any responsibility. Now, Sir, I think that that is a hardship which is generally admitted in respect of the condition of the law of this country. Everyone will admit that the workman has no right of selection of the men who are to work alongside of him. That is left entirely in the hands of the employer to select careful, sober men and good workmen, or he may be careless in his selection, and the risk run by the employer compared with the risk run by the workman is exceedingly unfair. Now, Sir, what is the risk taken by the employer? It is money, or represented by money. It may be injury to the tools placed in the hands of that workman; there may be less trade by reason of the output of unsatisfactory work, but, at any rate, the employer can get profits—I will not say unlimited profits—on his capital. But what are the risks which the workman undertakes or is exposed to? His wages are seldom more than a reasonable amount for his subsistence. Why, Sir, he takes the risk of life-long disablement, possibly leaving his family in a state of destitution and want, without any resources but the poor-house. Now, Sir, I think all will hold with the position that the contrast is unequal between the employer and employed as regards the employee, and my object is to do something—it may be only a little—to remedy as far as possible this position of matters. Now, Sir, under the Bill, the Second Reading of which I am moving, I propose to extend the liability of the employer to injuries that may be sustained by the employee arising out of the negligence 1095 of a fellow employee, whether he be a foreman or person in authority, or whether he be an ordinary workman in the same employ. I propose to prevent contracting out of these conditions, except where the employer chooses to adopt for his employment the condition and provisions of the Act of last year. I know it will be said that a Measure prohibiting contracting out has been brought into this House, and has been more than once discussed, and has also been opposed by myself and by Gentlemen sitting on this side of the House. Now, you will say, "You are proposing a Bill which prohibits contracting out." Well, I am certain that the passing of the Measure of 1897 removed the greatest difficulty there was to the prohibiting of contracting out. Previous to last year this difficulty arose to passing a Bill prohibiting contracting out, the terms of a clause in which other and adequate considerations were offered to the workmen than those afforded in the Bill. It was always urged that those considerations offered by the Measure were to be the standard of advantages to the workmen—that is to say, that if a man was allowed to contract out of the Bill he should obtain conditions better than those offered by the Bill. Weil, Sir, we passed a Measure last year which gives a standard, I submit, of advantages to workmen, to the many classes of workmen to be admitted under that Bill, and think I may fairly assume that that Bill was considered an advantageous Measure to the workmen; and if I prohibit contracting out by the Bill I am asking the House to read a second time, unless the employer chooses to adopt the provisions of the Bill of 1897, I think I may fairly claim that what has been done in the past was reasonable, considering that we have this standard of advantage to which I have alluded. Now, Sir, the persons who benefit by the Measure I am submitting to the House are those who are embraced under the Act of 1880. That Act does not include seamen, and it does not include domestic, servants. As a practical man I want to see something done, and if I cannot get a whole loaf, I am prepared to take half of one. I voted last year for the inclusion of seamen, and a very large majority in this House voted against it. I 1096 accept that decision, and I have not included seamen within the four corners of the Measure which I am asking the House to accept. I can quite understand, as a shipowner myself, it can be said that this is an attempt to impose obligations on employers which I do not come under myself, but it will be seen that I am acting in a fair and consistent spirit. I did what I could to include seamen in the Bill, but the Government and the House determined that the occupation of seaman was an occupation apart and distinct, having conditions different to the ordinary employer, and so, as a practical man, I felt bound to accept that decision of the House; and I trust that the Government will, at no distant date, deal with this question of seamen, because I feel they ought to have protection under an Employers' Liability Act. Now, Sir, I at once admit that the Bill I am proposing will not confer, by any means, the benefits of the 1897 Act on those workmen who come under it. I am bound to say also, Sir, that litigation will not be stopped by it. There will be still the opportunity of pleading contributory negligence. Well, I am doing all I can, which is practical at the present moment, by extending the liability of the employers to accidents arising from the negligence of a fellow-servant. This has been admitted before in the Debate to be no Party Question, and all I can say is, if the House grants the Second Reading of this Bill, and if it is thought that the wording of the Bill does not carry out, as it should do, the intention that I have endeavoured to express in regard to it, it is quite open in Committee here, or in Grand Committee, or even in Select Committee, to take up the question, and put the alteration in such wording as they may think better. I have one more point I wish to add. I am far from desiring to place upon the industries of this country any undue burden, or any unnecessary or improper charge. And, Sir, some may ask what effect, or what is likely to be the amount of money to represent the burden which you will place upon industry by this Bill. Well, Sir, it is very difficult, indeed, to obtain any reliable estimate on a quantity so unknown as the extent of accidents which are due to a fellow workman's negligence in which contributory negligence may 1097 play a part; but, Sir, I have taken some trouble to ascertain what is likely to be the charge, and I have taken, as an illustration, the agricultural labourer, and the cost to the farmer, the likely cost, if he wishes, as he ought, to insure himself against these obligations. I am informed, on what I consider to be excellent authority, that to cover the additional liability that this Bill would throw upon the farmer, and to include the liability which the farmer at present is under, would not exceed is per annum per labourer receiving 15s. per week in wages. But whatever may be the cost, my view is that it is our duty to remove some little burdens of loss and distress from accidents from the shoulders of those least able to bear them, and place the charge where it ought to rest—on the product of the labour. I beg to move that this Bill be read a second time.
§ MR. H. SETON-KARR (St. Helens)
I very much regret to find myself in opposition to my right hon. Friend. I am a political neighbour of his, but I must say that I am entirely unable to support his view. I venture to say, in the first place, that this Bill is unfortunate for the time of its introduction, for it is following closely upon the Compensation Act of 1897. At the present moment that Act has not come into actual operation. No one has any certain knowledge of its operation, or of its effects upon the great industries to which it refers, and I venture to say, under these circumstances, to introduce this; Bill, which refers directly to that Act, before we have had an opportunity of knowing how if is going to work, seems to me to be a very premature suggestion for legislation in this House. There is another important consideration in connection with this Bill. The employers and the men are now engaged—the employers in particular are now engaged—in ensuring themselves against entirely new industrial conditions, which have nothing to do with employers' liability, and which only affect a workman's compensation; whilst, on the other hand, they are engaged in arranging some scheme which will enable them to contract themselves out of the Compensation Act of 1897. I do not think that at this premature stage, when this Measure is being considered in this way, and when if has not come 1098 into operation, that we are likely to facilitate its operation by introducing another Measure of this kind. I should like, however, very shortly to allude to one or two of the points of the Bill on its merits, which, I confess, so far as I am concerned, I have read very carefully, and I do not find myself able to understand. My right hon. Friend cleared up one point which I was in extreme doubt about. He defends the first clause as a clause to abolish the defence of common employment, but there is something more than that. The right hon. Gentleman has just said that it abolishes the power of contracting out. It seems to me that this is a point which ought to be more clearly expressed in the clause of a Bill of this kind. We are asked to introduce a very important alteration in the common law of this country affecting employers' liability, which really has nothing to do with workmen's compensation so far as the strict meaning of the term is concerned. If we are to introduce a Measure which not only abolishes the defence of common employment, we ought to have words expressing if far more explicitly than those words contained in the first clause. There is another point which seems to me to be rather more important. This Bill proposes to alter the penal law of the employers' liability, and to put in the place of it a certain set of cases which do not come under the Compensation Act of 1897. I submit that this is a violation of the fundamental principles of the administration of justice. That Measure ought to apply all round, and there ought to be no exception all round. Hon. Members will notice that the employer can escape employers' liability by taking refuge under an entirely different clause of the Compensation Act of 1897. I submit that this is a very extraordinary violation of the principle on which the administration of justice in this country is founded, and I think it is a fatal flaw in this Bill. I also desire to point out that this Bill confuses two important principles of employers' liability and workmen's compensation. The Compensation Act of 1897 has nothing to do with employers' liability, and I cannot see how the Bill is going to work if the second clause mixes up these two principles. With regard to Clause 2, I desire also to ask 1099 the right hon. Gentleman the Mover of this Bill the meaning of the first and second portions of the clause, which seem to raise an important question of principle. The first part of the second clause says—This Act shall not apply to any employment to which the Workmen's Compensation Act, 1897, applies, and it shall be lawful for any employer to elect that the said Act shall apply to the workmen in his employment in the same manner as if it had been by the said Act expressly made applicable thereto, and upon such election being made, Section 1 of this Act shall not apply to said employment.Does that mean that the employer above shall have the choice in that matter? If so, why does the Bill say that such contract shall be signified in writing and signed by the workman? If it is not signed by the workman, what will happen? If the meaning is, that this is an agreement, signed by the employer and the workman, surely the workman has some say in the matter! If the workman has no say in the matter, then it seems to me that the second part of this clause is rather unintelligible. This is an important principle, which lays down that only one side of two contracting parties shall have the choice in a matter which will seriously affect the workability of this Bill. There is also the question of a scheme of permanent relief, which ought to be approved by the Registrar, and under which employers are allowed to contract out of the Act of 1897. The House will remember that when the Act of 1897 was passed some of us did our best, according to our lights, to improve it, and one point to which we largely directed our attention was the question of the continued existence of relief societies, like that of Lancashire and Cheshire, to which employers and men both subscribe, and we endeavoured to introduce an Amendment which we believed would greatly facilitate the existence of these societies and enable employers and men to contract out of the Act. I wish to ask the promoter of this Measure how the second clause of this Act is to be interpreted in these cases? It can be argued both ways. It may be said that the Act of 1897 originally applied to certain industries; there this Bill does not apply to these industries. On the 1100 other hand it may be said that these particular industries have, under the Act of 1897, contracted themselves out, and that, therefore, this Bill does not apply to them. How is this clause to be interpreted? It seems to me that the clause will prove a godsend to the lawyers; whether it will be a godsend to the industries concerned I am not so sure. It may happen that in certain industries a scheme is brought in and approved, and the employer and workman contract out of the Act of 1897, and five years after the scheme is abandoned, and the men revert to the Act of 1897. What happens to Clause 2 in these circumstances? It seems to me that it will result in "confusion worse confounded," and it very large sum of money being placed in the pockets of the lawyers. This question of contracting out has occupied the very serious attention of many large industries in this country. I do not wish, to inflict my personal experience on the House, but I may say that recently I had a long interview with some colliers in my constituency, the whole of which was devoted to a consideration of the various aspects of the Bill. The men were extremely anxious to make up their minds as to how they should vote; whether for a permanent relief society or for the Bill. After a long interview they appeared to me to be altogether inclined to vote for their society rather than on the Act for compensation for injuries, and I rather think they will. It is likely that some of these permanent relief schemes—to which employers and men contribute—will be formed, and I think the Registrar will approve of them. In that case, what is to be done with this second clause? These are considerations which the House ought to take very seriously to heart. The House has been, so far as my experience goes, too fond of passing amateur Acts of Parliament affecting the great industries of this country. I can recall two important Measures passed recently—one within the last three years, which, to my mind, was a hasty and ill-considered Measure—I allude to the Factory and Workshops Act of 1895. Recently, I had a deputation of men representing the largest trade in my constituency—the glass trade. They pointed out what I endeavoured to bring before the Select Committee, the damage caused to their trade by the fact that 1101 boys of over 13 years and under 14 are not allowed to work on night shifts. I mention this fact to emphasise the view that the House should be careful how it passes these industrial Measures. With all deference to the ability of my hon. Friend, the Mover, and to those who support it, this Bill is in some respects unintelligible, and, where I can understand it, it seems to me to be an unworkable Bill, and finally, I think it is an absolutely premature and inopportune Bill.
§ MR. A. URE (Linlithgow)
The main object of this Bill appears to be to abolish the doctrine of common employment in those trades to which the Bill passed last Session does not apply. So far as Scotland is concerned, I apprehend there will be no division of opinion with regard to this Bill. The doctrine of common employment was engrafted in our law within very recent years—in fact, within the memory of men still living, and it may be interesting to remember that Lord President Inglis, when counsel at the Bar, raised the plea of common employment for the first time in 1852. In that year a very eminent Scottish judge, well known outside the walls of Parliament House—Lord Cockburn—used these very remarkable words in giving judgment—This doctrine is most certainly not any part of the law of Scotland.… I have rarely come on any principle that, seems less reconcilable to general logical reason. I can conceive some reasons for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim on him for reparation, because they incur damage on his account.The then head of the Court in which Lord Cockburn sat, endorsing these views, said—I go on this broad principle that, since the employer is liable to third parties for the injuries sustained by them, he is a fortiori liable for those sustained by his own servants.If this Bill is passed it will not only restore the law of Scotland to the state in which it was prior to the judge-made law, to which I have alluded, and which came into our system in 1858 by a judgment of the House of Lords, in which their Lordships reversed the decision of the Scottish 1102 Courts; but it will unquestionably alter the Common Law of England. Everybody is agreed that this doctrine ought to be abolished, and, for that reason, the Bill introduced by my right hon. Friend the Secretary of State for the Home Department was received with approbation. The hon. Member who has just sat down, says that this Bill is inopportune, because we are to see an experiment tried which is to come into operation on the 1st July next. But, Sir, the object of this Bill is to enlarge the experiment, to enable us to have a greater number of instances brought within the scope of the Bill passed last Session, and to enable us to see more effectively what the result will be when employers are made responsible. I take a very strong view that employers will not find themselves saddled with a heavier responsibility in the future than in the past, because no one can have watched the judicial history of the question during recent years without seeing that public opinion by the verdicts of juries has gone strong and direct in favour of the principle of the Measure passed last year. Anyone experienced in the business of the Courts knows that an employer going, into the Courts to defend himself against a claim by a workman can almost never succeed before a jury, unless he proves out of the mouth of his opponent's witnesses that the injured man was most at fault. The result has been that in almost every instance where an employer sought to defend himself against pure mishap, he has failed in his defence, and the jury has made him responsible. The Act of last Session merely expressed public opinion as it has been previously known to exist, and the result of passing the present Bill will be that, in the future, the employer will have to pay less, and will be relieved from the expenses of legal procedure. That will be the inevitable result. Sir, I disagree with the hon. Member who has just sat down that the second clause of this Bill will be a godsend to lawyers. Far be it from me to reject anything that will be a godsend to lawyers. The second clause of this Bill seems to be expressed with admirable clearness. The object is simply to introduce a particular trade, to which the clause is made applicable into the Act of last Session. You 1103 simply read that particular trade into the list of trades to which the Act applies, and every one of those conditions in the Act will apply to that trade, including those relating to insurance societies, and relief funds, to which the employer desires the Act to be applied. Thus we have here a two-fold object achieved; first, the abolition of the doctrine of common employment; and, secondly, the enlargement of the scope of the Act of last Session to any extent to which the employers are willing to have it applied, so giving us a much wider field of experience to enable us to judge whether or not we should extend the Act of last Session to every trade in the land. For these reasons, I hold very strongly the view that this Measure should be passed, and I think the employers will find that it will be to their advantage, as well as to the advantage of their workmen, that these two objects should be achieved. It may do a great deal of good, it can do no harm.
§ *MR. C. A. CRIPPS (Gloucester, Stroud)
Sir, I desire to explain why I think the Second Reading of this Bill should be opposed. I do not know if any domestic questions of greater importance or greater magnitude ever come before this House than that of the proper legal relationship which ought to exist between the employer on the one side and the employed on the other. The right hon. Gentleman who opened the Debate, supplied the best possible reason against the reading of this Bill a second time at the present stage. He said, with the greatest fairness and accuracy, that in his opinion the Act of last year did not go far enough. Everyone on this side of the House is aware that that was the attitude the right hon. Gentleman took during the passage of the Workmen's Compensation Act last Session. But upon that point, if we are to take the opinion of the majority of this House, the right hon. Gentleman was found to be wrong; and, although it would not be in order, nor would this be the occasion, to discuss the general principles involved in the Workmen's Compensation Act of 1897, I think that the right hon. Gentleman places his present proposal upon the basis that that Act 1104 did not go far enough. Sir, the conclusive answer is that it is more than premature to seek to reopen the discussion upon the principle of an Act which does not come into force until the beginning of July of this year. I should like to say a word in answer to the hon. Member who spoke last, and who speaks with great authority on all legal questions. But I may point out that, in my view, the hon. Member is under a misapprehension as regards the scope of the Act of 1897. He said that it was merely a declaration of existing law, that no new principle was involved, no new element introduced in reference to the legal relationship between employer and employed. If the hon. Member did not make that statement, I regret that I misunderstood him, because, the objection I take to the present Bill is that its proposals are founded on the Bill of last year and on the fact that the Pill of last year did introduce a principle hitherto unknown in English law, introducing that principle in an experimental stage, and limiting its application purposely as regards terms to certain trades and occupations which might be considered to have a specially dangerous character. So far as the doctrine of common employment is concerned, if that were the only principle involved in the Bill, I should not be here to oppose it. In my view, that is the right principle upon which to deal with the relationship between employer and employed, and it is because the Act of 1897 gives the go-by to that principle and introduces a novel principle as regards many of its terms, that I was not in favour of many of its provisions. The first section of the Bill is not limited to the abolition of the doctrine of common employment. The right hon. Gentleman who moved the Second Reading pointed out that the Bill goes far and beyond any proposal of that kind. The right hon. Gentleman said—I am now opposed to any recognition of the doctrine of contracting out.Therefore, we find in the first clause of this Bill, and without safeguard or limitation, that the new liability is to be imposed as between employer and employed, notwithstanding any contract to the contrary. I appeal to Members on this side of the House. 1105 There may be questions between us as to the limitations and conditions under which the principle of contracting out is to be worked, but is there any hon. Member prepared to say that they will adopt the principle laid down in this Bill, that whatever the conditions between the two parties, whatever the equity and justice may be, under no circumstances, and in no case can there be any contracting out? I wish to add one word, to show why the general principle of contracting out should not be destroyed for all time and under all conditions, by a proposal of this kind. If you give to every workman the power of entering into a contract with his employer, you give him liberty to get the best possible terms he can, having reference to his own powers of work. That is the essence of liberty as between one party and another, and the fallacy seems to lie in the assumption that in a contract of this kind, the employer must necessarily get the best of the bargain. On that point I join issue. There may have been instances of that sort of bargaining 20 or 30 years ago, but, coming to the present day—whether you have contracts between bodies of men and employers, or between a single workman and an employer, there is no reason to assume that the workman will necessarily get the worst of the bargain. I do not think that is the case, and I should like to put this question. Supposing I am in the position of a workman able to get better terms than any Act of Parliament would give me, am I not to be allowed to get those conditions which the superiority of my work or special circumstances enable me to get? By destroying the principle of contracting-out we may do as much harm, or more, to the workman on the one side as to the employer on the other side. But unless the House adopts the principle of prohibiting all contracting out, Section 2 to this Bill will be absolutely unnecessary. It is competent to any man to adopt the principles of the Workmen's Compensation Act of 1897 as between himself and his workmen, and the only reason why Section 2 was introduced is because that the first clause find the general statement that no contracting out at any time is to be allowed as between employer and workmen. The proposal in Section 2 undoubtedly touches the principle 1106 of the Workmen's Compensation Act of 1897. The principle involved in that Act was an entirely novel one, entirely unknown to the English law, and equally unknown to the Scotch law. For the first time we introduce a principle that an employer may be liable for the act of a stranger, or what is sometimes called the act of God; at any rate, an act in reference to which he was not responsible directly or indirectly. That is a wholly novel principle—I am not discussing whether it is right or wrong, that was discussed last year—but I would point out that it was argued and accepted to a great extent on both sides of the House that a novel principle of that kind must be dealt with as though it were in an experimental stage. It was for that reason that the Act of 1897 was limited to certain trades. During the passage of that Bill through the House last Session the right hon. Baronet sought to extend its scope in the same way he is seeking to extend it now, not by compulsory process, but by the election of the employer.
§ *MR. CRIPPS
So far my remark does not apply, but the subject matter was discussed in a variety of Amendments. If my right hon. Friend did not bring the question forward, so far as he is concerned my argument would not apply. But it applies generally, for we know that the question was discussed whether this Bill should be taken in the experimental form. But that is not my only objection. It must be recollected that the terms of that Bill were fixed with reference to particular trades which had been included in it. If the question of extending this Bill is brought forward, all these matters will have to be considered. I do not either dissent from or assent to the proposition of my hon. Friend, that you may want the same scale of compensation between a man and his servants, or between the agricultural labourer and his master, as you have in these other trades; but I say the matter must be inquired into. My opinion is not entirely in accord with that of the right hon. Gentleman. These matters are most difficult to deal with, 1107 and ought not be dealt with by what I might term piecemeal and amateur legislation of this character. They ought to be dealt with as a whole, and the field of inquiry ought to be extended, to see what fair propositions could be adopted. We all desire that the workmen should be properly treated, but what we also desire to see is that in these important and far-reaching principles justice and right should prevail on both sides. It is from that point of view, and because I say it is obviously premature to bring in this Measure and to interfere with the Act of last Session, and that we ought to discuss these Questions from a general point of view, that I have come to the decision to vote against the Second Reading.
§ MR. H. H. ASQUITH (Fife, E.)
It is impossible to dispute the logical consistency of the position taken up by the two hon. Gentlemen on the opposite side of the House, who have objected to the Second Reading of this Bill. The hon. Gentleman the Member for St. Helen's based his opposition upon two grounds, so far as I understand. First, his general suspicion of all legislation, proposed from any quarter whatsoever for what he calls meddlesome interference between employers and workmen; and, in the next place, if this Bill were passed, it might retard the process of contracting-out, under the Act of last year, which he is anxious to accelerate, and which he believes is going merrily on. It is a curious tribute to the moderation of last Session. My hon. and learned Friend who has just sat down has taken a slightly different view. He says, and with truth, that when, we attempted to insert into the Compensation Act of last year this very provision in a somewhat different form, not only the Government but a majority of the House refused to assent to it, and that the promoters of this Bill are asking the House now to revise and correct the decision come to by the House in the Act of last Session. If that argument weighs with anybody it is entitled to the weight which my hon. and learned Friend claimed for it, but those of us who think the House came to a wrong decision, who think that no solid reason was shown for excluding from a modicum of protection even the less 1108 dangerous trades, are certainly not stopped by anything which took place last Session from urging our view again. Now we have discussed this topic of a common principle to an extent which has made every argument familiar. My own view is that this Bill is an extremely humble and not very logical instalment of a reform which I earnestly desire to see accomplished in a more sweeping manner. No one has yet said, and I doubt whether any one will say, a single word in favour of the abstract logic of justice of the doctrine of common employment. It is a doctrine which is not venerable by antiquity, which was introduced into our law by the Bench within the memory of men still living, and which has artifically incorporated into contracts of service provisions which up to the time this doctrine was invented neither employers nor workmen had ever dreamt of. It rests upon what I would venture to call the absurd foundation that the measure of the obligation of the employer for the acts of his workman ought to be less in degree of stringency when the person who is injured by such act is a person with whom he is in the actual relationship of master and workman, than if the person is an absolute stranger. It is impossible to defend such a doctrine, and nobody has defended, it, or will do so except on the ground perhaps of expediency. Therefore, if this were a Bill to abolish common employment and to prevent anybody contracting out of the law I should support it with the greatest heartiness, but inasmuch as it advances some steps in that direction I support it to the extent to which it goes. But let me point out where it seems to me that this Bill falls seriously short of the requirements of the case. In the first place, it is confined to proceedings taken under the Employers Liability Act of 1880. Therefore it excluded from its scope every class of workmen which does not come within the Act of 1880. It excludes, therefore, the whole class of seamen, also domestic servants, and all workmen who do not come within the definition of "workmen" in the Act of 1875. I can see no ground why the proceedings to which it applies, taken either at common law or under the Employers' Liability Act of 1880, should give whatever protection it does give improperly. There is another form 1109 of drawback which results from its application being confined to proceedings under the Act of 1880. It incorporates by implication certain provisions of that Act which, I think, have been found in practice to be inconvenient or unworkable, and in particular the provisions as to notice of accident, the notice of action, and as to the limit of the amount of compensation to be given to the workman. Those provisions ought to be, if not entirely swept away, at least limited to the limitations which at present curtail the scope of this Measure. Now let me say one word upon the other Question, the effect of the Bill on what is called "Contracting Out." I have always been of opinion that contracting out ought to be prohibited without qualification or limit. I hold that opinion upon grounds of general policy, and also because I think if you do not prohibit it, you do not in the least degree, invalidate the strength of the motives operating in the mind both of employer and workmen to enter into any scheme of mutual benefit which will give them larger advantages than they would otherwise get under the Act. I was glad when I found in the first clause of this Bill a complete and unqualified prohibition of contracting out, and I listened with anxiety and curiosity for the explanation which would be given by the right hon. Baronet of that provision, and how he would reconcile it with the action he had taken in days gone by, in strenuously objecting to anything so monstrous. It appears that the manner in which the right, hon. Baronet reconciles his present proposal with his past proceedings is by reference to the second clause of the Bill, which allows the employer to elect to come under the Act of last year. A more illusory attempt to pay a superstitious homage to the deserted shrine of an abandoned principle I have never seen in this House. By that clause he offers the employer a way of escape from the modified measure of obligation which he is going to impose upon him. I do not know whether the right hon. Baronet will remember that last Session it was the constant burden of the speeches of right hon. Gentlemen on the Treasury bench, and particularly of the Colonial Secretary, that the Bill of last Session was imposing infinitely greater burdens on the employer, in the 1110 sense of giving much greater protection to the workman, than, in the legislation we proposed in years gone by. It was said at the same time that it would be grossly unfair to small masters and to persons engaged in trades which were not dangerous to impose upon them this large measure of liability which it might be tight to impose upon great capitalists. I do not say those arguments are not well founded, but to a considerable extent I think they are greatly exaggerated. This is a Bill prohibiting contracting out to a certain extent, and while the scope is more limited than I should like to see, to that extent I support it. I do not know what course the Government propose to advise the House to take in relation to the Second Reading. I have seen it slated—I do not know on what authority—that they are not indisposed to allow the Second Reading on the understanding that the provisions of the Bill should be overhauled in a Select Committee or by some other tribunal. I doubt the wisdom of sending to a Select Committee a question of this sort. If there is one subject under Heaven within the range of the political arena which has been threshed out, both as regards the principles of legislation and the industrial facts relative to the case, it is the doctrine of common employment, and any attempt to send it to a Select Committee would, in my opinion, be temporising with the question, and in till probability there would be no legislation at all in the nature of a settlement of it. But I hope, if the Government assent to the Second Reading of the Bill, limited in its scope and not altogether logical as I have shown it is, they will allow us in Grand Committee to discuss and, to some extent, remodel its provisions in order to bring them into better conformity with the principles of equity and justice.
§ MR. C. M. ROYDS (Rochdale)
Mr. Speaker, for some years I have advocated Measures of the nature of the one which is now before the House, and with which I have the privilege of being associated. Representing an industrial population of over 70,000, with whose views I am intimately acquainted from a life-long connection, I desire to say a few words upon the subject of this Bill. I cannot 1111 pretend to follow it into the legal atmosphere to which it has gone, but I would approach it from a workman's point of view, which, I hope, is a common-sense one, but which does not always agree with the legal point of view. There is a very strong feeling of dissatisfaction with the Employers' Liability Bill, based as it is on litigation containing obligation of notice of injury and notice of action which bears very hardly on working men very often. It also contains the doctrine as to common employment, which these men are utterly unable to understand, for, while an employer is liable for the acts of the workmen in his employ as regards the general public, they cannot see why he should not be liable as regards fellow workmen. I am going over the ground which has been already traversed, but I think it is profitable on a question of this kind to discuss how the law was arrived at. The doctrine appears to be taken for granted in this discussion that a workman, on engaging with his master, explicitly contracts and agrees to undertake all the responsibility of risks arising in the case of a fellow workman. Surely this is a very disadvantageous position for the workman to be in, inasmuch as he has no option of selection in the engagement of his fellow worker. This appears to have been modified by the Employers' Liability Act of 1880, where the master was made liable, under certain conditions, for the actions of his workmen, and fellow-workmen can, under special circumstances, obtain compensation. But this Act was so beset with difficulties that it has not been of any practical use, and the safest course to pursue would be to abolish common employment, and make the master liable for all injuries received by a workman, as if the workman was one of the general public. The Workmen's Compensation Act has been alluded to, and in a very short time a large portion of the workers will come under the provisions of that Act, and that is the only thing that they have recourse to. I would, therefore, respectfully urge, upon the House that, at least, so far as this doctrine of common employment is concerned, the working classes should be relieved from it. I might reasonably urge upon the House the acceptance of the Bill, at all events in view of this 1112 doctrine being abolished. I do so in the interest of that individual class by whom it is most urgently asked for, and by whom it will be thankfully and gratefully received.
§ MR. H. BROADHURST (Leicester)
I sincerely hope the House will not be led astray by the legal web which has been woven by the hon. and learned Gentlemen who have spoken upon this Bill. It is a very straightforward Measure submitted by the right hon. Baronet. I wish it had gone further on this occasion, and swept away many of the disabilities from which the further on this occasion, and swept away many of the disabilities from which the workmen suffer at the present moment. But I want the House to remember this, that the Act of last year enfranchises, for the purpose of compensation, a limited and select number of the workmen of this country, and that a great many are excluded from it. Statistics show that 7,000,000 of the workers will not receive the benefits that it will confer on a number of more fortunate workers. These remaining 6,000,000 or 7,000,000 are at present subject to disabilities, but they are subjected to one in particular, which is imposed upon them by this Judge-made doctrine of common employment. Now, that is what this Bill seeks to remedy. Now, another point I should like to pass to is that if this Bill should become law the workers whom it would affect would not be receiving any special advantage or any special favour. At present they are excluded from a right which their situation precludes them from claiming and this Bill will only remove this disability from them and give them the right which others already possess. Now I agree with my right hon. Friend that the House is thoroughly saturated with the knowledge of the objections to and arguments for and against this question of common employment. It was 26 years ago, I believe, this very month, that the body I had the honour to be Secretary to induced this House to appoint a Select Committee to consider the question of Employers' Liability and to impartially investigate the doctrine of common employment. That 1113 Committee sat in 1876 and 1877, and one of the witnesses examined upon the question was the present Lord Esher, then Mr. Justice Brett, and the whole of the law of common employment will be found in the statement he made as a witness before that Committee. He argued that the present liability of an employer for the acts of his men might be good or bad, but so long as it was the law for that one class it should be law for the other, and that the working classes ought not to be excluded from the benefits of the law because they were working classes. That was the argument of Mr. Justice Brett, and that is an argument you cannot get behind or deny or truthfully repudiate. Now I say so far as this Bill would give to us that right which we possessed before the doctrine was embodied in its present form by the Judges, I support the Second Reading of this Bill. I hope we shall not be drawn off the line by a series if legal arguments between one side of the House and the other, but that we shall argue it on its broadest basis as a small measure of justice from which we were unjustly excluded by the Measure of 1897. I wish to support the view taken by the right hon. Baronet the Mover of this Bill with regard to common employment liability. The workman has no choice whatever in the selection of the man with whom he shall be employed, an employer has absolutely the right to select whom he likes, and the smaller and less scrupulous class of employers do not, unfortunately, always select with care the most capable, but they expend far more care upon those who are very cheap. Now, that is the case in many industries. The industry with which I am chiefly acquainted is the building trade, at which I worked the greater part of my life, and these injuries are constantly occurring to a workman through the negligence and, perhaps, incapacity of another workman, who is probably a complete stranger to the injured person. They are all engaged upon the erection of one building, or engaged in one shop, or one wharf, or one yard, but they may be complete strangers, and the employer, taking no special care whatever as to the selection of his workmen, simply takes those who can pass, probably without inquiry into their industry, and probably on account 1114 of their willingness to accept the lower rate of wage. Well, I cannot imagine anything more unjust than for a workman to be excluded from claiming compensation through injury caused by another workman, to whom he is a complete stranger, who is, perhaps, a careless or inefficient workman, over whom he has no control, and in whose engagement in that employment he had no voice whatever, neither has he a voice in the power of discharging him, in spite of his proved incapacity. Well, now, this is the disability that the Bill would remove, and in so far as it attempts to effect that object I am in entire sympathy with it. And if the hon. Member for St. Helens should think it to be his duty to divide the House, I shall certainly support with all my power the hon. Baronet in that Division. May I make one appeal to the right hon. Gentleman the Home Secretary, who has generally met us in these matters with great consideration and great fairness as an equable statesman, and as an honourable man—may I suggest to him before he speaks that if, unfortunately, the Government should propose to send this Bill to a Select Committee, many who are ardent supporters of it would regard it as an unfriendly act? We should look upon that act as some sinister design against the passing of the Measure into law during the present Session. The right hon. Gentleman the Member for Fife has pointed out that Parliament, every newspaper, every public person who has paid the slightest attention to labour questions during the last 30 years, must be intimately acquainted with every phase and every argument in connection with this question; and I venture to believe the right hon. Gentleman the Member for Bordesley is well acquainted with it, although he was not so actively engaged in labour movements in those years as he has happily been since. But we are all thoroughly saturated and acquainted with it. Now, let us take this Bill and deal with it in a Committee of the whole House. If the Home Secretary will agree to that we shall regard it as a friendly act, and as an earnest indication of their wish for the Measure to become law. But if he cannot go quite so far, I do appeal to him to send it at least to the Grand Committee on Trade. It has always been a question belonging 1115 to the Grand Committees on Trade. Decidedly it has. Hon. Members do not remember the history of their own Party and what they have done in regard to this matter. The Measure of 1888, in charge of the then Home Secretary, was sent to the Grand Committee on Trade and there dealt with, and dealt with very effectively, and very well indeed. At any rate, let it go to one of the Committees. On the 1st of July next comes into operation an Act of Parliament, which. I agree is a novel Act, but at the same time it is a just Act. Its only fault is that it is so circumscribed, and so limited in its scope that one portion of the community—a favoured and select portion of the community—are to have the benefit of this new law on the 1st of July as some compensation to those who have been kept outside of this inheritance; the same measure of compensation to those people would be that the Government should see that at least this Bill should be passed through all its stages by that date, even if it did not come into operation until the 1st of January next. I am sure that small, faculty, limited, and circumscribed as the Bill is, it contains sufficiently good proposals that will cause a general welcome amongst the workers of the country if the Government will show earnestness, as it did last year in regard to the other Act—earnestness and determination not to kick it upstairs and to lose it in the mazes of a Select Committee, but to enter it in a straightforward, honest, well-intentioned manner, and deal with it in this House, and see that it passes into law, at any rate, during the present Session. I have very great pleasure in supporting the Second Reading of the Bill.
§ MR. JOHN WILSON (Falkirk Burghs)
The object of the right hon. Baronet in introducing this Bill was, he said, to extend the scope of the law to a certain extent, and with that object and that desire I may say I am in accord. I should, however, have been much more in sympathy with the hon. Gentleman if he had included all classes of employees—had he included seamen, for instance. He has told us that he has given us his reasons for not including them. Well, I 1116 am not altogether satisfied with those reasons. He has said that the sense of the House was taken on the class of workmen to be put in, and the sense of the House was against including agricultural labourers, and many other classes. Now, I have advocated consistently all through the inclusion of all classes of the population. I have, therefore, very much pleasure indeed in saying that I heartily approve the scope of the Bill as far as it goes. But I do think the present is not a fortunate time to introduce it. The difficulties in connection with the Workmen's Compensation Act are many. The hon. Member opposite (Mr. Ure), who is a neighbour of mine, stated that, if I followed him rightly, the burdens under the Compensation Act of last year were not increased on the employer. Well, I do not, intend to follow the arguments of my hon. Friend and their attendant subtleties, but I think, when it comes to figures, I stand on level ground with him. I will take the sense of the House in my case, and I will give the exact amount of money which the Compensation Act has thrown upon my insurance. By the Bill of last year my insurance, which up to that time, under the then prevailing conditions, was from £700 to £800, will now be increased to about £1,000 a year. Hon. Members—legal Members—may, perhaps, be inclined to talk rather learnedly about, compensation, but that is the exact state. If the hon. Baronet, instead of bringing forward this Bill, had brought in a Bill to include all classes of workmen, I would then have been prepared to heartily support him, and many of the difficulties in regard to litigation would have been got rid of. In the course of the discussion last Session, we had many sympathetic references as to the scope of such a Measure from many right hon. Gentlemen on the Front Bench. They have now a splendid opportunity, with the large majority we have, of bringing forward such a comprehensive Measure as would do away with many of the Bills we have at present, and many other Bills which are before us. I may, however, say that I heartily support the Measure of the right hon. Gentleman, and so far as it goes, I will vote for the Second Reading.
§ *MR. T. R. LEUTY (Leeds, E.)
I fear, Sir, that it will be entirely futile to support the suggestion made by the hon. Member who has just sat down, that the Government should be asked to bring in another Bill with a similar object. I think it would, be a sufficient answer to say that only last Session they did bring in a very large Measure, which has not yet been tried. But the hon. Member who spoke last on this side of the House has made an appeal to the Home Secretary—a very eager appeal. Indeed, I think he almost jumped over the Front Bench in his eagerness to get at the Home Secretary and make friends with him. With that appeal I entirely associate myself, because I feel that if the Government can see their way to make plain the road for this Bill, it may perhaps, by some modifications in Committee, pass into law. We all know, of course, how numerous are the considerations which enable Members to support the Government, whichever side is in power, and I therefore hope the appeal which has been made to the Home Secretary will not be made in vain, because I look upon this Bill as an endeavour to remove an objection of long standing, the pinch of which has been felt, and representations regarding which have been repeatedly made to many of us who have the honour of sitting in this House—I mean, Sir, the doctrine of common employment. Those of us who take an interest in the welfare of the working classes know that there are two things which agitate them at the present moment. Those two things are the doctrine of common employment and the practice of contracting out. Now, Sir, this Bill absolutely puts an end to the doctrine of common employment, and in so doing it will answer, and completely answer, one of the doctrines I have referred to. I wish, Sir, that it would equally put an end to the practice of contracting out. I have searched the Bill in vain to find that it does. But it provides that, after the passing of this Act, in proceeding against an employer for the recovery of compensation for injuries to the workman, it shall, notwithstanding any contract to the contrary, be no defence to show that such injury was caused by the act of any co-workman. The 1118 abolition of contracting out only refers to this one Provision. Therefore, Sir, the working of this law would not abolish the defects of contracting out. It does do away with contracting out in so far as this one defence is concerned, but I cannot find any word in it which it is proved to go beyond that. But, Sir, if the Government can see their way to make the course plain for this Bill, I really think, from what I have heard in this House on several occasions, that there would be very little difficulty in making the Bill clearer. Why should not the workmen's claim to have their grievances removed be granted? Last Session the Government brought in a Bill which I venture to think, Sir, went very much farther than had ever been demanded on behalf of the employees of the country. I do not complain of that; I welcome it. I have said before, and I say here again, that I think it was a good Bill. I do not complain that the risks attendant upon a particular trade should be put, not on the individual workman, but on the trade itself. But, Sir, I do desire to traverse the contention of the hon. Member for Stroud, who complained that this Bill would be an interference with the Act of last Session. Sir, the Act of last Session applied its provisions to certain specified trades. This Bill does not touch those specified trades at all, and, therefore, it, cannot be said to be any interference with the Act. This Bill simply attempts to remove certain grievances which existed under the Act of 1880. Sir, I can understand that the Government of last Session could with much cogency say that they could not accept certain alterations. The Bill as it was was big already. But that would not apply to this Bill. There is no danger of any supporters of the Government losing their seat because they accept a proposition to improve this Bill, and, therefore, if they cannot accept this proposal as an addendum to the Bill of last Session, I do hope, seeing that the feeling in the country is very strong, and seeks for a mitigation of these grievances, seeing that the demand has received so much sympathy in this House, seeing that it, is, I believe, founded on simple justice. I do hope, Sir, that our discussion will not altogether be fruitless. I am well aware that this matter has been discussed so often that 1119 I ought almost to apologise to the House for speaking of the present injustice of the law. But let me just give an instance to support my contention. Suppose two masters are erecting two houses adjacent to the highway. Suppose one man is erecting a heavy gate-post there. Suppose there is an accident to the workman at that post, and it falls and injures one man who is assisting in its erection. At the same time an employee of the other master, who is working at the adjacent house, happens to go past, and he also is injured. The neglect which injures these two men is identically the same. The culpability is the same—the moral culpability is the same. The law says to the one man, "You must have no compensation." It says to the other man, "You shall have compensation." Now, I think that is a very great hardship, and the Government may be well asked to remove it. Sir, I would only further say that it has been urged here to-day that these grievances ought not to be touched in a piece-meal way. Well, Sir, I would rather give my vote to the proposition made by the Colonial Secretary last Session, in which he said it was a good thing to go by piece-meal legislation, and if it can be shown that this piece-meal legislation would be likely to hamper the operation of last year's Bill, I think it would be a conclusive answer in favour of the limited scope of this Bill. But I do not see that it would touch it at all, and, therefore, I submit that the dictum of the Colonial Secretary that we had better proceed by piecemeal legislation is really an argument in favour of the moderate proposals of this Bill. Now, with regard to the question of contracting out, I fear it is not understood what is the kind of contracting out which is objected to. The kind of contracting out we do object to is where an employer compels a workman to sign an agreement to contract out as a condition precedent to his employment. It is not insurance; efforts have been made to secure insurance. Efforts have also been made to secure the bearing of the burden of the Act by association of masters and men. Well, Sir, possibly when some of these arrangements are nearing completion the Registrar of Friendly Societies may not sanction this arrangement if they do not give equal benefit to the workmen. If that is secured, Sir, I for 1120 one should not complain of these schemes which have been arranged, but whether these schemes are found to trench upon the Act of 1897 or not I do not think they constitute an argument against the Bill before the House this afternoon. We know that it cannot be passed by force. We know the Government have a strong majority. We may be able by fortuitous circumstances to bring that majority down to 20, or even 19, but I do not think it is at all possible—it is obviously impossible—to pass an Act of Parliament except by the assistance of the Government. I do hope, Sir, that the efforts of the Government, which were so generously extended during the last Session, will be extended in some small measure to this Bill, so as to enable it to become law with as little delay as possible.
§ *SIR ALBERT K. ROLLIT (Islington, S.)
I desire, in supporting this Bill, to state that I do so because I think it is a Measure which will remove, on the one hand, a long standing injustice to workmen, and, on the other hand, a source of prejudice and injury to employers. I think that one of our first duties in this House is to place the laws of labour upon such a footing that those who work under them may not have any real grievances. I most heartily share the opinion expressed by the honourable Member for Stroud when he said that perhaps the most important of the duties that we perform here are those which relate to the definition of the laws regulating the relations of capital and labour, when we do so with the object of placing thorn upon surer and just foundations. One of the worst evils that can overtake the industries of a country would be the spread of labour disputes, ending in strikes and lock-outs, which so frequently occur, and I venture to say that the best security against grievances of that character, involving hardships to the workman and loss to the capitalist, and diverting trade from the country, is to place the laws regulating these matters upon a just basis. Well, Sir, can we say that the doctrine of common employment is a just law? No word has been said in defence of it to-day, and though originally it was engrafted upon the common law by the judges, I think we may well 1121 remember that in the experience of latter times even the judges themselves have expressed strong dissent from it, and have, in many cases, refused to extend its application. I must say that in the case of two men working together, one, say, for thirty shillings, and the other for thirty pounds a week, that they should be regarded as being under this law as in the position of common employment, is on the face of it ridiculous and absurd. Sir, when we are questioning the rectitude of that law, it may be well, I think, to remember the great change which has come over the industry of the country since the judges declared it to be part of the common law of the land. I do not condemn in such strong terms as some have used the grounds upon which the judges originally enacted practically that law, because that was the period of what I may call "domestic industries" and of labour in small workshops, where it was comparatively quite possible for a workman to know his brother workmen, and to undertake, as the judges said, the risk of common employment. And in those days, too, the number of workmen was comparatively small, and it was quite possible that the individual workman might have taken into account that risk, and obtained some compensation for it in the wages given to him. But all that passed completely out of date with the rise of the factory system, and the law which once had possibly some justification is utterly out of date to-day, for, in dealing with the increased number of men, it is impossible for each to know his mate, and we know that wages are regulated by a common rate more than by bargaining with individual employers. So we may speak of the doctrine of common employment as not only condemned by the judges, but as an obsolete survival which ought not to continue tiny longer as a part of the law of this country. I think it carries with it an injustice which has frequently taken the workmen altogether by surprise, and instead of giving him his just legal rights, has made him the object of municipal or personal benevolence, a position in which, under a just law, he ought not to be placed. I can imagine no stronger case in which it may be said that law and equity are two things which God has joined together 1122 and which man has put asunder. In the history of this branch of the law a change took place in the common law at a comparatively remote period, and it is utterly out of joint with the demands and circumstances of to-day. And yet the hon. Member for Stroud said it was premature to make an amendment of the law in this direction. Sir, it is never premature to remedy an injustice, and it is never too early, in the interests of employers themselves and of the general industry of the country to see that, as far as we can, the laws regulating labour are just. We have, then no alternative but to remedy the present state of things, and place the law upon a just foundation. One ground upon which it was said that it was premature was that we had so recently passed the Compensation Act; but I look upon this Bill as altogether supplementary to that Act. They have quite different spheres, and are independent of each other, and even if, as is now the case, there is compensation for accidents, that is no barrier, and ought to be no barrier, against giving workmen their just legal rights, and that is what is proposed to be done by this Bill. If I may so speak, there was a residual injustice loft by the Compensation Act, and this is now brought before the House for the purpose of being remedied. I can quite understand that when the House was dealing with the question of compensation, it might be prudent to say we are not willing to interpose delay with that which promises certain advantages; but now that we are dealing with the question upon its merits, or rather its demerits, it seems to me we can take no other course than to say that whatever has been done in the way of compensation, we have still something to do in the way of justice, so far as the common employee is concerned. I have heard some attack made upon the clauses under which this Bill may be made adoptive by the employer. I can quite agree that the wording upon that point is not, perhaps, the best chosen. When some of my hon. Friends say, as they do, that this may be a step towards the enlargement of the Compensation Act, I am very much disposed to say that it would have been a wise course if that Act had been made of universal application; and I say it for this reason, that it carries with 1123 it either a benefit to the community or a burden. If it carries with it, as upon the whole I think it does, a benefit, it should be generally shared, and if it carries with it an undue or unjust burden, then I think there will be more likelihood of a remedy if all have to bear it. But, Sir, I think that to have given the Compensation Act, and then to refuse to amend the doctrine of common employment, will be to exaggerate very greatly the sense of injustice which will be felt, and when a workman sees one of his class who has obtained compensation, and when he himself is debarred from that by a mere technical distinction, I think that the relations between employer and employed will not be improved. I think it would be a very wise thing if, in the case of those who fear an extension of the Compensation Act, they so amend the general law that the contrast shall not be between compensation and an unjust law, but to so amend the general law by the removal of this doctrine of common employment, for if that were done there may be less reason for extending the Compensation Act. Sir, the Compensation Act does very much in the direction of amendment by a new principle, but we must remember that there are many cases which are not touched by it at all, and to which this Act will be a very great relief. Only a few trades, and only half the whole of our workmen, are included within it, and there are many cases where the workmen must either make use of the Employers' Liability Act, or resort to the ordinary statutes or to the Common Law. I say, Sir, lastly, that, in addition to amending the law, as this Bill proposes to do, it will give an opportunity to the employer of voluntarily adopting a system of compensation. With regard to the question of contracting out, it seems to me that this Bill does not raise the general question; it only raises it in relation to the particular clause under which those words occur. Those words are very few in number, and if contracting out is not desirable, they can be dealt with in Committee. At any rate, we shall have done what we believe to be necessary for the interests of all classes by improving 1124 the law in a direction in which at present it requires amendment.
§ *MR. A. BIRRELL (Fife, W.)
I think, Sir, that some of us have been brought to the House under false pretences, because, when looking, as I naturally did, at the outside of the Bill, I saw the words, "Common Employment Abolition Bill." I thought the House was to be invited to attend the funeral of this doctrine of common employment, which has for 50 years had a baleful place in our jurisprudence, and has prevented a great number of working men from obtaining that compensation which fairness and justice demanded that they should have. But, Mr. Speaker, I find that this Bill is unnecessarily mixed up with another question altogether—namely, this second clause. Now, if it is true, as everybody who has hitherto spoken says it is, that this doctrine of common employment has not a single friend, if everybody admits it should cease to exist, surely this is a golden opportunity, which the promoters might avail themselves of by consenting to strike out an irrelevant part of this Measure. Lot me confine myself to the question of the abolition of this doctrine of common employment. Everybody in the House is opposed to the doctrine of common employment, I presume, and, if that is so, I should like to be allowed to say a few words over its corpse, because this is an extraordinary example of the way in which doctrines—mystical doctrines—are made a fetish of, because nobody understands what they are. I remember perfectly well that, when I first contested my present constituency, I was brought face to face with this doctrine of common employment. I was acquainted with its origin and history, and had the most pronounced contempt for it. It was a judge-made addition to our laws, intended to cut down the bonâ fide operation of our common law, by Which, for centuries, men were made responsible for the wrongful acts of their servants acting within their proper scope of employment, and it was not until Lord Abinger evolved this doctrine in 1837 that our common law was cut down in this way. But, nevertheless, I was so 1125 surrounded by grave and pompous men in my constituency, who assured me that the industries of this country could not be carried on if this wonderful and magnificent doctrine were in any way attacked, that, I am sorry to say, I was so affected by these persons that I very reluctantly insisted upon, reserving for myself a free hand in the matter, and I therefore came to the House un-pledged as to this doctrine of common employment. Well, what happened? In 1893 my right hon. Friend the Member for East Fife brought in a Bill which would have operated against this doctrine in a most deadly manner, and I thought, now surely we shall hear from its advocates something in defence of a doctrine that has existed in this country for the last 50 years, and has kept tens of thousands of pounds out of the pockets of the working men. What really happened? Not a single employer of labour, during the discussion on the Bill, raised his voice on its behalf, and I then discovered that this doctrine of common employment, instead of being admired and worshipped with veneration by the employers, was treated by them with the utmost indifference. Now, if it be true that this doctrine is universally despised and condemned, if we all recognise now that it is a thing of recent origin, that it has never done any good, and that no evil consequences will flow from its disappearance from our jurisprudence, why should not the House seize the occasion to do an honest piece of work, and abolish it pure and simple, and leave the rest of the Bill to stand over for some future occasion for discussion? Why should the right hon. Baronet encumber this question by exciting the susceptibilities of gentlemen who sat around him? It may be that these fears, which still attach to some minds, will be dissipated in time, and the Act of last year extended to all classes of the community. But hon. Members do not yet know the facts, or what effect this new Act will have upon the industries of the country; that is still a subject-matter of fair discussion. Nobody can yet undertake to say how much additional expense that Act will impose upon the employers of labour. In these circumstances, why should the right hon. Baronet, having this favourable opportunity, 1126 having the House all converted to his views, throw away this golden opportunity simply to have the second clause referred to a Select Committee, from which it will probably never emerge? This is a matter supported by everybody, and nobody will rise in his place and say a word in favour of this doctrine, because there is a common consent against it. If that be so, I do really think that we may confirm the hon. Gentleman who has just spoken in his remark that this is in no way an extension of the Bill of last year. The abolition of the doctrine of common employment will in no way interfere with the great Bill of last year. One objection which I had to the Bill of last year was that it did create a sort of rival establishment to our Courts of Justice, and it did say to a, certain class of workmen, "If you only come in under the operation of the new law, you shall not be troubled with common employment," and the result was that the doctrine of common employment, which even then was recognised as indefensible, was taken off the working-men under that Act, and left tied round the neck of the working-men who did not come within the scope of that Measure. That is a very unjust and unfair thing, for I think that Governments ought to pay attention first to the general interests of the community, and see that our general laws, which are applicable to all classes, are in accordance with justice and fairness first, and then deal especially with other trades and industries. I do think that, having got rid of the doctrine of common employment in the great trades and industries, we also ought to get rid of it for all the rest of the working-men of this country. Surely that is a sufficiently important work for one afternoon; and here again I must point out to the right hon. Baronet, that by limiting this Bill to the Act of 1880 he excludes domestic servants and seamen, and possibly some other classes of Her Majesty's subjects. Consequently, the Bill does not bear out the terms of its designation as a Bill for the abolition of the doctrine of common employment. I should like to see the doctrine of common employment got rid of altogether. Nobody defends it. It is a thing of yesterday. It was evolved by a very rhetorical judge, who had not in his 1127 mind the same thing we are now dealing with at all. The cases which agitated his mind were domestic cases, such as that the master would be liable to a footman for the negligence of the chambermaid for putting him into a damp bed, and so on; cases such as that excited the imagination of Lord Abinger, and it was very well said by Lord Esher that the law as to non-liability of masters with regard to fellow-servants arises from the ingenuity of Lord Abinger. Once these doctrines were set going, they were extended by the judges in the most extraordinary way altogether, so that now, if an unfortunate labourer meets with an accident, in consequence of the carelessness of anyone who is held to be in the same employment, they are supposed to have entered into a contract with one another to run this risk, and damages cannot be recovered. Take the case of platelayers, scaffolders, lucifer-match makers, carpenters, and so on. I am quoting from a work on the law of negligence, in which all the cases are cited in order to show how far the law has gone in this direction. And here we all agree that this doctrine of common employment should not exist, and yet we stand the risk of losing its abolition by the pedantry of the right hon. Baronet. We are running a very great risk indeed of going away without accomplishing a reform of the deepest value to the community. I do hope that the right hon. Baronet will not allow the pride of authorship to prevent him from throwing aside the second clause, and confining his most useful Measure to the first clause. That is what he must do if we are by this Measure to kill the absurd doctrine of common employment.
§ *COLONEL H. B. H. BLUNDELL (Lancashire, Ince)
The doctrine of common employment may, I think, be abolished generally, but there must be limitations. I venture to say that if the doctrine of common employment is to be abolished, care should be taken to protect those employers who actually work with their men—for instance, the blacksmith and his mate, or the carpenter and his assistant—that they should be placed in the same position as the men, so that each man should bear his own burden.
§ SIR JAMES JOICEY (Durham, Chester-le-Street)
I was one of the strongest opponents to the Compensation Act, so far as limiting the operation of that Act was concerned, to a certain number of employers only. What does this Bill propose to do? It, first of all, selects all employers outside the Compensation Act, and it proposes to abolish the doctrine of common employment, so far as they are concerned. It leaves all other employers entirely in the same position as they would be if this Bill were not passed at all. As I understand the Compensation Act—possibly I may be wrong—the position of the working-man is this: that he is bound to proceed either under the 1880 Act or the Employers' Liability Act, or the Compensation Act. As I understand it, by proceeding under the 1880 Act, the workman would be tied down altogether. I may be wrong, but that is my impression. If that be the case, it puts the workmen who proceed under the 1880 Act in a different position from the men who proceed under the other Acts; in point of fact, it makes the question much more conflicting than it is at present, and, under these conditions, I certainly support my hon. and learned Friend, who has made such an excellent speech, in his endeavour to do away with the doctrine of common employment altogether. Well, Sir, with regard to the abolition of contracting out. I have always voted against any contracting out, but at the same time I have always been ready to assume that it is a very difficult question. Other people may hold different views, but my reason for holding these views is the reason held by many. There are many cases where, undoubtedly, so far as I am able to judge, it has been to the advantage of the working-man to contract out of the Act, but I know there are great differences of opinion. I think myself that, so far as the abolition of contracting out in this Act is concerned, it is never likely to be done. What employer would like to abandon his right given him by the Compensation Act? Suppose you were to give the boon to every employer of abandoning the Compensation Act, and coming under the Employers' Liability Act; do you think there would be the least doubt 1129 as to the rush of employers to avail themselves of that boon? I am sure, so far as contracting out, is concerned, when contracting out has to be dealt with by coming under the Compensation Act, that it will not be availed of by any empoyer. I am surprised at what the right hon. Baronet opposite has said as to the exclusion of seamed. I was under the impression that he was a champion of seamen, as he has had a great deal to do with ships. I am certain that, if I were to exclude seamen, I should think I was doing a very great injustice to a large section of the working people of this country. When you consider that, often when a seaman is lost, his wife and family come on the rates, I think it is unjust to the other employers who pay the rates, and who come under the Compensation Act and the Employers' Liability Act, that these men should be excluded. I hope, therefore, that in the Committee stage the right hon. Gentleman will agree to include seamen. Well, Sir, I confess that I think that if we pass this Bill it will complicate matters very much, when you have to deal with the extension of the Compensation Act to other industries. I think there are few Members who will not agree with me when I say that sooner or later all employers, certainly those employers who are engaged in dangerous occupations, must come under the Compensation Act; and if you pass this Bill in its present form you will complicate the matter seriously, and the first argument that will be brought against us will be that already the employers who are outside the Compensation Act have special burdens put upon them by the Bill now submitted to the House. I hope, therefore, that the House will not make this a partial Measure, but will agree with my hon. and learned Friend behind me when he says that the doctrine of common employment ought to be abolished altogether. I shall vote for the Second Reading of the Bill, because I believe in the principle of the Bill, but I reserve to myself the right, if the Bill in Committee is not amended by the insertion of clauses which I consider just, to oppose it.
§ MR. B. WHITELEY (Stockport)
Mr. Speaker, I do not desire, nor do I intend, to prolong to any length this Debate; 1130 but I rise to urge, and to urge as strongly as I can, the Government to consider the entreaties that have been made to them from all parts of the House to support the Second Reading of this Bill, and deal with it in Committee of the full House, or send it to a Grand Committee. I support the Bill because, broadly speaking, I am opposed to all discrimination and differentiation of treatment between one class of workpeople and another, and anything that tends to remove that, different treatment will always obtain my vote in this House. I supported last year every Measure proposed in this House for bringing all classes under the scope and purview of the Compensation Act then passed, and I am now even more strongly of the opinion I held then, that every workman, whoever he may be, or whatever may be the character and the nature of his employment, or the locality in which he carries on that employment, has an equal right to have his life and limb protected by this House. I listened attentively to the speech of the hon. and learned Member for Stroud. I am generally unfortunate in being obliged to disagree with what falls from that hon. and learned Gentleman. It seemed to me that the whole of his contentions and arguments might be summed up in one query—namely, "When is a workman not a workman?" And the answer to the conundrum is, "When he does not belong to or work in the dangerous trades." He argued that this question should be dealt with as a whole. That was very different to the argument of the hon. and learned Gentleman last year. We desired then a final Measure dealing with the whole question, but the Government, in the exercise of its discretion, did not carry that out. I think it was a mistake not to have done so. But I think we should be unwise to-day, because we cannot get the whole question dealt with, to refuse this large slice of legislation. This Bill deals with one of the greatest industrial questions that have ever been argued in this House. With regard to contracting out, I do not see why that should be dragged in. If the House is desirous or prefers to pass the Bill shorn of its second clause, well and good; but if it passes the first clause, which, I think, is desired by all, it will be most beneficial to the working classes of this country. 1131 Therefore, before I sit down, I urge, speaking for a large industrial community, the Government to pass this Bill, and if they do that they will earn the gratitude of many thousands of the working people of this country.
§ *MR. F. MADDISON (Sheffield, Brightside)
Mr. Speaker, I rise to support the Second Reading of this Bill, which is, in my opinion, a small instalment of a long-delayed act of justice to the workmen of this country. I also share the regret that the Bill has dealt with any other matter than that of common employment, because it has evidently given hon. Gentlemen opposite, in the earlier part of this Debate, at any rate, an opportunity to raise the cry that we are attempting to deal with an Act which has not yet come into operation. But, Mr. Speaker, we have also heard a great deal about the novel principles of the Compensation Act of 1897. Well, I venture to say that some of the greatest novelties of that Act are to be found in its exclusions. When you have two carpenters living in one house, working for the same firm, and yet a question of a few inches of height determines whether one shall come under the Act or not, you have an anomaly, which hon. Gentlemen missed the opportunity of removing during the Debate last year. And, then, I am also confronted with this anomaly, that under the Act of last year an employer, however good he may be, is made responsible for the act of the Deity—for the act of God—and yet another employer, who may be just as bad as the other is good, is not made responsible for the gross negligence of some men that he either has taken no trouble in the selection of or whom he has positively appointed, because they are cheap, and are, therefore, very likely incompetent. Then, I should like to say, Mr. Speaker, that, however novel the principle of the Compensation Act may be, the trade unions of this country never demanded it, that they did demand, and have demanded for years, principles which were well met in the Bill of the right hon. Member for East Fife. Amongst the virtues of that Bill was the fact that it did abolish, amongst other evils, that of common employment. Now, Sir, I appeal to the Government to 1132 deal with this question, bearing in mind that they left out of the scope of the last Act some six millions of workers. Not only were those men and women left out of a new piece of legislation, but they were left absolutely to the tender mercies of an admittedly bad law. The right hon. Gentleman the First Lord of the Treasury, speaking at Manchester in the early part of the year, said, and very truly, that the present employers' liability law was bad by common consent. Well, now, Sir, I have no knowledge of this House beyond a few days, but I should have thought that if there was a great industrial law that was bad, and that all parties on both sides of the House admitted it to be bad, their interest in the workmen would lead them to take the earliest opportunity to reform that law and make it good. I venture to say, Mr. Speaker, that, although I regret that this Bill did not confine itself to the abolition of the doctrine of common employment, we have an opportunity, and the Government has a still greater opportunity, to make this Bill something that will go a little way towards the rectification of this admitted abuse. Now, Mr. Speaker, it will be wrong of me to obtrude myself upon the House any further, except to say this: that when I read the speech, for instance, of the right hon. Gentleman the Secretary of State for the Colonies, in May, 1894, I think it was, in which he declared that the legislation that his Party intended to introduce and pass would apply to every accident and to every workman in the country, and when I find that about half the number of workmen are left out, I do submit, Sir, that that in itself is sufficient, or ought to be sufficient, to induce the Government to do something to remedy what I believe to be a great wrong. By that means they would at least remove very serious and very growing doubts in the minds of the organised workers of the country as to whether the last Act was not more political than industrial.
§ SIR EDWARD CLARKE (Plymouth)
Mr. Speaker, my right hon. Friend who proposed this Bill is apparently to be congratulated on the very general unanimity in the House with regard to this principle, but I think he has probably 1133 had sufficient experience of Wednesday afternoon Debates in this House to know that there is a good deal underlying that unanimity, and not to feel quite so sanguine as a new Member of the House would be, that the future of this Bill is beyond doubt. Upon the main principle of the Bill itself I have only a few words to say. It is interesting, to one who remembers the discussions on the Employers' Liability Bill in 1880, to hear now the terms in which the doctrine of common employment is spoken of. I made a speech in 1880 in this House advocating the entire abolition of that doctrine, and from that day to this I have maintained the opinion I then held, and now hold very strongly; but it was the Attorney General of the Liberal Government in that year who said, with regard to the abolition of the doctrine, that—He did not think the House was prepared to accept that view, for the total abolition of the defence of common employment would cast such a burden on the employer, and cause such a disarrangement in the rate of wages, that the principle could not be regarded as practicable.These are the terms in which the abolition of the doctrine of common employment was met at that time. It seems we are all of one mind now, and I am glad that it is so. That doctrine is not so absolutely contemptible, and without explanation, as several hon. Members to-day have thought it. It rested very much upon the doctrine that a man who took payment for going into employment was compensated if, in the course of that employment, he might be exposed to accident and injury through the negligence of men working with him, and he took that as one of the risks of the employment which were paid for in the wages which he received; and, although we have got far beyond that now, I am glad to say, after the acceptance by the House last year of the Workmen's Compensation Act, it would be futile to go back to discussion on the doctrine of common employment; still, that doctrine is not so contemptible and without excuse as certain hon. Members seem to think. I am very much disposed to agree with two or three of the later speeches we have heard from hon. Members on the opposite side of the 1134 House that it would have been wise for my right hon. Friend to have confined himself to the first clause of his Bill, and by that clause to have secured the abolition of the doctrine of common employment; and if we were prepared to go forward with a Bill containing only that clause, as he has proposed it, I think it might well be that in the course of the present Session we should do a real service to the industrial community of the country. But I am bound to say that, having listened to every speech made in this Debate, I think the speech which most assists the progress of this Bill was the speech we have heard from the right hon. Gentleman the Member for East Fife, because he pointed out that this was an opportunity for abolishing the doctrine of common employment. He referred to the imperfections of the Act of 1880—imperfections which—some of them—I am very willing to admit; but he referred to the imperfections of that Act as not including, for instance, seamen and domestic servants within its provisions; and he also complained of the requirements of that Act with regard to notices of accidents, which, he said, ought to be amended. If he proposes, or if his friends propose, to try and use this Bill as a means for altering the form, substance, and extent of the Employers' Liability Act of 1880, well, then this discussion in the House to-day will have been absolutely futile and wasted. It is quite impossible for hon. Members opposite to draft upon this Bill, and to try and get through the House provisions which would alter the scope of that Act and modify its provisions with regard to the notices to be given. I am sure that it can only by a sort of general consent on the part of the House that this Bill might abolish the doctrine of common employment, leaving the Act of 1880 in its present condition, and with its present limits, but amending it to this extent, and this extent only. It is only by that means, I think, that this Bill can be got through the House. I should like to say, with respect to this doctrine of common employment, that I made an attempt last year, when the Workmen's Compensation Bill was before the House, to obtain the introduction of a clause which should abolish it; but having failed in that. I joined one of my hon. Friends in immediately proposing a Bill 1135 which, in a single clause, would have abolished the doctrine of common employment, but I have a very great doubt indeed with regard to the second clause of this Bill. It seems to me a clause which involves a very different discussion, and which, before its adoption, would require very careful investigation of matters of fact, and which, if it were adopted, would have to be fenced and guarded by many provisions, which I do not find at present in the Bill. It is proposed that this Act shall not apply to any employment to which the Workmen's Compensation Act of 1897 applies, but it shall be lawful for any employer outside the Compensation Act of 1897 to agree with his workmen, and to give notice, by publishing it at his works, that he will place himself within the provisions of the Workmen's Compensation Act, 1897. I do not think that would be a satisfactory method of legislation. I do not think it would be satisfactory or good that you should have a number of employers in the same trade, all professing to be bound, not by contract, but some of them coming in the principle of the law, and some of them remaining outside. As the Bill stands, a particular employer might, for one, two, or three months of the year, be under the Workmen's Compensation Act, and then, by taking down his notice and giving a week's notice to his workmen, pass out from it again, and not be bound by its clauses. I do not think that that is really a practical way of dealing with it. But even if I saw no difficulty in the technical part of that clause, or in the requirement for it to be supplemented, I should certainly think that the House of Commons ought to pause before passing such a section, while the Workmen's Compensation Act itself has not yet come into operation. Before such a clause should be adopted, there ought to be an examination by a Select Committee of the circumstances to which it would apply, and to the way in which the House might best be advised to provide for the different circumstances of different trades. It is obviously useless to have an inquiry now to investigate the question of the extension of the Workmen's Compensation Act of last year, when that Act has not yet come into operation. And I venture to think, for these reasons, that the second clause of this Bill is one which the House would 1136 not be wise in accepting, and the discussion of which will only embarrass us in doing what we ought all to desire—namely, to abolish the doctrine of common employment. There is one word more I should like to say with regard to the future conduct of this Bill. I hope, what ever the Government may do, that the House may be unanimous to-day in its declaration of opposition to the doctrine of common employment, because, if we gain nothing else, we shall gain something by a unanimous expression on that point. Whatever course the Government may take, I hope they will not send this Bill to a Grand Committee. It is a most unfit and inappropriate Bill to be sent to such a Committee. If it is to be left in the simple form my right hon. Friend has proposed as regards the doctrine of common employment, that is to say, if it is to be limited to the Amendment of the Employers' Liability Act of 1880, by striking out the defence of common employment, I think it would be a very useful Bill. It is a short and simple Bill, and the House might very well pass it into law. But if it is threatened, as I think, from the speeches I have heard, it is, that an attempt will be made by Amendment to enlarge the scope of the Act of 1880 itself, and to bring large bodies of people within its scope who are at present outside; if it is intended to propose Amendments to alter the scheme of that Act, then it will be most inappropriate to send it to a Grand Committee where matters would be raised and discussed quite important enough for the full cognisance of the House itself. I am sure the House would not think it right to allow such matters to be dealt with by a Grand Committee, and the only result of sending it to a Grand Committee would be that we should occupy a certain amount of time, and have the closing days of the Session impeded and crowded by the necessity for further discussion on this Bill. If it is to be carried at all, it must, I think, be carried in a simple form, professing to do one thing, and one thing only. That is a thing which the Committee of the whole House would be perfectly compelled to do, and I hope the Government will not, at all events, send it to a Grand Committee.
§ *MR. A. D. PROVAND (Glasgow, Blackfriars)
Mr. Speaker, I think that the Members of the House generally will agree with what has fallen from the lips of the hon. and learned Member for Plymouth that Amendments, dealing with the notices to be given, and other details of the Act of 1880 would retard the progress and endanger the Bill; but I think there is one further Amendment which might be proposed with advantage to this Bill. It will be generally admitted that the Act of 1880 proved a failure in some respects. It gave too many facilities to create law suits, and in almost the whole of them the defence was based on two grounds—the doctrine of common employment and contributory negligence. I therefore think an addition should be made to the first clause, setting out that contributory negligence will not form any defence to a workman's claim for injury. This might, be done by adding Sub-section C of Section 1 of the Workmen's Compensation Act to the first clause of this Bill. I think with many of those who have spoken that the Act should be as simple as possible, and that therefore it will be impossible to engraft upon it many of the improvements which were put in the Compensation Act of last year. If the Bill is kept in a simple form it is possible it might become law on the 1st July, when the Workmen's Compensation Act will also become operative. I am afraid it will be impossible in any Act that is passed to avoid complications, because, at the present time. I think a workman may sue in four different ways—under the Act of 1880; under the Common Law, after the 1st July next; under the Workmen's Compensation Act; or in case of death his friends may sue under Lord Campbell's Act. As it will be impossible by any Bill that is passed this Session to free the question from complications, I hope that it will be as simple as possible.
§ *THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Sir M. WHITE RIDLEY,) Lancashire, N., Blackpool
I think the House will agree that we have had an interesting and nonparty discussion upon this subject, which, though hon. Members possess a 1138 large amount of knowledge, is still not without its difficulties. I confess that I have not been particularly delighted that my right hon. Friend should have again raised this question, after so many hours spent last year in attempting to settle it in relation to the greater portion of those who are subject to accidents in dangerous employments. At the same time I must say that it is to me, as it ought to be to the Government, a pleasure to know that the principal complaint against the Act of last Session is that it did nut go far enough, that the real and substantial grievance is that seamen and domestic servants and other classes are not included in it, and that from every quarter of the House it is said to be a beneficent and useful Act. I am not called upon at the present moment to defend the action of the Government; but what. I have to do is to make a few observations upon the Bill which has been introduced by my right hon. Friend, which purports to be—although I do not think it is—a Bill for the abolition of the defence of common employment. The House is aware that for many yeans a large amount of controversy with reference to labour questions has centred round this important point of the abolition of common employment. The Act of 1880 dealt in a qualified manner with the abolition of that doctrine, or only made such encroachment upon it that it left it to a certain extent still intact. The Bill of my right hon. Friend opposite (Mr. Asquith) in 1893 proposed to abolish the defence of common employment altogether, and upon that occasion the general consent of this House and the other House of Parliament was given to that abolition. Although I have not had an opportunity of referring to the DEBATES, so far as my own memory serves me, no one got up either in this House or the other House to make any substantial defence of the doctrine of common employment. At the same time it is only fair to say, following the observations of my hon. and learned Friend behind me, that there is no consensus of opinion on the part of learned lawyers and judges, or on the part of experienced laymen either, that there is not something to be said for the doctrine of common employment. I do not believe that it is altogether a novel 1139 doctrine within the last 20, 30, or 40 years. On the contrary I am under the impression that up to the year 1837, which was the first year in which it was challenged, it was a real defence on the part of the employer in an action at common law. But however that may be, the basis of the arguments from the Opposition, including my right hon. Friend opposite me, in 1893 was that there was a general belief that the doctrine of common employment was not a sound doctrine, and that it would be for the advantage of the industrial classes in this country, and not to the disadvantage of employers, if that defence were abolished. If there was any opposition given to the Bill of my right hon. Friend—and there was opposition—it was rather directed to preserving in that Bill the possibility of contracting out than to decrying the proposition he sought to establish, that the defence of common employment ought to be abolished. That was the position of affairs when the present Government undertook last year, in accordance with the general feeling of the country, and with the pledges given both to the House and at elections, to deal with the matter. We have dealt with the matter by a distinctly new departure. The view we then took was that, instead of leaving the common law as it stood, giving a general and unlimited right of action to the working classes for accidents sustained in the course of their employment, it was better to confer wider privileges, in a sense, on the working classes, but at the same time to define them by a reasonable limit, which found general acceptance in the House. The legislation of last Session was certainly intended by the Government and accepted by the House and the country as a more satisfactory way of dealing with this question of abolishing—as it did, in regard to the particular classes brought within its operation—the doctrine of common employment. I must say that my right hon. Friend ought to have given a little time to the experiment which is now being made before he introduced his Bill. It is the absolute truth that many Members would like to see the operation of the Act of last Session extended, and it is the avowed opinion of the Government, from which they do not depart, that the 1140 Act ought to be universal. I cannot argue that over again, because we then showed conclusive reasons that if you desire to secure practical legislation you cannot bring in a Bill which would at one blow place domestic servants, seamen, agriculturalists and others under the same law as to compensation as we found it practical to apply to various other classes of industries. At the present moment what are we asked to do? We are asked to assent to the general proposition that the doctrine of common employment ought to be abolished. I am ready to admit that in introducing the Bill of last year, and in the action which the party to which I belong took on the Bill of 1893, we admitted that we did not think that the law in that respect stood on a satisfactory footing; and—although I do not say that there is a general consensus of opinion on that point—we are not stopped from saying that we believe the law of common employment, in respect to those trades which are outside the Act of 1897, is not satisfactory. I am quite ready to make that admission to my right hon. Friend who introduced this Bill, and to everybody who takes an interest in this question. But, Sir, I think that is a very different thing from dealing with it in the way proposed by my right hon. Friend. So far as I am able to understand this Bill, I think it confuses the law on the question. I think that when you examine the proposals of this Bill you will see that it does not do what it purports to do by its title; and as a matter of practical legislation it seems to me almost impossible that a Select Committee, or a Grand Committee, could really put it into shape. The Bill purports to be a Bill for the abolition of the defence of common employment in the case of injuries to workmen who are not within the Workmen's Compensation Act of 1897. As a matter of fact, it confines itself entirely to those workmen who possess the advantages of the Act of 1880.
§ *THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Those who can proceed under the Act of 1880, and they have the advantages of it. That, of 1141 course, excludes the whole class of seamen, and I have a right to ask my right hon. Friend what are his proposals? I think it is a fair argument to ask what will happen if this Bill is read a second time. The first thing that would happen would be an attempt to extend the Bill to domestic servants and everybody else. Under this Bill it is not proposed by my right hon. Friend, the Member for Ormskirk to abolish the doctrine of common employment as regards domestic servants, and I am certain there is no man in this House who will deny that there is something to be said for approaching this particular class of employment with more caution, and wish more limitations than need be observed with regard to general employment. Therefore, if this clause, as drafted in the Bill, only includes those workmen who have the benefits of the Acts of 1880—which is practically only a small addition to those who come under the Act of 1875—we are practically using this Bill as a means for introducing measures for the general improvement of the Act of 1880. I do not view with particular pleasure spending several days with the discussion of a point like that. The arguments of the hon. Gentlemen who have recently addressed the House, no less than the argument of my learned Friend behind me, the hon. Member for Linlithgow, point to this, that if we once were in Select Committee, or Grand Committee, or General Committee, dealing with this question, of common employment, we cannot—every man of sense must see that we cannot—stop short at this limited class who come into the Act of 1880, but that we must go into the wider question of whether all the other classes ought not to be included. That is a question which requires the most serious argument and consideration, and this Bill is not adequate for that purpose. Then, again, this Bill refers only to proceedings under the Employers Act of 1880; but in proceedings under that Act no defence of common employment can be pleaded; it appears to me that the Bill proposes to abolish a right that does not exist. That may be only bad drafting, but, in dealing with a great principle like this, the House should not 1142 be asked to discuss a Bill which, on the face of it, does not do that which it purports to do. I do not wish to say much about the question of contract. I have tried to understand the words in the first clause of this Bill—"notwithstanding any contract to the contrary." I should have thought, with the hon. Member for Ling's Lynn, who spoke earlier in the Debate to-day, that that means a contract under which the employer is at liberty to make his defence upon the doctrine of common employment. Does it mean that? I imagine, however, from the second clause, which has already been criticised, that it is intended that these words in the first clause really forbid contracting out altogether, except under the powers given in Clause 2. Once stated, that proposition involves a great deal of discussion on the question of contracting out; it involves the consideration of a great many propositions and safeguards. I do not quite agree with the late Home Secretary in what he said on contracting out. We, at all events, on this side of the House have been pledged from the very beginning of the discussion to provide for what we think is a legitimate form of enabling a workman to obtain from his employer better terms than he would get under the Act, always taking the precaution that he shall not be worse off than under the privileges which the law will give him. There is no intention in the insistence we make upon the clause for contracting out, that an employer should be enabled to make it a condition of employment that the workman must enter into a contract. Again, Clause 2 of the Bill provides that the employer may elect to come under the Act of 1897; but it proceeds to say that such election must be really a contract in writing signed by the workman also; or that it may be by notice fixed in places open to the workmen in such a position that it can be easily seen and read. It is rather difficult to understand what that clause means. If it means that the employer is at liberty to contract himself out of the Act, and come under another Act simply by notice, I do not think that is a proposal to which the House will readily agree. And if it be an argument that there is no inducement to the employer to come under the Act of 1897, 1143 then I am not quite sure that I agree with that, because, under the Act of 1897, the employers' liabilities are more defined than they would be under the Common Law, or under the Act of 1880; and, if a master knows what are the limits of the risks he is undertaking, it is more easy for him to provide for them either by insurance or otherwise. Therefore, I associate myself with a great deal of the destructive criticism that has been passed upon this Bill. And if, as is customary on Wednesday afternoons, the House were asked to express a sort of abstract opinion that it was desirable that the defence of common employment should be no longer a valid defence, I have, for one, already given my assent to that proposition; and, what is more important, the present Government have given their adherence to that view. Indeed, the action of both political parties has been in the direction of not desiring to defend or maintain in its present shape the doctrine of common employment. But it is a very different thing to be asked to assent to a Bill which appears to carry out very incompletely and unsatisfactorily what it pretends to do. I can imagine many hon. Gentlemen in this House who can satisfy their consciences by giving a vote for the Second Reading, careless of what may ensue. I have done so myself before, in the belief that an expression of opinion in favour of the Second Reading of a Bill, which might or might not proceed further, would show that I adhered, in a vague, way, to its principle, and desired to do my best to promote it. That is one way of viewing a Bill of this kind. But, perhaps, in this case, I am in duty bound to look at the question from a rather more practical point of view, and, while not at all disagreeing with the proposition that we ought to proceed in the direction of relieving workmen, not included in the Act of 1897, from the doctrine of common employment, I cannot see my way to support this Bill, which appears to inadequately and unwisely attempt that which it professes to do. I signified last year, and now repeat our hope, that we, or our successors, may be enabled to extend to other industries of this country, gradually and as time permits, what are admitted to be the benefit's of the legislation of last year. But 1144 I do think that it will lead to confusion in the law if we are enabled by this Bill, especially as it now stands, to permit an employer to come under the Act of last year as he and his workmen please. In that way you will have workmen in one part of the country acting under a totally different law from workmen in another part; and also you will be extending to those workmen, by way of benefits, that which we have expressly desired to avoid—the benefit of increased rights of action—instead of giving them the certain compensation which we provided in the Act of last year. I cannot help thinking that those who really believe in the equity of the Act of last year, and desire that, as time and opportunity permit, and under the varying conditions which must be necessary, the Act shall be extended to other classes of workpeople, will feel that the time is likely to be postponed for the arrival of those principles and that legislation if you endeavour to deal, in the manner now proposed, with all those trades outside the Act of 1897. For my own part, while not unfriendly to the general tone of this Bill, I cannot say that I am prepared to support it, and the Government are not prepared to support it. But, if the House is of opinion that the Bill should be read a second time, it is not for me, on behalf of the Government, to offer any opposition. As to the suggestion to send the Bill to a Select Committee, I do not think the House desires to see it killed by what an hon. Member called "an unfriendly act," and, therefore, I should say that the Bill ought to be considered in a Committee of the whole House. Therefore I hope I shall not incur the hostility of my hon. Friends and those who have appealed to me if I say that I have no desire to strangle this Bill in any way. The Government leave it to the House to decide, while themselves feeling that the time is inopportune to raise these important questions, which they hoped were settled by the legislation of last year.
§ MR. SYDNEY BUXTON (Tower Hamlets, Poplar)
said he cordially agreed with the last proposition of the Home Secretary, that if the Bill were read a second time it should be then dealt with by a Committee of the whole House. He also 1145 agreed with, another proposition of the right hon. Gentleman, that the second clause of the Bill was unworkable. He conceded that there was great force in the argument that had been put forward, that it was too soon to endeavour in any sense to interfere with the Act of 1897. He thought that ought to be given a proper trial before any attempts were made to extend its provisions. He desired to see it extended to all trades, but he quite agreed that that ought not to be accomplished by a Bill dealing with some other question altogether, like Clause 2 of this Bill. The principle which they had been discussing upon this Bill was that of common employment, and he had listened with great expectation to the observations which had fallen from the right, hon. Gentleman in connection with that principle. The right hon. Gentleman had entirely thrown over the doctrine of common employment. He (Mr. Buxton) had listened to the speech with great disappointment, because the right hon. Gentleman, having thrown over that principle, went on to criticise the Bill of the right hon. Baronet, and he criticised it with effect, and at the end of his speech admitted that the principle as to common employment ought to be abolished. He (Mr. Buxton) thought the Government ought to introduce a Bill, but the right hon. Gentleman gave out no hopes that he would carry out, within a reasonable period, what he considered to be the alternative of common employment. The hon. Gentleman below the Gangway had said that this Bill would not affect the Act of last year, but it did to a certain extent. He (Mr. Buxton) was of opinion that the House would be wise, in spite of the criticisms which, had been passed upon it, to accept the Bill for Second Reading with a view of licking it into shape in a Committee of the whole House. He thought that in its present form the Bill was open to the many criticisms which had been presented against it, but that it was only right that it should be extended to include those cases which were at present excluded from the Act of 1880. He thought that the right hon. Baronet had done great service to the cause they had at heart in bringing in this Bill, and if he would consent to withdraw that part which had been so universally condemned 1146 it would greatly facilitate the passing of the Measure.
§ MR. C. FENWICK (Northumberland, Wansbeck)
I do not wish to deal with this question at any great length. I was very greatly impressed by the observations addressed, to the House by the hon. Member for Plymouth, and I thought he seemed to indicate in the course of his advice a method by which we might be able to get cut of the difficulty in which we are placed by the second clause of this Bill. He seemed to think that some suggestion had been made from this side of the House which indicated that there would be some attempt to extend the provisions of the Bill when it is read a second time, to enlarge its scope so as to interfere very materially with the Act of 1880. Although I cannot speak for others, I can speak for myself, and I can speak for those of us who directly represent the interests of labour in this House, and I say there would be no disposition on our part to extend the provisions of the Bill so as to materially interfere in any other direction with the Act of 1880. So far as it may be possible to influence Members on this side of the House, we shall use our influence to prevent any interference with the Act of 1880. The hon. Member for Plymouth indicated, with regard to the second clause of this Bill, that an undertaking might be given by the hon. Baronet who has charge of the Bill that that might be allowed to drop. We might then in Committee deal with the one clause, the abolition of common employment. I think that is the consensus of opinion, so far as the working men are concerned, and as we are directly interested in the great labour movements of the country we personally, so far as we are concerned, will certainly not attempt to extend the operations of the clause, and we give an undertaking that, so far as we can influence other Members, we will endeavour to dissuade them from that course, and we might arrive at a satisfactory conclusion on this matter if we discussed it in a Committee of the whole House.
§ *SIR A. FORWOOD
Might I rise to say upon Clause 2 that, after what has been said, I am prepared in Committee to drop Clause 2, and not to extend the remainder of the Bill to interfere with the Act of 1880 further than to abolish the doctrine of common employment?
§ *THE ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of Wight
What has fallen from my hon. Friend who has charge of this Bill has cleared the air with regard to the second clause. It was indefensible, and I think we should approach this matter apart from any complications of that character. But the House will pardon me if I point out to it the difficulty in which it is involved by simply assenting to the Second Reading of this Bill, there being nothing in it now but the first clause. The hon. Gentleman in charge of the Bill said he was prepared to ask for the Second Reading and drop the second clause, with the understanding that he does not intend to extend the operation of the Bill to the Act of 1880, except for the purpose of abolishing common employment. Sir, want the House to consider for a few moments what is the difficulty we should be involved in by simply assenting to the Second Reading, assuming there was nothing in the Bill now but the first clause. The right hon. Baronet has said that he would be prepared to drop Clause 2, though he is not prepared to do anything with the Act of 1880, except to abolish the defence of common employment. I must say, in passing, one word about our old friend, now, I suppose, dead—the doctrine of common employment. I was sorry to hear a man usually so accurate and usually so well-informed as my right hon. Friend the Member for West Fife make what I think he must admit—and I say it with great, deference—an unfortunate mistake. Mr. Speaker, the doctrine of common employment was not judge-made, but was part of the common law of England. I will demonstrate it in a moment or two, because I think it is right that, at any rate, the House should have put before it what I believe to be the true state of the case. The fact is that up to 1837, as has been pointed out by many learned judges, undoubtedly accidents had frequently occurred by which one workman had been injured by the negligence of 1148 another workman, but no attempt had ever been made to make the master responsible. It is not the fact that the decision of 1837 was new law; it was the enunciation of law which had undoubtedly been recognised for very many generations before. But, Mr. Speaker, I want to make this clear by an argument which must appeal to the right hon. and learned Member for West Fife, who is a Scotch Member. The judgment of the Scotch Courts came to the House of Lords in the case of Bartonshill Coal Company against Reid, and the House declared that the law of Scotland on the subject was the same as the law of England; and that has been laid, down, as will be seen from the judgment of Lord Cranworth in that very memorable case, which I will not trouble the House with now. And this and other cases which declare the law are only declarations of the common law of England. Great judges, such as the late Mr. Justice Willes, Lord Cairns, and others, have pointed out that there was reason and principle underlying the doctrine that the workman should be supposed to know the risks which he has entered upon when he goes into a particular employment; and they are risks from which the master cannot protect him, and for which he ought not to be responsible. But, Mr. Speaker, I quite agree that in some of its developments the doctrine has been carried to absurd lengths. What, we really ought to consider when we discuss this matter is, what safeguards can be provided to make the doctrine reasonable, unencumbered by the excrescences which have grown upon it. We are not discussing the important question of whether or not the doctrine of common employment, with its developments, should receive the approval of this House, or disapproval. This Bill does not attempt to deal with what I may call the main incidents of the doctrine, and to none of the various causes of action given to the workmen against employers by the Act of 1880 can common employment be pleaded as a defence. The inclusion of agricultural labourers, miners, or domestic servants in the Act of 1880 is a matter well worthy of discussion. But if we are asked to vote for a Bill, the only principle of which is that the doctrine of common employment 1149 should not be set up as a defence in actions in which it is not now a defence, then this afternoon will practically have been wasted. I gathered that the right hon. Gentleman the Member for Fife, whom, unfortunately, I did not hear, thought that this Bill will be the means of extending the Act of 1880. But if we are going to deal with the Act of 1880 itself, very different considerations arise from those which we have discussed this afternoon. In amending the Act of 1880 we cannot touch the question of common employment. But you can deal with a number of other points, such as notice, such as the amount of compensation, such as whether or not the workmen's interests are sufficiently safeguarded; and perhaps, what is more important, whether other causes of action must not be given than those I have referred to. Now, I have given the whole effect of the whole Act of 1880; I have not picked out points here and there. I desire that the House shall know, as far as I can tell them, what the Bill really contains. I believe that the Amendments which have been suggested in the course of the Debate for inclusion in the Bill would be out of order. But, so long as the Bill stands, as it does, with nothing but the first clause in it, I am bound to say that it seems crude and insufficiently thought out, and the House should pause before giving it a Second. Reading, and should wait until an opportunity arises when the doctrine of common employment can be fully discussed in a satisfactory way.
Motion made and Question proposed—
That the Bill be now read a second time.
§ The House divided.—Ayes 215; Noes 59.