§ For all purposes connected with or arising in or from a claim by an employee or by the personal representatives or the dependants of an employee who has died against his employer or the personal representatives of an employer who has died the liability of the employer created by this Act shall be deemed to be and shall be treated as if it were a liability for negligence and all the consequences flowing from and the incidents attaching to a right to or liabiliity for damages for negligence whether by Statute or at Common Law shall attach to a right to or liability for damages arising under this Act.—[Mr. Holland.]
§ Brought up, and read the First time.
§ Mr. Philip Holland (Carlton)
I beg to move, That the Clause be read a Second time.
The new Clause is designed to meet the objections of hon. Members opposite to certain words in Clause 1 as it now stands.
The hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) very courteously sent me a brief setting out in some detail the legal opinion which supported him in opposing the Amendment that we carried in Committee to place, as Clause 1 now does, absolute liability on the employer for damages in respect of an injury sustained as the result of a latent defect in equipment and so obviate the need to declare an employer guilty of negligence 904 in circumstances in which he could not possibly have been negligent.
Having studied the brief that the hon. Gentleman sent me, I am willing to agree that he may have some grounds for his misgivings about the implications of the Clause as it now stands.
But lawyers do not live on Mount Olympus, descending from time to time with the tablets of the law in one hand and a divine guarantee of infallibility in the other. There is nothing absolute about learned counsel or their opinions. Indeed, it may surprise some hon. Members to know that during the passage of the Bill it has not been completely unknown for hon. and learned Members to differ on the meaning of words—particularly the meaning of the word "deemed".
Hon. Members on both sides of the House will, I hope, agree that we have consistently pressed our opposition to what we regard as an objectionable feature of the Bill, as it was, on Second Reading, but at the same time we have made constructive attempts to provide a solution that will in no way dilute the purpose of the Bill. Therefore, acknowledging that hon. Gentlemen opposite have very serious misgivings about the implications of the words in Clause 1, to which I have referred, we are trying to meet their objections by moving the new Clause.
All the Clause does is to say that in law the employer's liability shall be exactly as if he had been guilty of negligence even though the circumstances were such that he could not possibly have been negligent.
In conjunction with the present wording of Clause 1 in lines 12 to 15 on page 1, the new Clause is an attempt to meet a very real objection to the Bill as originally drafted without in any degree varying the employer's liability in the courts.
I think it is appropriate for me at this point to pay a warm tribute to those employers with whom we have been in contact who have raised no substantial objection to the purpose of a Bill which is designed to weight the law heavily against them. They accept this as a new responsibility. Nevertheless—and it is understandable—they find it a little difficult to understand why it was necessary for them to be condemned of negligence when they have not been negligent. 905 I hope: that the sponsors of the Bill and the Solicitor-General will not obstruct the passage of the new Clause merely because of some illogical determination to allow no further change in the form of words in the Bill.
The new Clause is introduced—I want to reiterate this—only because of objections to our desire to obviate the necessity for declaring an innocent person guilty.
If it is felt that the drafting of the new Clause could be improved by Parliamentary draftsmen—though, with the high respect that I have for my hon. and learned Friend who drafted it, I doubt it—then I suggest that this could be done when the Bill goes to another place. On those grounds, the new Clause could be accepted now.
But, drafting apart, there can be no valid objection from hon. Members opposite to what the new Clause says. I cannot be sure that the same applies to hon. Members on this side, particularly those who have been more vociferous than I in promoting objections to the principle of declaring an innocent man guilty.
The new Clause is designed to try to help hon. Members opposite to overcome their objections to our genuinely felt desire, which has been expressed throughout the passage of the Bill.
§ Mr. Hugh D. Brown (Glasgow, Provan)
It might be for the convenience of the House if, at this stage, I moved my Amendment——
§ Mr. Speaker
Order. The hon. Member may talk about it but not move it at this stage. We can have only one Motion formally before the House at once.
§ Mr. Brown
However, discussion on the Amendment is relevant because it covers the point that has been spoken to by the hon. Member for Carlton (Mr. Holland).
The hon. and learned Member for Southport (Mr. Percival) is not here this morning, for reasons of which I have been informed. I understand that he is engaged on Parliamentary business. However, he has been the most active on what has been the main point at issue on Second Reading and in Committee.
906 I welcome the remarks of the hon. Member for Carlton. I have always taken the view that most what I might call progressive employers understand that this is not the creation of a new law but the transfer of one to them. I appreciate the concern that it does not, from a commonsense point of view, or from a legal point of view, seem right to deem somebody to be guilty of something of which he is innocent, and in ordinary criminal language we would all take offence at that. But we argued this fairly thoroughly, the matter was properly explained, and I do not think that any offence can be taken. Having lost the Amendment in Committee—if that is the right way of putting it—what I am now suggesting is that we should restore the Bill to its original form, with the addition of the word "also", which makes it clear that we are not trying to say that somebody is guilty when he is not.
I agree that this is basically a technical argument, and that the question is: what is the proper form of the principal Clause? As has been made clear, there is no question of substance or policy in the point under discussion. It is a technical matter, but it is of considerable importance to the Bill, because unless we get this right there is a real danger that it will create confusion and unnecessary litigation. I suppose that with any Bill, and certainly with one relating to this delicate and sensitive area of accidents and disablements, it is almost inevitable that there will be some litigation.
The history of the matter is that when the Bill was originally introduced Clause 1 provided that if an employee was injured by defective equipment, in the appropriate circumstances the injury should bedeemed to be attributable to negligence on the part of the employer.This formula of "deemed negligence" was disliked by some hon. Members. I think that everyone who spoke, certainly from the benches opposite, raised objections to it on the ground that it was distasteful to create the fiction that an employer had been negligent when he had not. To be fair to myself I must say that I made it clear all the way through that I did not share that opinion and concern. But, because some of my 907 hon. Friends had doubts about it in Committee, and because on that day we were a bit thin on the ground, I agreed to look at the matter again. The matter was, of course, discussed subsequently on the Question "That the Clause stand part of the Bill".
The original formula of "deemed negligence" was not used without reason. As everybody knows—and I think it is as well to make this clear—the Bill had been given a Second Reading, albeit a brief one, and had been considered in Committee. There had been ample opportunity for the advisers on the Bill to examine it properly. In other words, it was not left to me as a layman, or to the hon. Gentleman, to draft what we thought was the best wording for the Bill. It was only after careful study that that was regarded as the only safe way to operate this part of the law without danger of injustice to employers or anybody else.
I ask hon. Members to appreciate that the wording of the Bill is an attempt to take care of precisely the point which has been made without running into the danger of doing injustice to employers and all concerned. It is necessary—and this is now common ground—to ensure that all the legal incidents and rules connected with liability in tort, and no others, shall attach to the liability of employers, and this is particularly necessary in the interests of employers.
The fact that the hon. and learned Member for Southport and his hon. Friends have tabled this new Clause in the words used suggests to me that there is agreement, at least in principle, that there is no escape from the need to provide that liability of employers under the Bill must be deemed to be liability in negligence. I have no doubt that we shall discuss this at some length. The use of the phrase "liability for negligence" in the new Clause suggests that this has been accepted.
That being so, it is necessary to go into the details of the various legal incidents concerned. They are connected with the general nature of liability in damages, contributory negligence, Crown proceedings, contributions between tort-feasors, limitation—or what is known in Scotland as "time bar"—and the Fatal Accidents Acts. I am not competent to 908 put forward the various legal and technical arguments on this matter about the general nature of liability, damages, and so on. I think I must leave this to be dealt with by the Solicitor-General.
The matter has been examined, and it appears that the hon. and learned Member for Southport accepts that there must be a "deeming" provision. The word "deemed" is used in the new Clause. Thus, the only question is which is the better way to do this—the hon. and learned Gentleman's method of leaving Clause 1 in its amended form and tacking on a new Clause, or my method of restoring the Bill to its original form, with the addition of the word "also". Having looked carefully and sympathetically at the new Clause, I have come to the conclusion that it is not acceptable.
If the Clause were accepted, the basic lay-out of the Bill would be as follows. Clause 1 would provide that where an employee was injured in certain circumstances, then, notwithstanding the fact that the employer was not negligent, he should be liable in damages to the employee. The Clause would then provide that this liability should "for all purposes" be treated as if it were a liability in negligence. In principle this is the same as saying in Clause 1, as my Amendment suggests, that the employee's injury shall be deemed to be attributable to the negligence of the employer, except—and I agree that to some extent this might be a matter of opinion—that that is clumsier and more confusing.
Moreover, the method suggested in the Clause involves unnecessary dangers. I appreciate that I am straying into the difficult area of liability and negligence. It mixes two concepts, the concept of liability in damages without more, and the concept of liability in negligence. This can only serve to create confusion and loopholes when the Bill has to be interpreted by the courts. The concept of "liability in damages" without more is probably not known to our law. It means little or nothing without the crutch sought to be provided by the Clause. I think it was recognised in Committee that something else needed to be done, and this has been done by the new Clause.
It is dangerous to try to specify, as the Clause does, the circumstances in 909 which the claim of the employee may ensure for the benefit of others. This may serve one day to cast doubt on the nature of the liability created by Clause 1. It may be dangerous to say that the employer shall be deemed to be liable in negligence for all purposes," and even I do not say that. Furthermore, the Clause does nothing to put right the uncertainties created by the present amended form of Clause 1, in particular the fallacy of purporting to create a liability. The purpose of the Bill is to provide that if a third party is liable to the employee, then, and only then, will the employer be liable as a joint tortfeasor.
Finally—and I say this with great respect—the whole pattern proposed by the new Clause is a little illogical and confusing. If, as is now agreed, there must be a "deeming" provision—I think this is the crux of the argument in deeming someone to be something that, in fact, he is not, and everybody has recognised this—it is surely right to put it in the principal Clause and make it the basis of the employer's liability. That is what my Amendment does. It puts the Bill back into exactly the same form in which it was when it was introduced, with the exception, which I have already mentioned, of the inclusion of the word "also". That Amendment was not moved in Committee. It fell because a previous Amendment had been accepted.
The purpose of adding the word "also" is to make clear beyond doubt that the employer's liability under the Bill is not exclusive. He shares liability only with the third party who was actually at fault. It is essential to make this point clear for the protection of the employer. The new Clause does not make it as clear as my Amendment does. It is simple, neat and safe, and I go further and suggest that it is the only proper form.
There is no question of libelling employers by using this form of drafting. There is no question of saying that an employer was negligent when he was not. Of course, the Bill as such does not and cannot apply if an employer was negligent, for that situation would be covered in other ways. All that the Bill does—admittedly, the new Clause tries to do this, too—is to say that in 910 certain circumstances an employer shall be treated as a tortfeasor in the tort of negligence. It is now pretty well agreed on all sides that this has got to be done. With all due modesty, because the expert advice has really come from my hon. and learned Friend the Solicitor-General and from some of my other hon. Friends, I suggest that this is the right way of doing it and that the new Clause is the wrong way.
We have had a fairly long discussion on this point. I am of the opinion that no employer need worry about this. I think it would be true to say that if an accident claim were brought against a big employer, such as I.C.I. or Ford, even though it involved a high level of legal argument, the impact of the reputation of the firm would be nil. It would be a minor legal case. Therefore, damage, assumed or real, to anybody's personal reputation would not arise. I am not sure what the position might be with the smaller employer, but I should think that in the minds of laymen like myself, because Press reports do not cover these cases very fully—one would need to consult something like a legal journal—it would loosely be dismissed as another accident case.
I do not think this is a serious reflection on the personal character and integrity of an employer, small or large, although I can appreciate the indignation felt by some progressive employer who would say "Yes, I agree with the general principle of the Bill, but I do not see why I should be called something that I am not." This is like rather like the prices and incomes legislation; it has not been properly understood.
§ Mr. Brown
No, I beg to disagree, despite what is happening with the electricians in Scotland.
I do not think that anybody having had an explanation of what is meant by this Amendment would quarrel with the interpretation which we all know to be the right one of the words "deemed negligence ". Therefore, I hope the House will reject the new Clause and will approve my Amendment when we reach it.
§ Sir Edward Brown (Bath)
No one doubts the sincerity of the hon. Member 911 for Glasgow, Provan (Mr. Hugh D. Brown). All we really want to do is to get a good Bill. We succeeded in Committee upstairs in carrying an Amendment which we thought would put the Bill right, but now we find that the hon. Member for Provan has an Amendment which seeks to restore the Bill to its original form. This, I think, is the only quarrel between the two sides of the House.
I ought to reiterate—I said this very strongly in Committee—that we cannot have a situation in this country in which the basic principle of English law, whether criminal or civil, is breached. It is no use hon. Members opposite smiling; this is a serious point. The basis of English law is that a man is innocent until he has been proved guilty.
§ Mr. Gordon Oakes (Bolton, West)
The hon. Member and the hon. Member for Carlton (Mr. Holland) insist on using these words "innocent" and "guilty ". We are dealing with civil law. Does not the hon. Gentleman realise that if a driver employed by a haulage contractor is involved in an accident which is due to his negligence the employer is liable in civil law? He is not considered guilty, but he is liable for an act or omission of his servant during the course of his employment.
§ Sir E. Brown
I appreciate the point, but according to this Bill there is no question of any action before an employer is to be found guilty. He is guilty by this very Bill. He is tried and he is covered by the Bill by the words "deemed to be", whether or not he is negligent. It was to remove this awkwardness from the Bill that the Amendment was accepted in Committee upstairs.
We now find that we have another words in this Amendment, namely "also", It raises a number of questions in my mind. Suppose that an employee is wholly responsible for his own accident. We know that the employer cannot by any means be held responsible if it is wholly the employee's fault. The word "also" could join the employer in an action resulting from such an accident. The Amendment includes the words:…shall be deemed to be also…912 In Committee even the lawyers could not find agreement amongst themselves on this point. We are only laymen. We represent constituents who may well ask us to explain this particular passage. I shall be able to give the interpretation of my hon. Friends and the hon. Member for Provan will give his interpretation which he will have received from the Solicitor-General.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Will the hon. Gentleman explain how, if an employee is wholly responsible for his own accident, the event can be attributable wholly or in part to a third party? That is not a lawyer's point. It is common sense.
§ Sir E. Brown
But the words of the Amendment are that,the injury shall be deemed to be also attributable to negligence on the part of the employer "—and so on. It says nothing about third parties, merely that it shall be also attributable to negligence on the part of the employer. I recognise that the hon. Gentleman is a lawyer. I am a layman, and I have to represent my constituents. They will come to me and ask my opinion about it. Have I to go to my lawyer or to the Government lawyers for a correct interpretation, or must we wait until we have a case in court?
I accept that the new Clause does not exactly meet the situation, but my hon. Friend the Member for Carlton (Mr. Holland) offered to the Solicitor-General and the promoter of the Bill that, if they wished to look at the matter in the light of our general view on this side, following the Amendment in Committee, they could put it right in another place. That is the right spirit and intention. We do not oppose the Bill, but we want a good Bill.
After seeing the Amendment this morning, I am almost tempted to ask my hon. Friend to allow us to divide on the issue. We must have the point right. We must never have it put on the Statute Book that a man is guilty until he is so proved, but the Amendment would make him guilty, although innocent, and that is what we strongly oppose.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
The original words in the Bill were:the injury shall be deemed to be attributable to negligence on the part of the employer 913 (whether or not he is liable in respect of the injury apart from this subsection)…For those words there were substituted in Committee the words:then notwithstanding the fact that there was no negligence on the part of the employer and whether or not he is liable in respect of the said injury apart from this subsection the employer shall be liable in damages…and so on. The reason advanced for the deletion of the original words and for the substitution of those new words was that we should make the employer morally guilty of something of which he was not guilty. There was, in effect, no other objection. In order to cure what was regarded as a moral objection of that kind, cumbersome words were inserted which, so it was suggested, would put the matter correctly.
The first point to remember is that the original wordsdeemed to be attributable to negligenceclearly showed or implied that he was not guilty in any sense of blameworthiness but was for the purposes of the Clause deemed to be guilty. With respect to hon. Members opposite, it seems to me that they made a great song about a difficulty which did not exist. They are now trying to put words into the Clause which would make the thing more cumbersome, without adding anything of value and without assisting the matter at all.
Apart from that objection to the insertion of these words, there were other objections advanced, and the very fact of the new Clause now before us recognises the force of the objections which we advanced in Committee.
§ Mr. Holland
I made no secret of that when I spoke. I said that by the new Clause we recognised the real objections which had been raised in Committee.
§ 11.45 a.m.
§ Mr. Weitzman
I am obliged. Nevertheless, the hon. Gentleman will recall that there was a great battle in Committee about the insertion of these words. The learned Solicitor-General pointed out the objections. I pointed out the objections. Hon. Members opposite made light of those objections and said that they were not real. That is how the matter went, as the hon. Gentleman will find if he re-reads the OFFICIAL REPORT of our proceedings.
914 For example, I drew attention to the words "contributory negligence" and the difficulty which would be created in that respect. More than that, the Solicitor-General put the other matters clearly to the Committee. He told us that the question had been carefully considered during the Christmas Recess, and he went on:The reason is that putting the cause of action formally in the category of negligence clearly gives the desired result, both for England and Scotland, in connection with many collateral matters—in connection with such matters as contribution, contributory negligence, limitation, right of surviving dependants to sue, the forms of existing statute law dealing with Crown proceedings and the Armed Forces, and legislation dealing with foreign torts and a large number of legal incidents which need to be attached to the employer's liability under the Bill. In these cases the use of the expression 'negligence' is a desirable and, in our assessment, a necessary treatment of the matter."—[OFFICIAL REPORT, Standing Committee C, 22nd January, 1969; c. 69.]That was cogent reasoning, advanced after the most careful consideration and supported by other hon. Members—I supported it strongly myself—against the inclusion of words such as those proposed. Now it is recognised that we were right in our objections, and in an effort to cure them a long new Clause is introduced. There is no need for that long Clause. There is no need for the words which were inserted in Committee. The original words in the Bill put the matter simply and correctly in law. In the circumstances, the new Clause should be rejected and, when we come to that stage, the original words should be restored.
§ Mr. Kenneth Lewis
I congratulate the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) on two counts, first, on the fact that we have reached this stage with the Bill, and second, on the speech which he made a few minutes ago. If the hon. Gentleman continues to make speeches of that kind, with an obvious ability to equal any of the lawyers, he will soon find himself on the Front Bench in one of the legal jobs.
We had an interesting Committee stage. As one who succeeded in inducing the hon. Member for Provan to accept an Amendment, I am somewhat reluctant now to dispute with him on this matter, but I feel that we are justified in disputing. He lost the point in Standing 915 Committee. Obviously, there was some negligence somewhere, since we won the Division. True, we had a long debate, but the hon. Gentleman and his hon. Friends lost, so we are perfectly justified in coming back now with a new Clause in an effort to repersuade them that the defeat which they suffered in Committee was a just defeat.
I agreed with a good deal that my hon. Friend the Member for Bath (Sir E. Brown) said, but I disagreed with him to some extent on one point, a point which in itself justifies our exercise in Committee. Putting in "also" does help, and this justifies the line we took, because if we had not won that Division the hon. Gentleman would not have needed to look at the matter again. Having done so, presumably after discussion with his hon. and learned Friend, he has decided that he could improve the Clause.
§ Mr. Hugh D. Brown
I do not want to spoil the hon. Gentleman's approach to the question, but I had an Amendment down to include "also" in Committee. It fell because of the carrying of the Amendment to which he has just referred.
§ Mr. Lewis
I had forgotten that, but as we won that Division the hon. Gentleman might not have had enough of his supporters there to vote for the Amendment he mentions. But I think that "also" is an improvement.
What worries most of us laymen is that we recognise that "negligence" is really a legal term, and both sides have been arguing that the employers should not be charged with negligence. The other side has said all the time that they are not really charged with negligence, and that it is a necessary term. However, it is a pity we could not get another. The courts are not permitted to look at anything we say here, even when it is said by Front Bench spokesmen, whether on the Floor of the House or in Committee during the passage of a Bill, or in comment afterwards.
§ Mr. Lewis
The hon. and learned Gentleman is entirely right. I can think of numbers of things said by Ministers about Bills which would affect them 916 if they were taken seriously. The only way to change the law is to bring in another Bill or amend the existing Act.
As the Bill stands, employers are at a disadvantage in the public relations sense. They will get the odium of publicity in the Press which says that they have been negligent, when they might not have been, or when the negligence is what I term stand-off negligence. By that I mean that it is not something they have done but something done by somebody else with whom they have been in association, or even by somebody else further away—somebody who has been associated with an associate of theirs. The liability can bounce back on the employer from a considerable distance.
This is right, because both sides want to help the employee. That is why we too want the Bill. If we took the line that the buck stops with the employer and does not go on to those with whom he is associated we would not help the employee. We want the employee to get the full compensation that may be due to him as a result of something that has happened, which may have been affected by the employer or someone connected with him.
The unfortunate thing is that the word "negligence", without any explanation, can lead to the employer's suffering in his own locality—and even nationally, if he is a big employer—because the Press does not read our debates but will simply look at the Bill and give him an unfortunate headline. I think that I said this in Committee, and I do not want to over-elaborate the point, but this could also be to the disadvantage of the employee, because the employer might therefore decided to fight the case when he might otherwise have settled. He might think, "If I am to be charged with negligence perhaps it will be better to go to court and make a song and dance about it in order to explain myself." There might be expensive and lengthy proceedings, which would not be to the advantage of the employee. They could be costly to him or to the trade union or whoever is supporting him.
If the hon. Gentleman is not prepared to accept our new Clause or another new Clause it is inevitable that the Bill will go through as he wishes, because we do not oppose it. But it is a pity that the 917 lawyers cannot find some means by which the word "negligence" does not bite home quite so much. I think that it does bite home, and it has an unfortunate effect on someone who may be a perfectly good employer, wishing to do the best he can for his employees.
Having said that, I nevertheless hope that the Bill will go through and will have all the advantages that the hon. Gentleman wants it to have.
§ Mr. Archer
I should like to take issue with the hon. Member for Rutland and Stamford (Mr. Kenneth Lewis) on a remark that he made in parenthesis. I am not sure that I approve of the rule that the courts are obliged to shut their eyes to everything said in the House. I can think of a number of legal judgments which might have been illuminated and graced by the sturdy common sense of the hon. Gentleman. There may be occasions when the court would be a little puzzled by the proceedings of the House, and there are certainly occasions when the general public is puzzled.
§ Mr. Archer
I am obliged for your guidance. Mr. Speaker. I was hoping to come very quickly to the argument with which we are concerned. But, if I may say so, there must be occasions when the public is puzzled by the proceedings of the House, and I was about to venture to suggest that this must be one of them. The whole debate has arisen from the fact that hon. Members opposite introduced in Committee an Amendment the case for which I understood to be that it would not make a scrap of difference to the effect of the Bill. It cannot be often that we find ourselves in the rather curious situation where the strong point of the supporters of an Amendment is that it will not make any difference to the Bill.
§ Mr. Holland
It would not make any difference to the general purpose of the Bill. That is vastly different from saying that it would not make any difference to the Bill. It changed the objectionable principle in the Bill without making any difference to its general purpose and aim.
§ Mr. Archer
I am obliged to the hon. Gentleman, who has expressed the case fairly, as usual. I have not overlooked the argument advanced. The point made was that the Amendment would not affect the legal effect of the Bill, that though it might make a difference to the Bill's reception in certain quarters, the Bill would emerge precisely the same. Then it was pointed out by some of my hon. Friends that it might indeed make a difference to the effect of the Bill. So now we have from the hon. Member for Carlton (Mr. Holland) a further Amendment to ensure that the Bill shall have precisely the same effect as it would have had if his original Amendment had never been made.
§ Mr. Archer
The hon. Gentleman shakes his head, but I understand that that is precisely what he said when he moved it.
§ Mr. Holland
I am sorry to keep interrupting the hon. Gentleman, but I want to keep the record straight. I thought that I had made it clear that we introduced the new Clause to meet some of the objections of hon. Members opposite to the new wording of the Clause after it had been amended by us in Committee, but not to change it back to the original form.
§ Mr. Archer
Indeed. But the objections were precisely that the Amendment might affect the sense of the Bill. We all agreed that we wanted to have the effect of the Bill as it was originally introduced by my hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown). Then hon. Members opposite introduced an Amendment in Committee for the reasons which the hon. Gentleman has very fairly put forward, but with the very clear reservation that it would not affect the legal effect of the Bill in any way. Then it was pointed out that it might do so, and therefore we have a further Amendment from him and his hon. Friends to restore to the Bill precisely the same legal effect as it would have had, to cut the same ice as it would have cut, had they never introduced their original Amendment. That will take a great deal of explaining to my constituents when they ask what we have been doing over the last few weeks.
919 12 noon.
As I see it, this is part of what is becoming a general trend—the trend that it does not really matter what one does because what counts is how one labels it. What is more important than discussing which course we are going to take is finding a formula—a formula that will not upset anyone, that will keep everyone happy—and at the end of it all that line usually fails in any event and only succeeds in drawing attention to difficulties which would otherwise have virtually passed unnoticed.
When the original Amendment was introduced in Committee my reaction was, "If it does not do harm and makes the Opposition happy, let them have it." I approve of making people happy. If we could spend our time making the Opposition happy it would be time well spent. If the matter had been left like that it would have been all right, but it has become clear that there are arguments the other way. As has been said, the fact that the hon. Gentleman now, quite properly, moved his Amendment makes it clear that he accepts, as the hon. Member for Rutland and Stamford accepts, that the Amendment produced in Committee will have an effect on the legal application of the Bill, and that might be a serious matter.
Now we are trying to repair the damage by a somewhat cumbrous Amendment which may at the end of the day not effect its purpose. As the hon. Member for Carlton said lawyers do not descend from Mount Olympus carrying infallible tablets, and when we introduce an Amendment purely to make people a little happier and then introduce another to neutralise it, we shall almost inevitably find that at the end of the day we have overlooked something rather important. Already there was a danger of overlooking the effect—and this is the purpose of the new Clause—on the transmission of a cause of action on death and a number of other legal consequences. Is it worth the risk of overlooking something vital, of producing another heyday for lawyers? This is an open invitation to lawyers to argue about it at great length when we could have produced the same result with something clear in the first place.
920 Of course, we should look at the possibility of damage suggested by hon. Members opposite. Whatever may be the psychological consequences of using the word "deemed", everyone knows what it means. To say that one "deems" something to have happened means that one behaves as though something has happened when it did not really happen. I do not believe that an employer will toss and turn in bed at night worrying because of an injustice done to him when he has been deemed guilty of negligence. If he misunderstands the position, it can be explained by his solicitor. I do not believe that there will be anything in the local newspaper which will produce strikes and riots in the town because a local employer has been deemed guilty of negligence. This is a song and dance about nothing. It is an attempt to find a formula which is unnecessary in the first instance and it would introduce a complication which the House may well regret.
§ Sir Brandon Rhys Williams (Kensington, South)
The Committee stage of this Bill was quite an agreeable experience in the cordiality with which the objective of the Bill was greeted by every hon. Member serving on it. I have been delighted to have been associated in a small way with this short but useful Bill. I hope that it will complete its passage quickly and successfully. To me, it is a Bill about personnel management and conditions of employment rather than about definitions of liability and the purely legal aspects of the circumstances which arise after an accident has taken place. It is admittedly only a small step forward towards better relations in places of work but it is a genuine step, and I, too, congratulate the promoter, particularly on the agreeable and competent manner with which he has handled the Bill from the beginning. There has been, however, some risk that the Bill might turn into a battleground for lawyers and, indeed, even today possibly there have been some clouds over our discussion because of the difficulty of defining legal terms and foreseeing the eventualities which might arise in purely legal situations.
I am always rather suspicious of lawyers when they attempt to take over from their clients the management of what is going on and make their decisions 921 for them. I feel that the clients of the lawyers in this case are the personnel managers, the people who want to see better relations. They want to see Bills of this kind brought forward which will help to determine conditions of work and ensure that the rights of all parties are protected in a way which can be seen to be fair.
If we are able to produce Measures which determine conditions of work in such a way that all concerned can see their fairness and Tightness, we shall have done something extremely useful; but there is a danger with this Bill that we are going to leave something in which will be a cause of bad feeling in due course. I hope that we may still be able to work our way through, even at this late stage, to a way of removing this difficulty.
§ The Amendment would virtually restore the original phrases we objected to so strongly in Committee. I acknowledge that the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) has made one useful addition, in the word "also". which I accept is a concession although not large enough to take out the unhappy imputation that an innocent man, a man who is not guilty of negligence, has in fact been negligent. It is a matter of choice at this stage exactly how the point is dealt with, but since the objective of the Bill is to improve relations it will attain that objective more completely if a formula can be found, even at this late stage, and I hope that it will.
§ I think that it is up to the hon. and learned Solicitor-General, with his ingenuity and grasp of the law, to round off our discussion by producing the final answer. He is not a man who is in any way pigheaded or unhelpful. On the contrary, I am sure that we see him as a man magnanimous and all-seeing. I hope that he will prove his command of the felicitous use of language even at this stage by finding a formula which we can accept unanimously as meeting all the objections which have been raised on this question of liability, both by the lawyers and by the personnel managers.
§ Mr. Donald Dewar (Aberdeen, South)
I have a great deal of sympathy with the line taken by my hon. Friend the Member for Rowley Regis and Tipton (Mr. 922 Archer). I have listened with puzzlement throughout the Committee Stage and today to the gusto with which hon. Members have thrown themselves into this argument. I feel strongly that it is a storm in a teacup. We are arguing over a formula of words which is no more than a distinction without a difference.
I do not accept what the hon. Member for Rutland and Stamford (Mr. Kenneth Lewis) says about the possibility of damaging headlines, for I do not think that there will be such headlines, or if there are in a local paper they would be based on an award of damages, certainly not on the legal niceties of wording which appears in the Bill.
It does not matter what we put in the Bill; if A.B. and Company Limited is reported in the local Press as having been "done" for £5,000 as a result of an accident to an employee—it may have been deemed to have been negligent and it may not have been deemed to have been negligent and all sorts of circumlocutions may be invented in the House of Commons, but if it is thought to be a moral sin, it will be held by the public so to be because of what has happened in the court and not because of what is propounded in the Statute Book.
§ Mr. Kenneth Lewis
If the word "negligence" were not in the Bill but an action were still possible, damages would be given on the basis that they arose out of an accident and the word "negligence" would not then be used. If—and this is our case—there is an award of damages which rests on the word "negligence ", it is a good deal worse. I ask the hon. Member to consider the situation with road accidents when——
§ Mr. Dewar
I appreciate what the hon. Member is saying, but I think that he is getting into further difficulties and into waters which he would not wish to enter. If we try to abolish the word "negligence" and say that damages should arise out of an accident, I immediately become enthusiastic, but the Bill does not try, and it would be hotly 923 contested if it did, to abolish the whole concept of negligence as a basis for damages. If it is said that when an employee is injured in the course of his accident, when there has been a genuine, bona fide, accident, he should be entitled to compensation on a generous scale through some insurance scheme, that may be a first class idea, but it is a different kind of argument. While our law stands firmly on the concept, however arbitrary and however artificial, of negligence, it is difficult to do without the word "negligence ". It has to be the basis of damages, at least in the context of the narrow reform proposed by the Bill.
Although I feel that it does not matter in terms of substance, I accept that the hon. Member for Carlton (Mr. Holland) has honestly and rightly said that in his view, which is obviously a view widely shared on his side of the House, there is a matter of moral substance, an important moral distinction, which has to be dealt with.
The hon. Member for Bath (Sir E. Brown) brought in the principle of a man continuing to be innocent until found guilty, and the hon. Member for Kensington, South (Sir B. Rhys Williams) walked a somewhat similar path. This seems to be an utter misconception. There is a real and important distinction between the civil and the criminal law. The principle that a man is innocent until proven guilty is obviously relevant only to criminal matters, and even then it is a somewhat similar path. This seems of an essay in optimism, because the very fact that someone has been arrested is regarded by the public as a justifiable ground for thinking that he has done it. I am not sure, therefore, that it has a great deal of validity in terms of public opinion and moral judgments even in criminal law.
But it is certainly utterly irrelevant in civil law. Presumably, what the hon. Member for Bath was saying, and his view was shared by others, was that, if in some sort of way when an employer is deemed under the Bill to have been negligent, it can be said that he has been deemed to be guilty of the offence of negligence, there is some element of moral turpitude in the finding in a civil 924 court of damages as a result of an industrial accident. If that is the case, if the danger for the potential "victims"—and I use the word in inverted commas—is that the employer may be found "guilty" under the Bill, we are in an unfortunate situation when we consider the whole range of industrial injuries and the civil actions resulting therefrom.
There must be an enormous number of people who, at least in the view of the hon. Member for Bath, have very guilty consciences because there is an enormous number of occasions when the law finds a firm negligent on a law entirely divorced from any concept of moral blame. Obviously, the most common principle on which a successful action has been founded in the courts is vicarious liability. If it is assumed that in some sort of way there is a moral turpitude arising from the finding of damages for vicarious liability, and the poor employer in this common situation is in no way responsible and indeed—he may be the very opposite of responsible for the unwise actions, as they may be, of another workman who happens to be in his employment—are we to say, by the analogy of the kind of argument used this morning, that he is guilty in some sort of way of a moral sin as distinct merely from being found liable to compensate his employee in accordance with a very artificial concept, justified on social grounds on which the courts have worked?
§ 12.15 p.m.
§ Mr. Holland
Would not the hon. Gentleman agree that there is more justification for saying that the employer should be liable for the acts of his servants or employees than for the act of someone over whom he has no control whatever, and that it is the point of vicarious liability that the employer is responsible for someone over whom he exercises control, whereas the Bill is concerned with someone over whom he exercises no control as the supplier of the material?
§ Mr. Dewar
There is some justice in what the hon. Gentleman says. He puts forward the principle on which vicarious liability is founded. But this might get us into some interesting Third Reading arguments about the whole scope of the Bill which would now be out of order. 925 In making a point about moral guilt in terms of the general public, whether an employer should be found guilty or should be deemed to be guilty in some sense, my point holds. We have divorced the law from the concept of moral guilt and it is unfortunate to try to reintroduce it in this way. An obvious example is absolute liability under the Factory Acts. No one would pretend that in those circumstances there is a moral guilt, although there may be a perfectly successful ground for an action in which an employer is found negligent and, therefore, on the argument which has been used, guilty.
I do not think that this is a very difficult issue. If, in the context of this narrow Measure, we start to worry about innocence and guilt in the sense of moral turpitude and sin, we shall put an enormous number of employers in an impossible situation and by finding them "guilty" in civil actions which have nothing to do with the Bill we are discussing. Considering it in this way, it may be seen how unreasonable it is to worry about the reputation of an employer in this kind of situation. His reputation may suffer, but if it does it will suffer on the reported facts and not because of any kind of arbitrary definition of innocence, or guilt, or negligence, or the deeming of negligence.
The hon. Member for Rutland and Stamford says that negligence bites home, but I hold firmly to the view that this is only when the facts allow it to bite, and the vast majority of damages are regarded by the public in terms of compensation for an accident, in terms of a technical concept of negligence, and not in terms of opprobrium or moral blame, as some hon. Members seem to think.
My hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown) has shown a sturdy resistance to arguments on the niceties of legal phraseology and at the end of the day he has had a notable victory. In the new Clause the use of the word "deemed" has crept back in and my hon. Friend is in a position to say, "I told you so ". He has shown a fair degree of flexibility by introducing the word "also", which, although it may not be strictly necessary, certainly in the mind of any one who may be interested stresses the crea- 926 tion of an alternative liability and not a substitute liability. By doing so, he has underlined that what we are doing is not imposing an absolute liability upon an employer, but offering an employee a choice between action against the employer and action against the third party. I should like to think that those who worry about the kind of issue which has been raised by hon. Members opposite will regard this as at least a considerable concession and a considerable consolation. The words in the Bill are clumsy and unnecessary, but with the new Clause added as well the point is underlined and emphasised. It is unlikely that the constituents of the hon. Member for Bath will ask him for detailed explanations of the Bill. If they do, I hope that he tells them to see a lawyer. Even a lawyer might be puzzled, I think, by the solution which the hon. Member for Carlton is asking us to endorse. To use a platitude with which none would disagree, a statute should be as clear and concise as possible, and these are advantages which my hon. Friend's proposals have. Intelligibility is a tremendous virtue. On these grounds alone and because I cannot see the moral justification for the distinction we have been invited to consider I hope that the proposals of the sponsors will be accepted.
§ The Solicitor-General (Sir Arthur Irvine)
The point under consideration has been discussed at great length and has given a valuable example of the usefulness which often attaches to cooperation between hon. Members in an endeavour to get over what may appear to some a technical difficulty. In the absence of the hon. and learned Member for Southport (Mr. Percival), I must say that I felt particularly obliged to him for his work. He has kept in touch with me about this matter in the most courteous and constructive way. So this problem has been carefully considered.
I do not want to make debating points, but it is fair to recognise that in the new Clause the need for a reference to the concept of deemed negligence is admitted. That is very revealing. The proposal is that an expression which now appears to be thought undesirable to have too prominently in the Bill should be degraded to another and less noticeable part of the Measure. It is as though a 927 man who was going to have a gold filling was embarrassed at the prospect and proposed to his practitioner that it would be better if the filling were placed four or five stages back inside his mouth. This concession is significant.
The hon. Member for Kensington, South (Sir B. Rhys Williams), in the most courteous terms, invited me, at the last moment as he put it, to put forward a form of words which would satisfy everybody. I can offer the House nothing better than the language of my hon. Friend's Amendment. The concept of deemed negligence carries no imputation of moral guilt. The point has been made clearly and forcefully by my hon. Friends. The very term "deemed to be negligent" carries the sense, as matter of interpretation of our language, that it is not negligent. The point cannot usefully be embroidered.
I listened with interest to the hon. Member for Rutland and Stamford (Mr. Kenneth Lewis), who said that he thought that there might be a danger of increased litigation because of the desire of employers to be free of any possible stigma, even on the basis of misunderstanding of negligence. That is a point to which I have referred. I can only say, after careful thought, that the hon. Gentleman's fears in that respect are not well founded. There is no doubt in my mind that the Amendment which was carried in Committee against the advice which I ventured to give to the Committee created an inescapable need for some change at this stage, and, I would say, for my hon. Friend's Amendment.
There are many defects in the Clause as amended by the Committee. There is, in particular, the meaningless character which attaches to the expression…without prejudice to the law relating to contributory negligence…".in the context of a Clause which speaks of the fact that there was no negligence. That is the kind of defect—more than an infelicity—which can do much harm in a statutory provision.
There also remains the point, to which I attach great importance, that, if the Bill were left as amended and not changed, as I hope it will be, the effect would be to have a liability for damages at large, undefined, open to the gravest objection, not liability in contract, not 928 a statutory duty, not deemed to be any particular kind of tort, but simply a liability. That is a concept which is not welcome to hon. Members and certainly not to lawyers on either side.
I therefore hope that the new Clause will be rejected. I had it in mind to put before the House some of the instances in our statute law which makes it desirable that the reference to negligence should go into the Bill so that ancillary and related matters in a host of other statutes may take effect in the way that we all want them to. In all the circumstances, my sense of the matter is to think that it is not appropriate at this stage to do that. I have the feeling—I hope that I am right—that it is generally accepted that the true position is that no advantage is being taken of any theoretical line of thinking.
I can give my assurance to the House that that is the statutory position and I would ask and hope that the new Clause will, therefore, be rejected.
§ Question put and negatived.