§ * THE SECRETARY OF STATE FOR THE COLONIES (The Marquess of RIPON)My Lords, I beg to move that the Commons Reasons for disagreeing with your Lordships' Amendments to the Bill be now considered.
§ THE DUKE OF DEVONSHIREMy Lords, before the Question is put I would ask whether it would not be a convenient procedure for the Government to make a statement as to the course they intend to pursue with regard to the Amendments on the Paper before they invite the House to consider a formal Motion with regard to the Commons Reasons? It seems to be desirable, if it is possible, to clear the main issue from many side issues which may be raised by the Amendments of which notice has been given. I think it would be convenient if the Government would now take the opportunity of stating what view they take of these Amendments, and whether they consider they remove any objections which they have hitherto felt in reference to the Contracting Out Clause.
§ * THE MARQUESS OF RIPONMy Lords, I am not quite sure that it would be in accordance with a regular course of proceeding to express an opinion on the Amendments before they are moved. 1626 But if it is the general desire of the House that 1 should state the view winch the Government take of these Amendments, I think I can put it in a very few words. Neither the Amendment of the Earl of Dudley nor the Amendments of the Earl of Camperdown, both of which have been put on the Paper, seems to be of a character to remove the objections of the Government to the alterations which were made in the Bill when it formerly left your Lordships' House. These Amendments do not touch the vital point of the question at all. They practically maintain— certainly Lord Dudley's Amendment maintains—the clause substantially in the form in which it was passed by this House, and are liable, as it seems to Her Majesty's Government, to all the objections which were urged against that clause at that time. I am quite ready to admit that Lord Camperdown's Amendment goes somewhat further in the right direction than that of Lord Dudley, yet it is not free from the same serious objections which have been entertained by the Government, and supported by the House of Commons, to the principle of the Amendment which was carried in your Lordships' House on the Motion of Lord Dudley. And, therefore, the Amendments cannot receive any sanction or acceptance from the Government here or elsewhere.
§ Motion agreed to.
§ THE MARQUESS OF RIPONI beg to move that your Lordships do not insist upon the first of these Amendments—that is to say, practically, Lord Dudley's new clause—and upon the consequential Amendment which follows.
§ Moved, not to insist on the Amendment in Clause 4, page 2, line 13, to which the Commons have disagreed.— (The Marquess of Ripon.)
§ THE MARQUESS OF SALISBURYI suppose we may take that as meaning Sic volo, sic jubeo, stat pro ratione voluntas. The noble Lord does not condescend to give us any reason for the Motion which he makes to the House. I do not know that it is our duty to answer arguments which have not been 1627 addressed to us. We are the advocates of the freedom of the individual and of the freedom of contract. We are the advocates of Societies which have been in operation for years, and which have given full satisfaction to those who form part of them, and who now repeatedly and with loud voices exclaim against the proposals to deprive them of exercising those benefits which they have hitherto, in their freedom as Englishmen, enjoyed. This proposal to put them under one uniform coercive rule, which will deprive them of the greater portion of the advantages which they have enjoyed, which will condemn them universally to litigation instead of to agreement, which will diminish their resources, which will diminish their support in case of accident, which will create a permanent cause of difference and quarrel between themselves and their employers, and which will benefit nobody except those, whoever they may be, who desire to discourage independent agreements between workmen and their employers —it seems to us that the proposal of measures of that kind is one that we can only steadily and permanently resist; and that the refusal of the Government even to give us reasons for the some what overbearing course they have pursued proves to us that they are not acting on their own instincts or in obedience to the motives which naturally guide them in dealing with the Members of both Houses of Parliament, but that they are the victims of a dire necessity and the slaves of a cruel organisation.
§ * LORD STANMOREsaid, it was not his intention to trouble the House with a speech upon the question. But there was one plain and practical suggestion which lie wished to make to Her Majesty's Government. It was this: that if the Government desired to obtain the support of those who were not disinclined to support them, who would be glad and wished to do so, but who were still guided and governed by principles long held and acted on, they must explain far more fully and plainly than they had yet attempted to do, the necessity for provisions which admittedly interfered with the unrestricted right of action and contract. In 1628 the days, now unfortunately remote, when both he and his noble Friend in charge of the Bill sat on the Liberal Benches of the House of Commons, it was an all but universally admitted Article of the Liberal Creed that any such interference with the freedom of contract and action, or any restrictions upon that liberty, were in themselves evils— evils which, no doubt, often had to lie endured in order to avoid greater evils, or in order to effect some manifest public good, but which were never held to be justified except for grave cause; the burden of proving which lay upon those who desired to impose the restriction. That doctrine might not be so fashionable, but it was not one whit less true now than it was then. By that standard he had tried the Government's proposals. He had read with care all that had passed elsewhere upon the subject; he had listened with attention to what had been said in their Lordships' House; and the result was this: With respect to the Bill itself, and its main principle of the abolition of the doctrine of common employment, a case had been shown for legislation and had been admitted by their Lordships in reading the Bill a second time without a dissentient voice. But no adequate reason appeared to have been given for the restriction of agreements which employers and employed alike might find it for their mutual benefit freely to enter into. Logically the Amendment of the Earl of Dudley was well grounded, and one which when made before the House he had felt compelled to vote for; nevertheless, did that stand alone, he was not sure, considering the large body of workmen who were opposed to the Amendment and the distinct opinion of the House of Commons, that he should have eared to insist absolutely on that Amendment. But no reason whatever had been shown for the abrogation of contracts which exist, which had been freely entered into, and of which both parties to them desired the maintenance. Therefore, if the choice were between the destruction of those contracts and the maintenance of the noble Earl's Amendment, ho should feel bound to support the latter. He could, however, assure his noble Friend in charge of the Bill—and he was expressing 1629 the sentiments of others as well as his own who had voted for the Amendment on the same grounds—any reasons which the Government might urge for the adoption of the proposed restriction would be listened to not only with respect and attention, but with a sincere desire to be convinced. But then these reasons must be arguments, and not mere easy, comfortable assumptions, such, for example, as the assumption that the London and North Western Company would not do that which they bad persistently, repeatedly, and distinctly stated they would do. That was not argument—it did not deserve the name. Still less was the term argument in support of the Government's proposals to be applied to the threats and menaces which in other places some of the subordinate Members of the Government, and, he was sorry to add, even some Members of the Cabinet, had thought it not inconsistent with good taste and propriety to indulge.
§ * LORD FARRERsaid, he would not make a speech on the generalities of the question with the arguments upon which their Lordships were by this time well acquainted, but he wished to point out what would be the probable disappointment of the supporters and advocates of the Bill if contracting out was entirely abolished. It had been assumed by Mr. John Burns, speaking in the other House, and the Lord Chancellor, in this House, among others, that if contracting out was never to be allowed the state of things would be this: that every workman who was injured by negligence on the part of his fellow-workmen would have a special right of action and a special claim against his employer, and that the employer would therefore have a very strong motive for preventing accidents arising from negligence. That bad been assumed, and had been made the strongest argument against contracting out. He thought that this would not be the condition of things at all. The result, on the contrary, would be to drive every employer into outside insurance, not such a form of domestic and internal insurance as they had in the case of the London 1630 and North Western Railway Company, an insurance between the parties themselves who were engaged in the undertaking, but an insurance effected with a company existing for the purpose of making profit by insurance, which would undertake to indemnify the employer against the claims of the employed under this Bill. There were now companies whose business it was to insure against the liabilities under the present Employers' Liability Act, and the policies issued by these companies, of which he had examined one, were very interesting documents. In that policy there were two separate undertakings, one or both of which might be entered into by the insured. The first was an undertaking to indemnify the employer against liabilities under the law of employers' liability; the other was an undertaking to pay to the workmen a certain sum for every accident whether arising from negligence or not. These two undertakings were covered by different premiums. A liberal employer entered into both; a niggardly employer would only enter into the one, ad would pay the smaller premium. The policy contained a stipulation to the effect that no workman should have the benefit of both insurances—if he took the benefit of one he must give up the other—and this suggested, if contracting out was prohibited, one mode in which the prohibition might be evaded. Another stipulation in the contract to which he wished to call special attention was to the effect that the conduct of the defence of any action brought by the workmen should rest not with the employer, but with the Insurance Company. The Insurance Company were to have the benefit of all the information which the employer could give, but they were to conduct the defence themselves. What would then be the position of the employers and workmen in a case of this kind? Under a contract of this kind the employer would have to pay a premium which would include not only the company's liability, but the profit of the Insurance Company, and, so far, it would be an additional burden upon the undertaking. That, however, was not the most important matter. There were two other points of much greater importance. In the first place, the moment the contract was entered into the employer would 1631 be relieved of all liability, and all motive for care which was supposed to arise from his liability for accident arising from negligence would be destroyed. The second point was that the workman, instead of bringing an action or making a claim against his employer, who would probably endeavour to meet the claim liberally and generously, would have to bring his action against an outside Insurance Company, whose only object was to make profit, and whose interest and duty to its shareholders would be to defend and oppose every claim to the utmost. If contracting out was prohibited altogether, the employers would be driven into this outside form of insurance. If, on the other hand, contracting out was allowed, with certain safeguards, they encouraged— he did not go further — the sort of domestic insurance which now existed in the case of the London and North Western Railway and other companies. Under domestic and internal insurance of this kind there would, in the first place, be no premium to pay; in the second place, the employer would still have the utmost possible motive for preventing accidents, because with every accident, whether arising from negligence or not, his subscriptions to the fund would be increased. In the next place, the workman would have to make his claim against the managers of the fund, persons who would be ready and willing to arrange with him if possible. Surely, if their Lordships were to pass a law on this subject, it ought to be a law which would encourage arrangements of the last-mentioned kind rather than insurance of the former kind which he had mentioned. He was quite aware that in any circumstances there would be a number of outside Insurance Companies. If this Bill came to anything the business of these Insurance Companies, he could state from considerable experience, would be increased. As their Lordships were aware, one of the functions of the Board of Trade had been to try to prevent accidents to ships, and they performed that function in different ways, partly by giving facilities for navigation, and partly by imposing liabilities or obligations on shipowners. These obligations and liabilities were of two kinds, founded on two distinct principles, not altogether consistent with 1632 each other. According to the one, there was minute supervision by a Government authority, telling the shipowners exactly what they ought and ought not to do. The other principle was to leave the shipowner to choose and take his own precautious, but to make him liable in damages for accidents occurring through any default on his part. The Board of Trade had, under the guidance of very able and efficient chiefs, who disliked the principle of minute supervision, endeavoured to act upon the second of these principles, and to enforce caution by making the shipowner liable in damages, but they had found themselves foiled by the fact that the shipowner at once proceeded to insure himself against liability. He remembered that Parliament once, under the guidance of no less an authority than Lord Cairns, when a new liability was introduced, passed a special Act to legalise insurance against it. Indeed, so strong was the feeling in favour of insurance that successive Governments had been totally unable to remove the terrible blot which existed in the law in the form of legal decisions under which shipowners might recover more than they had lost, and which consequently acted as a premium upon losses. That experience had convinced him that if a liability were imposed in this case it would be met by insurance. He would say again, if they were to have insurance let it be such as had hitherto existed between employers and employed, and not between employers and outside Insurance Companies.
§ THE EARL OF DUDLEYrose to move that their Lordships insist on their original Amendment and to move the insertion of the Amendment of which he had given notice.
§ * THE MARQUESS OF RIPONIf the noble Earl is going to move another Amendment, I am entitled to speak on the original Motion. Of course, I place myself entirely in the hands of the House. I do not wish in the least to stand in the way of my noble Friend; but as the noble Marquess opposite seemed to think I had taken a somewhat unusual course in making my Motion without any further expression of opinion than that 1633 which I gave to the noble Duke below me, I would only say that I think the noble Marquess will find I have acted in strict accordance with the general precedents of your Lordships' House in reference to such a Motion. I can assure the noble Marquess and the House that nothing can be further from my intention or inclination than to treat the House in the way he has described. I was a little amused by the remark of the noble Marquess sic volo, sic jubeo, because to tell us who sit on this side of the House that we have any power to treat the House in that manner is a little absurd, since we are an entirely powerless body in this House, and have consequently no temptation to treat the House in the way the noble Marquess has described. What I desire to say now can only be, in the main, a repetition of what I have already stated.
§ THE MARQUESS OF SALISBURYI rise to Order. May I ask in what capacity the noble Marquess is speaking? He seems to have shoved out my noble Friend behind me with great dexterity.
§ * THE MARQUESS OF RIPONI thought the noble Lord was going to move a separate Amendment distinct from the Motion which I made, and I wished to speak on my own Motion.
§ THE MARQUESS OF SALISBURYUpon that the only way of putting the Motion to this House is by moving an Amendment to the Motion of the noble Lord. I should myself have said that our business is first to deal with the Motion of the noble Lord—Aye or No—Content or Not Content—and that then would be the time for dealing with Amendments.
§ * THE MARQUESS OF RIPONThat was the supposition on which I was addressing the House; but if that be not in accordance with the Rules of the House, of course I shall be content that my noble Friend should move his Amendment now. Certainly I was under the impression that the proper course would have been to dispose of my Motion first.
§ THE MARQUESS OF SALISBURYYes; I think that is the right course.
§ * THE MARQUESS OF RIPONWhat I was about to say when the noble Marquess interrupted me was that I have little or nothing to add to what I said on a previous occasion with regard to the Motion of my noble Friend opposite. In the first place, the Amendment impairs the effect of the clause in the security it would give to workmen by admitting the principle of contracting out; and, in the second place, I object to the wording of the Amendment. I do not think my noble Friend's Amendment will be in any way improved by the alterations he proposes to make in it, but upon that point I may have a few words to say at a future period. My noble Friend Lord Stanmore seemed to think that the provisions of the Bill in preventing contracting out were without precedent, and he referred to that rather distant period when we sat together in the House of Commons. No doubt at that period such enactments were not common; but since that day they have become very much more common, and enactments preventing contracting out are to be found in a considerable number of Acts of Parliament.
§ THE EARL OF WEMYSSThe more the better.
§ * THE MARQUESS OF RIPONMy noble Friend Lord Wemyss is the one consistent man in the House. I have the highest respect for my noble Friend be cause he is thoroughly consistent; but here are noble Lords, who admit the principle of prohibiting contracting out in this very Bill, and yet endeavour to catch the vote of my noble Friend Lord Stanmore, who is an opponent of that principle altogether. It is said that it is too late to raise this question now, but I do not agree. I think experience has shown that as regards a variety of matters it is desirable to adopt this principle of preventing men contracting themselves out of Acts of Parliament. At all events, Parliament has adopted the principle. It is prohibited in all cases where these Insurance Companies do not 1635 exist, and therefore the general argument against prohibiting contracting out does not appear to me to have any application to this measure. The only real argument against the Bill has been brought forward by the noble Marquess with his usual terseness and force this afternoon. The noble Marquess argued that the effect would be to prevent the existence or extension of these Societies, and my noble Friend Lord Stanmore also used language of that kind. Upon that point I join issue. In the first place, there is no desire on the part of the Government—as I said at an earlier stage of this Bill—there is no intention on their part, there is no provision in the Bill which will in any way prevent the formation and continuance of these Insurance Companies. There are two kinds of such institutions. There are great institutions, such as those of the London and North Western Company and the London, Brighton, and South Coast Company. There is another class, a smaller class—small Insurance Institutions got up between employers and employed. With regard to the latter class, I do not think that they would be a very valuable or satisfactory form of insurance, or that they deserve the consideration which I entirely agree ought to be given to the larger Insurance Institutions of which I have spoken. In fact, the question narrows itself down in practice and reality to these larger insurance funds. Now, we are told that if this Bill passes the larger insurance funds will not be maintained. My noble Friend Lord Stanmore said it was not a sufficient answer to him, or to anyone else who took that objection, that one did not believe that (for instance) the London and North Western Railway Company would not continue their subscription to the insurance fund if this Bill were passed in the shape in which it came from the House of Commons. That is entirely a matter of individual opinion formed on the probabilities of the case. I quite admit that the Directors of the London and North Western Company have made declarations from which it would perhaps be difficult for them to withdraw, although I feel great confidence that men of their character, occupying a public position, would not hesitate to withdraw them if they saw that it was for 1636 the public interest that they should do so, but since we last discussed the measure in this House we have had some evidence upon this point. The Chairman of the London, Brighton, and South Coast Railway recently declared that he should he averse to making any change in their insurance scheme, even if the clause objected to remained in the Bill. The insurance fund of that company seems to be a very important one, and I will give your Lordships a description which is not my own, of that fund, given in another place, given by an hon. Gentleman who moved an Amendment which was rejected by a small majority—
The London, Brighton, and South Coast have even a better scheme "—this was made as a comparison with the London and North Western scheme—They have a fixed quota as the contribution of the company; the men pay a certain sum as fixed, and the company pledges the whole of its revenue to make up any deficiency which may arise. As a matter of fact, the Railway Company has, on an average, for several years contributed 62 per cent, of the funds of the Society, and the men have contributed 38 per cent., the whole revenue of the company being placed at the back of the Society to guarantee its liabilities.Now, what is the view of the Directors of the London, Brighton, and South Coast, themselves on the subject? I observed the other day that the Chairman of the company, Mr. Samuel Laing, at their annual meeting made use of the following expressions:—The Employers' Liability Act has attracted a good deal of public attention, but this also-affected their company slightly. He would certainly be averse to making any immediate change in their insurance scheme, even if they had to strike out the Compulsory Clause with regard to contracting out of the Act.That does not look as if the London, Brighton, and South Coast Company were going to fight this matter to the end, or as if they were going, if this Bill passes, to give up their fund. On the contrary, the natural interpretation to be put on the words of Mr. Laing is that the company would do nothing of the kind. That is my answer to Lord Stanmore on this point. I can only repeat what I said on an earlier stage of this Bill—that in the opinion of the Government these funds in the main will 1637 continue after this Bill has passed, and that the objection so strongly raised by those opposed to the Bill will not be justified by the event. Therefore, as the proposal for contracting out is bitterly opposed by the vast majority of the working classes who are interested in this question, and as the opinion expressed on the other side is based on au erroneous supposition, I hope your Lordships will not insist on the Amendment you have made.
THE CHAIRMAN Of COMMITTEES (The Earl of MORLEY)pointed out that the Question before the House was whether it should insist upon its Amendments. If the House determined that it would insist upon its Amendments, he did not see that it would be possible hereafter to amend the Amendments. The proper Motion would be that the House would insist upon its Amendments with further amendment.
§ THE MARQUESS OF SALISBURYWith great reluctance I venture to traverse the assumption of the noble Earl on the Woolsack. If we negative the Motion of the noble Marquess, that does not make us insist upon the Amendment. There is another step to be taken. We should have taken only a contradictory step; and there remains the positive step to be taken. As far as my recollection goes, that has always been the practice in this House. The proposal of the noble Earl would be inconvenient, because it would necessarily limit the amendment of Amendments to the particular Peers who had moved the Amendments, while other Peers might wish to move Amendments. If there are several Peers who wish to move Amendments I do not see where their opportunity will come in. As far as I am concerned, I place myself in the hands of the noble Marquess opposite, and I shall not object to any form of order he prefers.
§ THE DUKE OF DEVONSHIREthought that the convenient course would be to amend the Amendments before proceeding to decide whether they would insist upon the Amendments or not. 1638 From a practical point of view, that procedure would be more convenient, as the votes of many noble Lords —some of them on that side of the House—would depend a good deal upon whether certain Amendments of the Amendments were or were not adopted. The reason given by the House of Commons for disagreeing seemed to point to the conclusion that if an adequate substitute could be provided they would no longer insist upon their objection. It seemed desirable that their Lordships should have the opportunity of discussing, in the first instance, any Amendments which might be suggested.
§ * THE MARQUESS OF RIPONI understand my noble Friend on the Woolsack to say—and that is the opinion of other noble Lords—that the proper Question to he put is: "That the House do insist upon its Amendments." If that is so, and if that were carried, then I think noble Lords would be debarred from moving further Amendments. But I understood that the Question was to be put the other way round. My Motion was that the House do not insist upon its Amendment, and if the Question is put in that form, it seems to me that the noble Lord opposite would not be precluded from moving his Amendments. That is my opinion; but I do not, of course, wish to set up my opinion on the point.
§ THE EARL OF SELBORNEOne thing seems to be quite clear: we cannot vote that we do insist, and afterwards amend.
§ THE MARQUESS OF SALISBURYWe have no Speaker in this House, and we are, therefore, obliged to a great extent to follow the wishes of the Leader of the House unless some very good reason is shown to the contrary. For the moment the noble Marquess is the Leader of the House, and, therefore, I shall follow the course he suggests.
§ On Question? Their Lordships divided:—Contents 22; Not-Contents 125.
§ Resolved in the negative.
1639THE EARL OF CAMPERDOWNmoved an Amendment in lieu of the Amendment on Clause 7, disagreed to by the Commons. He explained that this was one of a series of Amendments which had been devised with the view of meeting objections of detail which had been taken in the Commons with regard to various points of the Bill. In the present Amendment at the end of Subsection 2, Clause 4, after the word "agreement," in line 20, he proposed to add words proving that any workman shall be free to release himself from any agreement for assurance with the employer on giving due notice. The object of that Amendment was to prevent the possibility of workmen now within one of the existing insurance funds being coerced hereafter in regard to the operation of that fund. For instance, to give as an illustration the case of the employés of the London and North Western Railway, it might be alleged, and it had been alleged elsewhere, that there would be a possibility of one-third of the workmen minus one being coerced by the vote of their co-employés. To meet such a case, and to preserve liberty in the case of existing insurance funds, he proposed that any workman should be free to go to the office and declare, by due notice, that he would no longer work under the contract of insurance, but would come under the Act. That, shortly, was the meaning of the Amendment.
§
Moved, in Clause 7, Sub-section 2, to add the following words:—
("Provided that any workman shall be free to release himself from any such agreement by giving due notice.")—(The Earl of Camperdown.)
§ * THE MARQUESS OF RIPONI have only to say that I think this proposed modification of Lord Dudley's Amendment would not remove in any degree the grave objections which Her Majesty's Government take to that Amendment as a whole.
§ THE MARQUESS OF SALISBURYI think these words, so far as I can understand them, argue an excellent intention. 1640 At the same time, in order to take advantage of the provision, the workman would have to give up the secrecy of the ballot, which has hitherto protected him, and therefore I hardly think the Amendment would give the workman any real power which he does not otherwise possess. But personally I shall not oppose the proposal of the noble Lord.
§ THE EARL OF DENBIGHasked what was meant by the words "due notice"? because a good deal hung upon them. At the present moment, under the London and North Western Railway scheme, as had been truly said, a man when he entered the company's service contracted out of the Act and relieved the company from any liability in respect of accidents. Would it be open to the workman, after he had sustained an injury, to give notice that he wished to be free? If that were so, the whole arrangement would be nugatory.
§ * THE EARL OF SELBORNEapprehended that when an accident happened, before notice given, the workman would have to look to his insurance fund, and that it would be only for the future that he could bring himself under the Act.
§ * LORD PLAYFAIRMy Lords, I think before we pass this Amendment we should consider whether it would have any great effect. Supposing one-third of the workmen in a great company preferred to remain under the Bill they would probably not be coerced to come under the insurance scheme, because such companies like great railway undertakings are under the influence of public opinion; but even if that were so in the case of large companies, what would it be with regard to the smaller factories and workshops possessing insurance schemes of their own? Practically, the moment a workman gave notice of dissension he would ensure his dismissal. This would be giving workmen, no protection at all practically, and would have very little operation in the working of the Bill.
THE EARL OF CAMPERDOWN, in answer to the question addressed to him 1641 by Lord Denbigh, pointed out that the words "due notice" were generally understood; nevertheless, he was perfectly prepared to accept any better phrase that might be suggested for carrying out his intention. He certainly did not mean that a workman, after injury, should be enabled to calculate which of the two schemes would be most beneficial to him and exercise an option accordingly. He was not, of course, a lawyer, but hoped that a Court of Justice would not consider that to be "due notice."
§ THE DUKE OF DEVONSHIRE, in supporting the Amendment, said, the course taken by Her Majesty's Government was a very remarkable one. He contended that it met the objections taken by the Home Secretary in another place to Lord Dudley's proposal—namely, that it put it in the power of a certain proportion of the workmen to deprive their fellow-workmen of the benefits of the Act without providing them with adequate compensation. If adequate securities could be provided, the objection taken by the Commons to this Amendment would fall to the ground, as he pointed out; but the Government absolutely declined to express any opinion upon the matter, or to assist in improving the scheme as adopted by their Lordships on the former occasion. This particular Amendment was directed to the argument that two-thirds of a body of workmen would be able to bind the remaining third against their consent, and provided a very simple remedy by making it clear that the dissenting one-third would not be bound by their fellow-workmen, but would retain their liberty of action and would be entitled to all the benefits of the Act.
§ Amendment agreed to.
THE EARL OF CAMPERDOWNmoved—
(3.) Nor shall it apply to any such agreement made after the passing of this Act which shall have been approved as aforesaid, and in respect to which the Board of Trade shall have certified—(i.) That it provides reasonable compensation in all cases of injury from whatever cause incurred in the course of employment, such compensation to be, in case of death, not less than the amount of two years' wages.1642 He said, it had been stated in the House of Commons that under the London and North Western scheme of insurance a sum of not more than £100 was paid in case of death, whereas some of the men earned from £2 to £3 a week. The objection was accordingly taken that £100 would not be a reasonable amount of compensation, nor such as a jury would probably give. The question, therefore, for their Lordships was whether they should not say in the Act that in case of death the compensation should not be considered reasonable if it did not amount to two years' wages? He had quoted the case of the Loudon and North Western fund, which, after the ballot had taken place, would become a new insurance fund just as much as any of those under Section 3.
§ THE MARQUESS OF SALISBURYIs not that a new construction? I never heard that before. I do not know whether the noble and learned Lord is prepared to support it.
§ * THE EARL OF SELBORNEsaid, he thought his noble Friend would do well not to press this particular Amendment. In the first place, the argument used on this point in another place was, in his opinion, perfectly irrelevant to what their Lordships were now doing. It was stated that a man's representatives might before a jury in some cases get more than £100—that they might get two or three years' wages. It was not necessary to inquire whether that statement was correct, because the case was not one they were dealing with. Their Lordships were considering the question of mutual insurances effected for the benefit both of employer and employed, to cover not only cases where damages would be obtained under the Act of Parliament, but cases where no damages would be recoverable under the Act. There must, under these circumstances, be some give-and-take arrangement. It was impossible to lay down a general rule for all these cases founded on the amount of damages which in some cases a jury might give. It would be hardly reasonable to put such a matter into an Act of Parliament. It was a sort of average 1643 —a question of what people themselves were content with, a question of what they had agreed to, and (as to future contracts) whether the Board of Trade thought it reasonable in each particular case. It would be an arbitrary proceeding to lay down by Statute either a minimum or maximum, which should be the rule for all cases of death, from whatever causes, or under whatever circumstances arising.
§ THE EARL OF WEMYSSalso would advise his noble Friend not to press this Amendment. Having adopted the broad principle that these insurance funds should be allowed to continue in the present, and to be formed in the future, it would be much better to leave these matters to be arranged between employers and employed. The broad fact remained that now, under the Bill with Lord Dudley's Amendment, the employed were in a much better position than without that Amendment. That was Mr. M'Laren's opinion, as stated in the document which had been circulated among their Lordships.
§ * THE MARQUESS OF RIPONsaid, that there was no question here of leaving matters to be settled between employers and employed, because this Amendment dealt with the Board of Trade's determination as to what was reasonable compensation. They were casting upon the Board of Trade duties which it would be extremely difficult for that Department to fulfil. How was the Board of Trade to decide whether the compensation was reasonable or not? Though he did not believe these Amendments would remove the objections which Government felt to the clause, yet he thought the Amendment of his noble Friend would make the clause somewhat better. The great and broad objections, however, which had been urged by Mr. Asquith to the clause in another place were altogether thrown aside in their Lordships' House. Noble Lords who had framed Amendments had carefully examined the Home Secretary's speech, had seized on some of the criticisms which he made on the clause, and had endeavoured to meet those criticisms by their Amendments; but the substantial objections of 1644 the Government from the beginning to the proposals of noble Lords remained entirely unaffected by the small Amendments now submitted, and therefore they felt very little interest in Amendments of the kind.
§ THE MARQUESS OF SALISBURYjoined his noble and learned Friend (the Earl of Selborne) in urging the noble Earl opposite not to press the Amendment. It was impossible to lay down a cast-iron rule to apply in all these cases. He had known a general manager to receive £4,000 a year as salary. Under this clause as now proposed to be amended if that general manager incurred a fatal accident entirely by his own fault his representatives would have to receive £8,000. That would, he thought, be excessive compensation.
§ * LORD PLAYFAIRsaid, that if the Amendment were withdrawn, and they were thrown back on the original words of the clause, the Board of Trade, which he had the honour to represent in their Lordships' House, would have no instructions as to what was to be regarded as reasonable compensation. It was very undesirable to throw upon a Government Department the duty of saying what was reasonable compensation. They were putting on the Board of Trade duties which it could not discharge, and none had stated more frequently than the noble Marquess that it was intolerable for Parliament to throw upon a Department duties without clearly stating how they were to be carried out. The Amendment, if carried, would give the Board of Trade some indication of what the reasonable compensation was to be, and, therefore, the Government were willing to see it inserted.
§ THE EARL OF CRANBROOKsaid, the remarks of the noble Lord seemed to be a little off the point. What would come before the Board of Trade were certain agreements between employers and workmen. An agreement in these cases was only to be brought about by the consent of two-thirds of the employés. That being so, there ought 1645 to be no difficulty in the Board of Trade determining whether the agreement between the parties was reasonable or not. Those were just such agreements as had to be constantly dealt with in other cases. When agreements dealing with equities with respect to land, and in reference to classes of persons benefited, could be acted upon by the Court, surely agreements in these matters should not be difficult to follow.
§ * LORD STALBRIDGEsaid, if the persons employed were satisfied that would be a great guide to the Board of Trade as to what was reasonable. But on other points he would ask the noble Lord to withdraw his Amendment. Great difficulties would arise with regard to the two years' wages. No doubt a general manager at £4,000 a year could hardly be called a workman; but there would be other questions with which the actuaries would have to deal, and which would be difficult to reduce to an average. A still greater objection was that, whereas the employer's contribution was to be not less than one-third (in the case of the North Western Company it was a great deal more), supposing an accident happened to a man earning very high wages, the great weight of the premiums would fall on the workmen themselves, and a rate of premium so high might be entailed as to make the Insurance Society nearly bankrupt, and men might be prevented from joining in future. A high rate of premium would act as a great deterrent against men insuring, and would add to the uncertainty of the amount to be recovered.
§ THE DUKE OF DEVONSHIREsaid, that they had never in that House taken their stand upon any general abstract principle. What they had contended was that it would be a great injustice, not so much to the employer as to the workmen themselves, to do anything not necessarily to destroy, but even to discourage and render more unlikely the confirmation of agreements which were, in the opinion of the workmen, better for themselves than anything that could be 1646 provided by legislation. They had endeavoured by various provisions to secure that these voluntary arrangements should be, in fact, as favourable to the workmen or more favourable than anything they could got under the Bill. What their Lordships had proposed in that way might not have been in all respects the best fitted for the purpose they had in view, and the criticisms of the Home Secretary in another place were directed to matters which were in some respects capable of amendment. The Amendment was now under the consideration of the House. He thought their Lordships had some reason to complain of the Government, who altogether declined to give the House any assistance in securing that those voluntary arrangements should be as favourable to the workmen as the House desired to make them.
THE EARL OF CAMPERDOWNurged that the Home Secretary's speech contained nothing but objections in detail to this principle. Having read that speech from beginning to end, he said to himself, "Let us try to meet those objections" He did not wish it to be considered that their Lordships' House had omitted anything in favour of the workman, and he was anxious that they should do nothing to discourage those voluntary arrangements, which ought to be encouraged as much as possible. He thought that any objections on points of detail which might be raised against Lord Dudley's Amendment ought to be met. Having said that much, he proposed to ask their Lordships to allow his Amendment to be withdrawn.
§ Amendment (by leave of the House) withdrawn.
THE EARL OF CAMPERDOWNmoved another Amendment—
ii. That the compensation is paid from a fund to which the employer contributes not less than one-third.The reasons for altering the one-fourth contribution would be perfectly obvious to their Lordships.
§
Amendment moved,
("ii. That the compensation is paid from a fund to which the employer contributes not less than one-third.")—(The Earl of Camperdown.)
§ * THE MARQUESS OF RIPONsaid, he thought the Amendment was an improvement.
§ THE MARQUESS OF SALISBURYagreed that this would be an improvement in the Bill.
THE MARQUESS OF LOTHIANreminded the House that it was at his suggestion that the contribution was reduced to one-fourth, which had been adopted in 1893 between employers and employed, and he thought if one-third were adopted it might cause confusion.
§ THE EARL OF WEMYSSremarked that the same statement had been made by Lord Crawford with reference to the English collieries.
§ Amendment agreed to.
§ THE EARL OF DUDLEYproposed to move an Amendment in order to meet the objection pointed out by the Home Secretary in the House of Commons that bogus arrangements might be made. He ventured to say that their Lordships were as anxious as any Member of the House of Commons to prevent the establishment of bogus funds. When the Bill was in Committee Lord Crawford carried an Amendment to provide that no funds should be established unless they were certified as sound by an actuary appointed by the Treasury. It was pointed out by the Home Secretary that such a certificate would only guarantee the soundness of a fund at the time of investigation, and would provide no security for its continued solvency. That criticism, he thought, was on the whole a just one, but it was exaggerated. The difficulty might have been met by providing that the accounts of these funds should be submitted at certain periods to the actuary, who would thus have the opportunity of either renewing or withdrawing his certificate. He thought, however, that 1648 the main object would be attained by making the employer liable for any deficiency in the fund, and, if he refused that responsibility, by allowing the workmen to claim compensation under the Act regardless of any previous contract. He therefore moved to omit Lord Crawford's sub-section, and to insert the following Amendment:—
Provided that in case the insurance fund is insufficient to provide the agreed compensation, and the employer is unwilling to make up the deficiency, the agreement shall be considered void, and the workman shall have the same remedy that he would have, had if he had not entered into it.
THE EARL OF DUNRAVENasked what would become of the further Amendments if this Amendment were adopted?
THE EARL OF CAMPERDOWNsaid, his noble Friend's object would be much better effected if Sub-section 3 were left as it was, providing that an actuary should certify that the funds were duly proportioned to the contingent liabilities. He had himself proposed an Amendment to the effect that if the fund proved insufficient the workmen should be able to claim under the Act instead of under the agreement.
§ THE MARQUESS OF SALISBURYsaid, the point was to see that the workmen were not trusting to an illusory security. The only part of the Home Secretary's criticism with which he was disposed to agree was his objection to putting this duty on an actuary. He thought, therefore, it would be wiser to strike out those words, because he was not sure whether an actuary would have the materials at his disposal on which his judgment must be formed.
§ THE MARQUESS OF RIPONsaid, he would be sorry to prevent effect being given to the one remark of the Home Secretary with which the noble Marquess agreed. He thought this was a preferable proposal, though he was not quite certain that the Amendment as proposed was very satisfactorily worded, and considerable delay might arise before it could be shown that the employer was un- 1649 willing to make up the deficiency. In reply to Lord Dunraven's question, he would point out that the Amendment was not part of Sub-section 3 but followed it, and would not interfere in any way.
§ THE EARL OF DUDLEYsaid, it was in order to meet the views of the Home Secretary that he proposed to make this change. The Home Secretary's argument was that besides the Board of Trade the Treasury was also brought in. By getting rid of the Treasury he imagined he was pleasing the Home Secretary.
§ Amendment agreed to.
THE EARL OF CAMPERDOWNproposed to insert a proviso at the end of Sub-section 3, which applied solely to agreements made after the passing of the Act. In such arrangements in past times employers had occasionally made it a condition of employment that a workman should sign an engagement that he would belong to the insurance fund. This, he thought, would obviate any hardship to which the workman might be subjected in that respect.
§
Amendment moved,
("Provided always that the employer shall not make it a condition of engagement with the workman that he shall enter into such agreement.")
§ LORD LAMINGTONsupposed this would not touch upon the point raised by Lord Farrer—that although an employer could not make a man contract out of the Act, a workman having been injured, or wanting compensation, should, if he appealed to a Court of Law, thereby lose all right of claim upon the insurance fund. He did not know how far the words of the noble Earl would apply in such a case.
THE EARL OF CAMPERDOWNsaid, the proviso simply applied up to the time when a man was accepted as an employé —that his employer should not make it a condition that he should belong to the fund, and should leave him at liberty to go under the provisions of the Act if he desired.
§ * LORD PLAYFAIRsaid, that this was only a benevolent declaration; no penalty was attached to any breach of the provision, and that if the employer did not observe it nothing would happen.
§ THE EARL OF SELBORNEsaid, it was obvious that in such a case the workman would not be taken out of the operation of the Act.
§ Amendment agreed to.
§ THE EARL OF DUDLEYproposed an Amendment to meet those cases where, from constant change among the workmen in a particular trade, it was difficult to take a ballot. The noble Marquess below him had mentioned particularly, in this connection, the building trade. Of course, where such a difficulty arose the Board of Trade ought to have discretion to meet it to lay down such conditions as might seem advisable, and to withhold their sanction when such conditions had not been, or could not be, observed.
§
Amendment moved,
After Clause 3, to insert ("Provided that the Board of Trade shall not certify as aforesaid in any case where in their judgment the ordinary course of business or employment is such that by reason of frequent changes of workmen it is not possible to ascertain the free opinion of the workmen employed.")—(The Earl of Dudley.)
§ * LORD PLAYFAIRthought that the Amendment illustrated the difficulty of the whole clause. The Board of Trade was to take a vote among the workmen; but there was no register fixed; there were no instructions how the vote was to be taken, how long a workman was to be in employment before voting, and a number of points which it would be exceedingly difficult to decide were left undetermined. But as this Amendment was in some degree an assistance to the Board of Trade in one direction there would be no objection to it from the Government.
§ LORD MONK BRETTONmoved to insert in the proposed Amendment, after the words "is such that by reason," the words "of the limited number of workmen employed, or." He said, that the Amendment was to meet the objection 1651 which was taken by the Home Secretary in the House of Commons with regard to the case of the small shops whore coercion might be practised. It was admitted that in undertakings where large numbers of workmen were employed coercion was not to be apprehended, but it was thought that in the smaller workshops employers would know the views of each man in their employ, and the ballot, therefore, would afford no security. He hoped his noble Friend would see no objection to accepting this addition to his Amendment.
§
Amendment moved,
In line 3 of the proposed Amendment, to insert after the words ("is such that by reason") the words ("of the limited number of workmen employed, or.")—(The Lord Monk Bretton.)
§ THE MARQUESS OF SALISBURYsaid, that he could understand there might be a difficulty, where the workmen were constantly changing, in finding out their opinion, but it passed his understanding to know why there should be a difficulty arising from the small number of workmen employed. It was obviously easier to ascertain the opinion of one man than the opinions of two, and of two than of three. He quite understood the object of the noble Lord, and he sympathised with it to a great extent. But to put the Amendment in this form in the case of smaller shops would be a mistake, especially with a suggestion which might more aptly belong to the Sister Country than to this.
§ LORD MONK BRETTONsaid, that it was exactly because the opinion of a few workmen would be easily found out by the employer that he had proposed the Amendment.
§ THE EARL OF SELBORNEsaid, not opinion so much, as freedom in the formation of opinion, was the real subject of inquiry here. He thought the words might be usefully adopted.
THE EARL OF DUNRAVENthought that the case in which the number of workmen was so small as to make them liable to coercion was guarded against by Lord Camperdown's Amendment. Otherwise, of course, an employer might hire half a dozen men for a week in order to counteract the opinion of the other workmen.
§ * EARL FORTESCUEexpressed his surprise at the tone taken by noble Lords, as if these intelligent workmen were absolutely helpless and ignorant, unable to manage their business in any respect, and liable to unlimited control. He pointed out that workmen, according to recently-proposed legislation, were to be trusted to manage everybody's business but their own, and everybody's money but their own. Though it was intended by the Government they should pay no rates, they were to levy heavy charges upon those who did pay them. They were to be entrusted very freely with the spending of other people's money, and really, considering all that their Lordships had witnessed lately, the necessity for these precautions was an extraordinary view to take of the independence and intelligence of the great body of the wage-earners of the country.
§ * THE MARQUESS OF RIPONsaid, the noble Lord who had just spoken was hardly fair to the Mover of the Amendment. This Amendment, he understood, was intended to apply to very small shops. The workmen in those shops were often in a less prosperous position, and were less able to hold an independent position, than men in larger establishments; and, therefore, he thought the words might be introduced with advantage into the Amendment.
§ THE MARQUESS OF SALISBURYsuggested that the words "limited number" formed a very curious phrase; and that the word "small" might be substituted for "limited."
§ LORD MONK BRETTONwas willing to accept the suggestion.
§ Amendment (The Lord Monk Bretton), as altered, agreed to.
§ Amendment (The Earl of Dudley), as amended, agreed to.
§ Verbal Amendment.
§ THE EARL OF DUDLEYmoved that the House do insist upon its original Amendment with the Amendments as amended added. He regretted what the 1653 Marquess of Ripon had said as to the reception with which the Amendments of their Lordships were likely to meet in the other House, and hoped that the Government would see their way to come to an agreement upon this question. The reasons stated by the Commons showed that the majority in the other House did not object to the principle of contracting out; it was simply the wording of the original Amendment of which they disapproved, and, therefore, he hoped there need be no fear of the two Houses failing to arrive at a speedy settlement of the question, the issue having thus been narrowed to a great extent. The only question they were now considering was whether it was possible for employers to enter into arrangements with their men, which would not adequately give protection and compensation to their servants; but that danger had been obviated by the Amendments carried that day. He hoped, therefore, that a settlement might yet be arrived at which would enable a measure of considerable utility to pass unhampered by restrictions which would injuriously affect many thousands of working men in the future and disturb the existing relations between employers and employed.
§ Moved, to insist on the said Amendment as amended. —(The Earl of Dudley.)
§ LORD STALBRIDGEsaid, he could not but hope that, in view of the efforts made by their Lordships in maintaining the principle of freedom of contract, the Government would do their very best to meet their Lordships. The noble Marquess (the Marquess of Ripon) alluded to the London, Brighton, and South Coast Railway Company, and expressed a hope that the London and North-Western Company would follow their example. He was afraid that the noble Marquess had only seen a short and incomplete report of Mr. Laing's speech. What Mr. Laing said was that it must be borne in mind that not only did he not speak for any other Railway Company, but he did not even speak for his own Board, for he had not had any opportunity of consulting them upon that point. His (Lord Stalbridge's) information was that the Board was not of the same opinion as Mr. Laing, but, on 1654 the contrary, were unanimously against him. So far as the London and Northwestern Railway Company were concerned, he could only say that they would endeavour to maintain the best relations they possibly could, but, as he had said again and again, in the shape in which the contract at present existed between the Directors and the workmen it was impossible for them to continue in the same way as at present.
§ * LORD COTTESLOE, as a Director of the Brighton Railway, present at the meeting referred to, confirmed what Lord Stalbridge had said, and added that Mr. Laing very carefully guarded himself, and distinctly stated that ho had not consulted his colleagues on the Board, and did not commit them in any way in regard to the remarks which he made on the subject of contracting out. His a colleagues on that Board sincerely hoped that contracting out would be allowed, and they would view with great apprehension any attempt to put an end to the system. The men in the service of the company were also strongly in favour of contracting out, and were constantly urging upon him that they should be allowed to remain as they were. They had sent him many Petitions upon the subject, and had urged him to do all he could in their Lordships' House to secure for them Lord Dudley's Amendment, or something like it.
§ * THE MARQUESS OF RIPONexplained that he had quoted from The Times report as very full, and that he had accepted it as correct. He was not aware that Mr. Laing expressed only his own private opinion; but, still, it was the opinion of a man of great experience, and was well worth quoting. He would be deceiving their Lordships were he to say that, in his judgment, the Amendments now introduced into the clause formed any satisfactory solution of the question before the House.
§ Motion agreed to.
§ * THE MARQUESS OF RIPONMy Lords, I now rise to move that this House do not insist upon the only other Amendment which remains to be considered—namely, that relating to notice of action in the case of seamen. Upon that point, as upon the other, I have 1655 next to nothing to add to what I said on a former occasion. This Amendment is, in the judgment of Her Majesty's Government, entirely inconsistent with the very principles of the Bill, which, by abolishing the doctrine of common employment, puts persons employed upon the same footing as others in regard to accidents. A passenger in a vessel would have his claim under the Common Law. This Amendment makes a distinction between passengers and sailors, which distinction it is exactly the principle of this Bill to remove. It has been said that shipowners would have difficulty, in consequence of the conditions of life on board ship, in obtaining evidence when vessels came home. I venture to say that that objection applies with greater strength to the sailors than to the employers, and that their difficulty in securing evidence on their part, considering that crews are apt to disperse as soon as they arrive in port, would be more serious than any difficulty the employer would have to encounter, for employers might minimise any difficulty of that sort by giving instructions to the captains of their vessels to report accidents as they occur and the circumstances under which they happen.
§ Moved, not to insist on the Amendment relating to notices by seamen.—(The Marquess of Ripon.)
§ * THE EARL OF WEMYSShoped the House would insist upon the Amendment. He was authorised to speak on behalf of nine-tenths of the shipping of this country, the owners of which regarded the retention of this clause as of great importance. If it ceased to be in the Bill the shipowners would withdraw their subscriptions, and the Shipping Federation Benefit Fund would certainly be closed.
§ VISCOUNT CROSSsaid, he introduced this clause into the Bill when it was before their Lordships at the request of a vast number of the shipowners in London, Liverpool, and elsewhere. They felt that a great blow would be dealt at their interests, and at the interest of the Mercantile Marine altogether, by striking 1656 this clause out of the Bill. They felt, as many of their Lordships must feel, that when a ship arrived at a distant port the owners had no control over the persons engaged on the vessel, and that if a man met with an accident he might not bring forward his claim for months afterwards. Very often crews dispersed altogether on arrival at foreign ports, and unless some provision of this kind were put into the Bill there would be no protection to the owners, because it might be quite impossible, when the vessel came home, to obtain evidence to meet any charge of negligence on their part. He feared that the consequence of the rejection of this clause in the Bill might be in many cases to change the flag under which the Mercantile Marine now sailed. Shipowners felt they would be in great danger if such protection was withdrawn, but he was quite aware that the reception this clause met with in another place had made it impossible to hope for its acceptance. He, therefore, with the greatest reluctance, asked their Lordships not to insist upon this Amendment.
§ * THE EARL OF WEMYSSsaid, after the statement of his noble Friend, he would not press the matter further.
§ Motion agreed to.
§ A Committee appointed to prepare Reasons for the Lords insisting on certain of their Amendments: The Committee to meet on Thursday next, at Four o'clock.