House Of Commons
Friday, 26th February, 1937.
The House met at Eleven of the Clock, Mr. SPEAKER in the Chair.
Oral Answer To Question
(by Private Notice) asked the Secretary of State for Foreign Affairs whether he is aware that the crew of the British steamer "Lenaria" at Boston, Massachusetts, have refused to load a cargo of nitrates consigned to the Spanish insurgents and whether he will give instructions to the British Consul to support the crew in their action?
The answer to the first part of the question is Yes, Sir. I understand, however, that nitrate is not on the list of commodities prohibited by the. Non-Intervention Committee, and that the carriage of nitrate on British ships to Spain is not prohibited under the Merchant Shipping (Carriage to Spain) Act. There are, therefore, no grounds on which His Majesty's Government could intervene.
May I ask the Noble Lord whether in any event trading with insurgents who are rebelling against a constitutional Government is an act which should be countenanced by a friendly Power like ourselves?
That is a very much wider question. I must see it on the Paper.
Here we have British subjects exercising their right not to assist the enemies of a friendly Power, a Power which is in the League of Nations whom, therefore, we are bound to protect and assist against any aggression, and I am asking what in that case is the position of sailors who are asked to load supplies which are obviously war supplies?
I can only give the same answer. The right hon. Gentleman is now raising a much wider issue. If he wishes to raise that wider issue it cannot be done on a Private Notice question at very short notice. If he wishes to put it down, my right hon. Friend will no doubt be glad to give him an answer.
What action does the British Consul propose to take in the matter and what instructions has he got?
He will take no action in the matter. I have already explained that the carriage of nitrate on British ships to Spain is not prohibited under the Merchant Shipping Act.
Civil Estimates (Excesses), 1935
Copy presented,—of Statement of the Sums required to be voted in order to make good Excesses on certain Grants for Civil Departments for the year ended 31st March, 1936 [by Command]; Referred to the Committee of Supply, and to be printed.
Army (Supplementary Estimate, 1936)
Estimate presented,—of the further Sum required to be voted for the Army for the year ending 31st March, 1937 [by Command]; Referred to the Committee of Supply, and to be printed.
Army (Royal Ordnance Factories) (Supplementary Estimate, 1936)
Estimate presented,—of the further Sum required to be voted for the Army (Royal Ordnance Factories) for the year ending 31st March, 1937 [by Command]; Referred to the Committee of Supply, and to be printed.
Army (Royal Ordnance Factories)
Estimate presented,—of Charge for the financial year 1937 [by Command]; Referred to the Committee of Supply, and to be printed.
Orders Of The Day
Employers' Liability Bill
Order for Second Reading read.
I beg to move, "That the Bill be now read a Second time."This Bill seeks to amend the law respecting the liability of employers for injuries to workmen caused through the negligence of fellow-workmen. We are seeking to attach upon the employer or employers responsibility for injuries caused to workmen arising through negligence of other workmen. As the law stands at present, an employer is liable for wrongful or negligent acts committed by any of his employés affecting the general public. Where an injured person is not a member of the general public but a fellow-servant of the person whose negligence is deemed to have caused the accident, the employer is not held responsible for the accident. We have here an anomaly in the law which we seek to amend, the doctrine of common employment, regarding injuries inflicted upon a workman arising from negligence or otherwise by another workman. In 1837 the law first took that shape in a case in which the two men concerned were injured in the employment of their master or nearly so. Gradually since that time the defence of common employment to claims arising against employers had been expounded in a series of judicial decisions till it had come to be held that every man in the employment of a particular master was a fellow-workman of every other man in the same employment, no matter what their respective positions or their respective functions might be. The result of these decisions by the judges was that the law had been brought to this state, that a workman had no claim at all against his master for compensation unless he could prove negligence on the part of the master himself, or the officials of the works. I have heard it said when these matters have been discussed, "Why do you continue to argue this? What reason is there for wanting to go back to the 1880 Act of Parliament and the conditions operating in connection with the law as it then was"? I will give one of the essential reasons why we desire to make a change. In 1934 the average amount of compensation in case of death was £291, and in cases of disablement, including cases settled by payment of a lump sum, the average amount was £12 15s. In 1923 the average payment for disablement was £13 14s., so that an injured workman received 19s., or 6.94 per cent., less compensation, on the average, in 1934 than in 1923. While expenditure, house rent and everything else, have gone up since 1923, workmen's compensation has gone down by 6.94 per cent. That is a glaring condition of things. We are asked why we do not alter the Compensation Act and make it better for the workman. That has been the argument from the other side all the time. We cannot go back and accept the conditions that existed in past years, because the people cannot live. The Act that was passed in 1880 had a limited duration, and it was to expire in 1887 unless Parliament continued it. It is dead for the moment and, therefore, we seek to amend the law, as was intended at that time. May I quote what was said in 1880 by the Attorney-General in putting that Bill through? Hon. Members will find this in Hansard, dated 3rd June, 1880. When the Bill was before the House of Commons he said:
Concluding, the Attorney-General said:"Where personal injury was caused to a workman by reason of defective works, machinery, plant or stock connected with the business of his employer, the workman should have the same right of compensation and the same remedies against his employer as if he had not been a workman in the service of such employer."
That was supported in the House of Commons in 1880. But about that time Parliament often changed from Toryism to Liberalism, and that is the reason why the law which existed until 1887 was not further dealt with or notified when the Tories came in. We are still seeking to amend that law. I hope that this Bill will be given a Second Reading and be sent to Committee, so that we may endeavour to introduce a better position than that which obtains to-day. The time has arrived when the Attorney-General should make a comparison between what took place on the occasion when the Bill was introduced in this House in 1880 and the position to-day. I remember that Sir Walter Greaves-Lord, who is now one of His Majesty's judges in the High Court—I have read his statement from beginning to end—put up a very fine case in this House in respect of a similar Bill. That Bill was killed in Committee. One can understand that when, in Committee, you may have 18 or 20 Members from one side of the House and only 10 or 12 Members from the other side. When the Conservatives had a majority in Committee the odds were that, if they were opposed to a Bill, it would not go through. On the occasion when a similar Bill to this was discussed in this House statements were made from Members on the Conservative Benches as to what it would cost. No man, either in this House or outside, if this Bill were assented to, could tell what the cost would be, but I believe that it would not be as great as lion. Members opposite, have made out. There have been statements in this House that the cost would be anything up to a shilling a ton. The only guide to expenditure at the moment is in connection with workmen's compensation, which has frequently been dealt with here in discussions from time to time. I have the figures of what it has cost the Yorkshire Miners' Association to deal with compensation. I have not the membership of the Association for 1933, but the cost of compensation was £8,835; in 1934, the membership was 103,194, and the cost £9,368, and in 1935 the membership was 115,306, and the cost £8,753. That has been the expenditure of our Association in respect of law costs, doctors' fees, hearing fees for the attendance of doctors in court and local branch charges. As far as the position in Yorkshire is concerned—and it is a very big county—the membership of the Association has increased since I took out these figures some time ago and is now close upon 120,000. When one takes into consideration the engine-winders, the management of the colliery and the deputies' organisation, and the fact that the General Workers' Union has a certain number of members engaged on the surface at almost every colliery, it can be said that nearly 100 per cent. of the men working at the collieries are in the organisation, and the cost for compensation has been 2.33 pence per ton. The number of deaths as a result of injury at Yorkshire collieries in 1934 was 107, and in 1935, 171. The persons injured in 1934 numbered 426, and in 1935, 441. The numbers are gradually increasing and our expenses are increasing, and, at the same time, the use of machinery, which is largely the cause of the increased accidents in the collieries to-day, is increasing. Assume that a man earns £3 or £4 a week. He may happen to meet with an accident and be off work for a considerable time, or perhaps he may be injured so severely as not to be able to work any more. Instead of being paid 30s. a week, which is the maximum, he receives much less. Let me show how it works out, as this is one of our discontents and reasons why we are pressing for the passing of this Bill, as we have done in times gone by. Take a man, wife and three children. His rent will cost 12s. per week. It fluctuates; sometimes it may be below that figure and sometimes it may be above, but that is the average, inclusive of rates. He has to get a load of coal once in every four or five weeks. I do not want to exaggerate the case. He gets his coal at an average price of 4s. per ton; that is a concession made to people who work in a colliery. His light costs him at least 1s. 6d. per week. Therefore, you have to deduct 9s. from his 30s., which leaves him with 21s. to maintain his wife and three children. That is ridiculous. In all homes there are insurance policies to be paid and clothing and household necessities to be bought, and it is impossible for a man to keep his house going on that amount. Indeed, a man who is in receipt of compensation for injuries cannot meet these liabilities. If he is in work, he has a better chance of doing so, but he cannot meet them if he is in receipt of workmen's compensation. I say without hesitation that the House, even on this ground alone, ought to pass the Bill and make the position of such a man more tolerable. Let me tell hon. Members why we are pressing for the abolition of "common employment" in this Bill. When an injured workman indicates that he may never be able to work again, a representative of the insurance company visits him in his home, and in a very persuasive manner suggests that he should accept a lump sum, £50 or £100, according to the circumstances. There is destitution in the house, no money, and the man, therefore, considers his unfortunate position. He has £50 or £100 placed in front of him, and he and his wife think that with this money they can start a little business and so carry on the home. A good many among the mining community have taken that risk, but in 90 cases out of 100 the workman has been unfortunate and unable to carry on. Consequently, he loses all that he got from the insurance company, he becomes penniless and he finds his way to the public assistance committee and on to the ratepayers of the country. Let me make a comparison between a man injured in a colliery and an hon. Member of this House. If an hon. Member slips and breaks his leg in the House, or outside, his £400 a year continues. That is a sound principle, and I would ask hon. Members to say that such a sane principle should be extended to the working classes and that an injured workman shall receive full wages during the period of his disablement. By passing this Bill working people will be put on an equality with the general public under the law. I have taken out figures relating to Scotland, Northumberland, Durham, South Wales, Yorkshire, North Derbyshire, Warwickshire, Lancashire, Cheshire and North Staffordshire, and I find that the cost of workmen's compensation, as shown by the wages ascertainment for the principal districts, was in 1933, 3.58d. per ton; in 1934, 3.65d. per ton; and in 1935 4.13d. per ton. I have the actual amounts in money, but I do not want to waste the time of the House in quoting them. I have also the Board of Trade returns in the case of insurance companies, and, therefore, I am on safe ground in giving them—and I intend to give them. In 1934, employers' liability insurance in Great Britain and Northern Ireland, after making the necessary adjustments in connection with unexpired risks, was £4,807,645. Of this sum £3,065,348, or 63.76 per cent. was expended in payment of compensation, including legal and medical expenses incurred in connection with the settlement of claims. Of the balance, £1,695,661, or 35.27 per cent., was spent in payments for commission (9.36 per cent.) and in expenses of management (25.91 per cent.) leaving £46,636."The principle of the Bill was one to which the Government intended to adhere until it should be successfully embodied in legislation."
Is that simply the employers' liability side of the insurance companies, or does it cover their relief for fire and accident?
As I understand it, the employers have expenses in addition to conducting their business, and when all is added together you get over £11,000,000, the amount which was mentioned in a previous Debate. If the hon. and gallant Member wants to find it out he should write to the Board of Trade. These figures apply to all industries, not merely to shipping, factories, docks, mining and constructional works. The vast proportion of that money, however, is finding its way into certain channels. When the Employers' Liability Bill of 1934 was brought in Sir Walter Greaves-Lord said:
A statement like that made by an eminent man ought to be taken into consideration by this House. When you consider all the difficulties there are in connection with our compensation laws, and when you consider all the factors which are against the workman, the time has come when the House ought to do something one way or the other. I ask hon. Members to pass this Bill and so give us, in these cases, an opportunity of going into the common law court and being on an equal footing with the general public in this matter. If hon. Members opposite decline to do that, and if they are dissatisfied with the Workmen's Compensation Act, which is not giving fair play and justice to the workers, then it is up to the Attorney-General and the Government to bring forward an amending Bill. Notwithstanding the speeches they have made, hon. Members opposite have gone into the Division Lobby against this Bill when it has been brought forward in the past, and nothing has been done by the Government to amend the Workmen's Compensation Act. The time has now arrived when some action ought to be taken in order that the position may be improved. I have had a great deal of experience in the mining industry, and possibly I have had longer experience of that industry than most other men now taking part in public life. I entered a coal mine at the age of 11 years, and when the Education Act came into force in 1870 I had to go back to school for a period of six weeks. I worked in the colliery, then became a checkweighman and eventually went into the mines offices. For 35 years I have been on public authorities dealing with the sort of things we are discussing to-day, and I know the difficulties that exist with regard to compensation cases. There are very many snags in the Workmen's Compensation Act. There are, for instance, the medical referees. These people do not come from our class. I know their duty is to be impartial, and no doubt most of them are impartial to the best of their ability; but I am afraid—although I hope I am wrong—that there is a slight tendency towards class prejudice. I think the same may also apply in this House, although that ought never to be the case here. Again, I ask hon. Members to give this Bill a Second Reading, and if the Bill is not passed, I ask the Government to amend the Workmen's Compensation Act. If hon. Members opposite have meant what they have said in the past, let the Government introduce a Bill to amend that Act. If such a Bill were introduced, hon. Members opposite would find in the discussion that would take place that there are more snags in the present Act than they may realise at the present moment. Very often the workers are not given justice, because there exists the custom of representatives of the owners' side visiting the workpeople and persuading them to take lump sums. In many instances the Act has become a farce. I remember particularly three cases that happened 20 years ago, where men were visited by the representatives of the insurance company. In one case £, was offered, in the second case £100, and in the third case the sum was only a trifling one. If the man has only 30s. a week in wages and is involved in a serious accident which is likely to prevent him from working for a number of years, the insurance company often tries to pursuade him to accept, say £100 or £200 in full settlement. In the three cases to which I have referred, I took the matter up, and in a case where £50 was offered I got £200 for the man, and in a case where £100 was offered I got it increased to £250. The other man left the locality and I did not follow the case to the end, so that I do not know what happened. I appeal to the Attorney-General and hon. Members opposite to give the matter serious consideration before they speak to-day. Our minds are made up as were the minds of the Lancashire miners in 1881. I well remember those days. In 1881 the Employers' Liability Act came into operation, and the miners coupled with a demand for the carrying into operation of the Act a demand for a 10 per cent. increase in wages. The employers refused both those demands, and the men went on strike. I went to Lancashire very often, because my parents lived there, and I saw the military and the police brought out to keep order in the constituency of my hon. Friend the Member for Leigh (Mr. Tinker). One day the miners had arranged for a mass meeting and a procession to take place, but trouble broke out because someone had made a hole in the drummer's drum. It was on that occasion that I first came into contact with the late Mr. Stephen Walsh. The time has come when something should be done to help these unfortunate people who, throughout the country, suffer from the practice to which I have been referring, and who cannot live on the workmen's compensation which they receive. In my own borough some of the people who are affected by this matter have had to seek public assistance—people in receipt of workmen's compensation, who are getting the full amount which was awarded to them. They are not getting enough to keep their homes, and they are drawing from the ratepayers what they ought to be entitled to under the law. Once again I appeal to the Attorney-General on this occasion to make a change in the tenour of the arguments which were employed against a similar Bill on a previous occasion."It is a very gross injustice to a large number of people, and for the past 70 years considerable efforts have been made to mitigate that injustice, and set aside this principle engrafted upon our common law."—[OFFICIAL REPORT, 2nd February, 1934; col. 727, Vol.285.
I beg to second the Motion.After the appeal made by my hon. Friend, I am sure that the Attorney-General will not be long about rising to express his agreement with the Bill. Generally it is the duty of those in charge of a Bill to explain it on Second Reading, but in this case the Bill contains only two Clauses and is drawn so simply and clearly that it explains itself. Therefore, there is no necessity to go through the actual provisions of the Bill, but it is necessary to explain the reason why we want to amend the existing law in this respect. One thing has occurred lately which has made the position still more difficult than it previously was under the present law. Until recently we thought we knew where we were on this question of common employment, but in the last fortnight there has been a case at Liverpool Assizes in which a woman was awarded £1,560 damages and costs and where the defence was "common employment." Mr. Justice Hawke said:
In this case a 'bus driver had brought his vehicle to a standstill. Another 'bus driver in the same employment came along with his 'bus and crushed the first driver who died as a result of his injuries. The judge expressed the opinion that that was not enough to bring the case within the doctrine of common employment. He held that the two drivers were engaged in independent operations and a stay of execution was granted in view of the possibility of an appeal. If we were sure that the law was as laid down by the judge in that case, there would be no need to argue much about common employment this morning. If that is the law, then it would apply in the industry with which I am particularly concerned, and in most other industries, because in that sense the men are always employed in different operations and there would be no necessity for trying to amend the law in this respect. However, we have to deal with the position as it is and with the law as it has been interpreted up to now. Hon. Members know what the doctrine of common employment is. One wonders how it ever came to be on the Statute Book, and having got there, why it has been retained for so long. It came on in 1837, and there are people who say that it has become part of the Common Law—I think that was the expression used by the Attorney-General on a previous occasion—and the inference is that we ought not to change it."The doctrine of common employment, the chief point raised for the defence, was based on the assumption that the servant agreed with his master to accept the risks of his employment including risks due to the negligence of incompetence of his fellow-servants. In his opinion it was not enough to come within the doctrine that two men were serving one master or that they were doing work that was similar or even identical."
The hon. Member says that this law was put on the Statute Book in 1837, but that is not right, because it was not passed as an Act of Parliament. The first decision of the courts to this effect was in 1837.
As far as we are concerned, whether it is the result of a Statute or a judicial decision, the effect is exactly the same, and judge-made law is sometimes even worse than Statute Book law. But because it made its first appearance in 1837 some people seem to imagine that it ought never to be altered. Certain other laws were in force in 1837, and I do not know whether hon. Members would like to see them on the Statute Book to-day. Queen Victoria came to the Throne in that year, and my grandfather was alive then. Lads of four and five were working in the pits in 1837. Girls and women were employed then in fetching the coal from men who were working naked in the pits. Would hon. Members like to go back to those conditions, because of old custom and law? I think we have got a long way beyond that, and I suggest that the time has come to put aside this doctrine.We ask that this law be repealed because we desire that our men should be placed in the same category as any other people who meet with accidents. Why should they be treated differently because they happen to be employed along with others? We are told that when we enter into an employment we take the risk of common employment. If we do, we take all the other risks as well. Why then should we get any compensation at all? When this House passed the Act of 1880 and the Compensation Acts of 1897 and 1900 and the later consolidation Act, why did we not put in all the risks of the employment? I have never heard anybody brave enough to defend the doctrine of common employment. Those who have spoken about it have always said it was had law, lawyers have regarded it with derision, and there seems to be no argument against its repeal, but certain reasons have always been advanced as to why it should not be repealed in the particular manner proposed at the time. We have been told that such a proposal ought not to be made in a private Member's Bill. But surely this is the very kind of thing that ought to be dealt with in a private Member's Bill. This is a Bill of only one Clause, if we leave out the Clause exempting Scotland, and I have no objection to leaving Scotland in the Bill. I agree that a Measure like the Factories Bill ought to be brought in by the Government, but if private Members are to have any chance at all, surely this is the kind of Bill they ought to introduce.
Does the hon. Member agree that this Bill is as far-reaching as the Factories Bill?
No, I do not, and I am prepared to give the hon. Gentleman five minutes to explain why he thinks that this Bill is as important as the Factories Bill.
It may be far-reaching in some respects, but its provisions do not justify the hon. Member's statement. I am not going to follow my hon. Friend in the figures which he gave as to cost. He has been dealing with the cost of compensation as a whole. The hon. and gallant Member for Barkston Ash (Colonel Ropner), when a similar Bill was before the House previously, said that the cost of compensation in the mining industry was 4d. per ton, and he expressed the opinion that this proposal would mean another 4d. per ton, but he did not hazard a guess as to what it would cost in any other industry. The hon. and gallant Member then went on to make the plea that the risk would be unassessable, and that nobody could state how much it would cost. First, he put a figure of 4d. per ton on it, and then he said it was unassessable. He was reminded by an hon. Member below the Gangway that third-party motoring risks to-day are altogether unassessable but that people are nevertheless insured against them, and it would be just as easy to insure against the risks with which we are dealing here. Therefore, with regard to that point, I am convinced that the cost will be very immaterial and, practically speaking, very small.You have now in the compensation world the right to sue an employer for neglect. Can any hon. Member tell us how many cases have been brought before the High Court where a man has been claiming compensation because of neglect on the part of his employer? There must be comparatively few such cases, and I am convinced that these cases also would be comparatively few. Most of the men are in trade unions, and if a case went to the High Court, it would not be because of any other action than that taken by a trade union. Will trade unions jump into the High Court on frivolous cases? They consult their own executive committees, their solicitors, and counsel here before ever they endeavour to take a case to the High Court, and they are convinced that they have a chance of getting through before they enter into the High Court, so that hon. Members may depend upon it that money will not be frittered away in that respect. I want now to deal briefly with some of the things that the Attorney-General has said on this question. I do not know whether he has gained more wisdom since he spoke last on it, or whether perhaps he has gained a little more experience, but his argument was that in the Compensation Acts you had a bird in the hand which was worth two in the bush. I think that sums up his argument. He suggested that in 1880 there had been a breach in the principle of compensation, that after 1880 there had been deliberation and a considerable amount of talk and negotiation between various bodies, and that they had come to the conclusion that a compromise would be better, and that where a man could get compensation without having to prove negligence, in a case where it could not be proved against him, it would be better than risking what he might get under the Common Law. The Attorney-General suggested that it would be better to spread out the amount of compensation, in smaller amounts, it might be, than to risk what you might get under the Common Law, and I think he suggested that if he himself had the choice between compensation at a lower rate and the alternative of the Common Law, he should certainly go for the compensation, even thought it might be at a lower rate. The hon. and learned Gentleman rather suggested that compensation came automatically, following an accident, but everyone who knows anything about the trade unions knows that that is not so. My hon. Friend has given figures to show how difficult it is to get compensation. A man has to prove that an accident happened arising out of or in the course of his employment, and sometimes they are rather twisting and turning that sentence about an accident arising "in the course of" employment. Therefore, it is not as easy to get compensation as the Attorney-General would suggest. Again, it is not always certain that you will get it at all. I want to compare the figures of compensation that a man might get under the Compensation Acts with the figures of the compensation that he would have a chance of getting under the Common Law. The limit to-day is 30s. a week, but everybody in the mining world knows that he is a very fortunate man indeed who is getting 30s. a week compensation at the present time. A man came into my office the other morning—and I have his letter in my pocket, too—who is married and has two children. He has an arm off, and his compensation is 20s. 4d. a week, and that is all that he can get. That is half of his wages. They always treat a man who is on compensation as though he were partly responsible for the accident which he has suffered, and they divide his wages up and say that the accident proves that he was in some way responsible himself, and, therefore, he can only get half his wages. But surely, if you can prove that somebody else has been negligent, you ought to be able to get more, and there is a very strong psychological effect on a man who has met with an accident caused through the negligence of somebody else. Therefore, I want the Attorney-General to go a little farther than he went last time, when he said, "This is a private Member's Bill, and Members can vote as they wish, but do not vote for the Bill." I want him to leave the vote to the free will of the House, and not to urge Members as he did on the last occasion. I do not see any good reason why this common employment doctrine should not be repealed. It is all very well to say that you can alter this principle, that you agree that it is wrong, but that there are gaps in the Compensation Acts, so why not make the alteration there? If you do that, surely the argument about cost goes. It does not matter to me or to a workman whether he gets compensation under the Compensation Acts or under the Common Law, and if you say, "Why not alter the Compensation Acts?" you are saying in effect that you will get what you could get under the Common Law, and if you do say that, surely the argument of cost has all gone. If you are prepared to remedy this grievance under the Compensation Acts and not under the Common Law, I do not mind which way you do it, but it is much easier to alter this than it is to alter the Compensation Acts, because the moment you touch the Compensation Acts, you find a great many conditions to deal with, and it is not by any means a small matter, but this is, comparatively speaking, a small thing. As far as costs are concerned, I am sure they will be very immaterial and will not lay a great cost on industry, as some hon. Members opposite urge that it will. I want to remind hon. Members opposite of the difficulties of the Compensation Acts. You have your 30s. limit, and you have your limit of £300 for a widow and £300 for the children, which makes £600 in all. Compare with that the damages that our men read every day of people getting as a result of accidents on the road. I am not suggesting that some of those damages are not extravagant, if you compare them with the compensation law, but surely there is a big gap between the two. Again, every time we have a colliery explosion, the whole world goes out in sympathy, and you have your Mayor's fund and so on, which is a demonstration of the fact that really everybody believes that the compensation figures are not high enough. But you do not get those things when you have a single accident. I have had in connection with my collieries 14 widows receiving compensation, and they are each of them receiving also out of a fund contributed to by people in the district, but I have also 15 war widows in connection with the same colliery, who are only receiving compensation, and some of them are living side by side with those other widows. Hon. Members can imagine the feelings that sometimes arise, not, of course, against each other, but against the system which allows that kind of thing to exist. I therefore urge, either that we should get a repeal of this grievance, or that the Attorney-General should give us a promise that he will remedy it under the Compensation Acts. I know that he may say that the Government have their slate pretty full just now, with their rearmament plans and so on, and that they cannot find time for remedying these small matters. He admits that this doctrine is wrong and bad law. Is it not a common dictum in law that wherever there is a wrong there is a remedy, and that justice should not only be fair, but appear to be fair? It does not appear to be fair, and it is not fair.
I beg to move, to leave out the word "now", and at the end of the Question, to add the words "upon this day six months"I should like to say how much I have appreciated the contributions that have been made from first-hand experience by the hon. Members who moved and seconded this Bill. I should like to ask the House to approach the matter first with a critical regard for what we are seeking to do. We are seeking to impose a liability on the employer for the negligent acts, that is, the wrongful careless acts, of his servants to which he is not a party or privy in any way. When we are doing that we want to consider carefully what is the position of the employer at the present time.
It is not a new principle.
It is a new principle with regard to servants. I should like to put to the House what, in my view, an employer is liable for at the present time. First of all at Common Law he is liable if he sanctions, when he ought to know about it, a defective system of work. I have seen cases where people have recovered on that ground. He is liable if he is negligent in his choice of servants, that is, if his manager or superintendent is not up to his job. He is liable if he ought to know about the plant in his works and the plant falls below the standard. In addition, he is liable for a great class of other causes of injury. Whenever any legislation has imposed a duty on someone for the benefit of a definite class of His Majesty's subjects, that legislation is deemed at the same time to have given that class a right of action against the person on whom the duty is laid. To-day, in addition to the provisions of the Factory Act itself, the workman has a right of action with regard to the regulations made by the Secretary of State under Section 79 in respect of dangerous trades. May I pause to remind the House that there are no fewer than 38 different trades which are now regulated under that section in respect of which the work is regulated, firstly, with regard to what the employer can do, must do and must not do, and, secondly, with regard to the workmen. Then there are a number of other Acts, of which the Coal Mines Act is one, and many decisions have been given in which miners have recovered at Common Law because of breaches of the Coal Mines Act and regulations made thereunder.In all these regards common employment is not defence to breaches of these Acts or the regulations made thereunder. Therefore, there is no mean liability on the employer at Common Law. The hon. Member for Barnsley (Mr. Potts) was not too clear to me about the position of the Employers' Liability Act, 1880, but I am sure he meant that that Act is still in operation. The difficulty about that Act, I frankly admit, is that the rules of its application are, to my mind, rather full of small complications and are difficult to bring into force for example, an action under it has to be brought within six weeks, and brought in a county court, and so on. An important point which the hon. Member did not bring out is that the Act of 1880 is limiting in damages to three years' pay of the worker at the time, but it does impose a liability for the acts of a superintendent or a foreman who has direct charge and indicates what the worker has to do.
Is it not a fact that the 1880 Act is of very little practical use?
In this class of litigation I have been in only two cases under the 1880 Act, but at the present moment there are so many statutory regulations that cases which are covered by the words of the 1880 Act are in most cases covered by the regulations under the Factory and Workshops Acts. If the hon. Member considers that and considers the working of the Act, he will probably agree with my view. That Act is there and can be used, and is used with advantage in certain circumstances. The third branch is the workmen's compensation legislation, and there, of course, as hon. Members have pointed out, there is the great distinction that men need not show negligence on anyone's part.These being the three branches of the law by which liability is imposed on employers, I want the House to consider that to-day the employer is liable on the ground of negligence, apart from the Workmen's Compensation Acts, for every act or omission which he could reasonably foresee and against which he could take steps to guard. What this Bill is seeking to do is to make him liable for acts of servants of his, which acts he could not with reasonable foresight have in his mind as about to happen in his works. I would remind the House that Parliament has recognised this doctrine four times, and has three times expressly re-enacted it. It was recognised in the Act of 1880, and was re-enacted in the Compensation Acts of 1897, 1906 and 1925. We are not, therefore, dealing with judge-made law, but something which this House has seen fit to re-enact on three occasions. Let me deal with the point which was raised by the hon. Member who moved the Second Reading of the Bill and which was raised with great force last time from a bench below the Gangway by the hon. Member for Dundee (Mr. Foot). That was, why should there be a different standard of care towards a worker in the employer's business and towards someone who is outside? Why should there be a different standard of liability? It seems to me that there are two reasons. Despite what the hon. Member who has just sat down has said, it seems to me that they are reasons which require consideration. Negligence sounds a formidable word, but it is another way of saying that someone has broken the duty laid upon him. It has been made quite clear that to the outside world the employer and his business are regarded as one whole. If any part of that business, any unit of it, does damage to any one in the outside world through a neglect of duty, then the head of the business is responsible in that way. Why is that? It surely is because it is not for someone outside the business to go in and try to find out the relations between the employer and his servant, to see whether the employer may be liable or not. Obviously there would be an easy ground of abuse there. Therefore, with regard to someone outside a business, he has a right against the head of the business for the act of any servant. But someone inside the business is in a different position. He does at any rate know his own section of the business and the employer has well defined duties to him. He has the duty that he must not set plant which he has reason to think is defective; he has to choose competent fellow servants, to employ a proper system of work, and above all and most important in 1937, to abide by the duties which Parliament has imposed upon him. That is known to both sides. Hon. Members opposite know that there is not only a general notice but that the regulations under the Act are posted up, and the man inside the business knows generally what are the duties that the employer owes towards him. It was in that way that, as far as the employer is concerned, as far as superindendence is concerned, he knows the duties and where he is, and on the other hand he is deemed to know that there are risks to be met from the potential actions of his fellow servants. Let me give two quotations, one showing the English view on which this doctrine is founded and another showing the American view expressed in Massachusetts about the same time. Lord Cranworth, when the doctrine first came up and was applicable to England and Scotland, put it this way:
That is the way in which it was put in England. Let me give one sentence showing how it appeared to the American judges. Chief Justice Shaw, of Massachusetts, said:"When several workmen are engaged to serve a master in a common work, they know or ought to know the risks to which they are exposing themselves, including the risk of carelessness, against which their employer cannot secure them, and they must be supposed to contract with reference to such risk."
"Where several persons are employed in the conduct of one common enterprise or undertaking and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity or neglect of duty, and leave the service if the common employer will not take such precautions."
May we take it that the hon. and learned Member's opinion is that the doctrine of common employment does apply?
My suggestion is that as far as the duty to a servant is concerned, the doctrine of common employment applies to superintendence to those who are superintending the position, that is to the manager or the managing director who does not come within the doctrine of common employment, but does apply to those who are, so to speak, on the same plane as the injured servant, because they approach it in the two ways. I suggested, with the knowledge of the employer's obligations to them and the risks on their fellow workers.
Is it the hon. and learned Member's view that the law of common employment does not extend to the person in superintendence.
If the House will bear with me let me put it in words which have a greater authority than mine. I have looked it up:
I will give the reference. It is the case of Fanton v. Denville, in which Lord Justice Greer so held. From that point one comes to this: that there is a logical basis for, but different views as to the strength of the basis for, the doctrine on that ground. But we are not seeking to reject the Bill entirely for that reason. We are doing so for two further reasons. One is that I the development, the improvement in the position of the worker has taken a different course, has taken the line of omitting the negligence. Let us consider that point for a moment. Do we want an action which is based on negligence and which means fights at law on question of facts, involving negligence, or do we want to continue on the other course of workmen's compensation, by which negligence is left out of the picture? If this Bill were passed the question one would have to consider would be whether a fellow worker, very often in exactly the same class of work as the injured man, was guilty of negligence. In my opinion and from my experience that would be putting both parties in a very difficult position indeed. Let us try to imagine a case. You have two men who have known each other, live near each other and are members of the same trade union, who have the same pride in their job and follow the same general methods of life. One day one of them falls below the standard of care of the ordinary prudent man—that is all that negligence is—and his companion is injured. He falls below the standard in the view of his injured companion, but is it not a fair resume of one's experience that one very seldom gets a man against whom that is alleged to admit that he has been negligent? My own experience is that it is the greatest rarity in the world to find a man who will admit that he has been negligent. Therefore, the position will be that we shall have these two men with this controversy between them and they will have to stand up and meet it together. The reply of the man who is accused of negligence will be that it was the injured man himself who was guilty of negligence. I ask hon. Members opposite to apply the knowledge, to which I paid a sincere tribute in the opening words of my speech, which they can contribute to debates of this sort to the position which I have endeavoured to point out, and ask themselves whether what they are asking for is going to help, is going to be worth it in the end. That is one aspect of the matter. Another aspect is the position under the Workmen's Compensation Acts, and I should like to deal shortly with the points which the hon. Mover put forward in that regard. He raised the question of lump sum settlements. Like hon. Members opposite, I have had the experience of advising upon hundreds of lump sums settlements in the course of my life, and I would remind them that since a case—I think it is Rudd's case in 1924—it has become immeasurably more difficult for hole-and-corner settlements to take effect. The settlement has to be brought before the Registrar, and in many cases he does not take the responsibility but refers it to the Judge. And hon. Members opposite will have had the same experience as I have that, the Judge has often refused to sanction the proposed settlement and insisted on other terms or on the case taking its course. I ask hon. Members opposite to apply their general experience in any industrial districts with which they are familiar. The ones I know best are Lancashire and North Wales, and I cannot imagine any County Court district in those areas where anyone gets away with a hole-and-corner settlement to-day. There may be isolated cases which do not come to one's notice, but I suggest that what I have said is the general tendency."The directors or other superior agents or representatives by whom a corporation fulfils its functions, are not, however, the fellow servants of the inferior servants of the corporation for the purposes of this rule."
Much depends on whether the man is a member of a trade union.
In many cases the settlement has to come before the Registrar and the Judge in order that there should be a good discharge to the insurance, and whether the man has that advantage or not the Registrar or Judge insists upon substantial justice being done. It is clear that the settlement must be registered today in order to give a full discharge.The hon. Mover quoted the 1934 figures. They are only the figures of a certain number of industries which are tabulated. In order to get the complete figures you have to add the figures for indemnity societies and then to make an allowance for industries which are not included in either list. That is how the figure was put at about £11,000,000, that being the calculation based on those figures. I ask the House to note a very remarkable point in the figures quoted by the hon. Mover. After allowing for the amount paid in compensation, the amount paid in costs of litigation, and management charges, there is a figure of £46,000, or 97 per cent., as the profit which the insurance companies were making out of that species of cover. Hon. Members can check the figures in the White Paper before the debate closes, and they will find that I am right with regard to the 1934 figures, and therefore I ask hon. Members who criticise the position to realise that this is not a form of insurance in which large profits are being made.
Surely the proportion allotted to managerial expenses is too high?
That raises a matter for argument, into which I will not go now, but that is the profit after providing for managerial expenses, which are usually included among the overheads. Following usual accountancy methods the profit works out at only 97 per cent. Another aspect of workmen's compensation is the trouble which it is said is necessary in order to secure compensation. Again one can only go on one's own experience. By 1923, when I began to undertake these cases, the number which raised difficult points of law over questions about "arising out of "and" in the course of "were very few. The vast majority were disputes about the medical position. In the ordinary workmen's compensation case in the County Court the costs are approximately £20 to £25 a side, that is in the ordinary case in which scale B costs are allowed and two doctors are called for the applicant and two for the respondents. In any case at Common Law which goes to the High Court the costs are about £150. I am giving general figures.Therefore, we have on the one hand a form of remedy which involves very few disputes as to liability to-day; there have been so many in the past that the law is getting hardened and clear; but in which you get disputes on the medical position, and they can be settled inexpensively. Under the other remedy the workman—or his trade union in most cases—has got to risk £150, and if he loses and claims his compensation the compensation can be attached to provide for the costs of the other side. Therefore, I venture to sub mit that the method by which we have proceeded, that of the Workmen's Compensation Act, irrespective of negligence, is a method which really does more good, taking it by and large. I agree that in many cases the amount to be recovered is much smaller than at common law. Again hon. Members will be able to supplement my experience with their own, but the largest sum for which I have ever settled a workman's compensation liability claim is £950. [Interruption.] The hon. Member's experience is not very different from my own. On the other hand in those cases there might be damages of £3,000 or £4,000, or in an exceptional case, at Common Law, even more. If the suggestion made in this Bill comes into force, in all cases liability will only be established after a struggle between sections of the workpeople, and the increased litigation and the increased doubt about deciding the questions will mean that the costs will be much higher. I am disposed to agree with hon. Members that if we were absolutely satisfied that what is proposed is an essential change in the interests of fairness and decency in industrial conditions we should have to face the position as to increased costs, but I am not satisfied of that, and I have endeavoured to put forward reasons to show why I am not satisfied.
I laid stress on the point that trade unions would not go into court unless they were quite satisfied that there was a chance of success, and that would lessen the costs.
The hon. Gentleman says there will be very few cases; again I can give only my own experience, mainly in South-West Lancashire. In the last five years when I was junior counsel, I should think I had to deal with at least three cases a week where it was a question whether one ought to go to Common Law or take compensation. One cannot possibly say that this matter does not arise. Hon. Members must have had exactly the same experience, and however sensible your trade union secretary is, and however much he knows—as well as I know—that in a given case compensation ought to be taken, your member comes down with a cutting taken from some newspaper, showing that someone in Newcastle has got £10,000 for a totally different case. You have the greatest difficulty in preventing him from going to law about it. I am glad to think that lawyers do not often advise actions; at any rate, we do our best. This is the kind of difficulty that we have all had to face.I should like the House to believe that I, personally, am not content with the present position, although, for reasons that I hope I have made plain, I do not agree with the Bill. May I give four suggestions for improving it? The first is, to improve the procedure under the Employers' Liability Act. We ought to keep that Act in mind as one that may be used if we make the procedure simpler. The second suggestion is that we ought to delimit clearly, it may be by an Amendment to the Act—I have not thought out the statutory procedure, but I think it can be done—where the lines of superintendence and common service begin. For example, I have in mind the case of an assistant manager who was in charge of a department. It is doubtful at the present moment whether he will get anything, but we could do a great deal of good if we knew exactly where we stood. The third suggestion is that in cases of transport, where the employer has undertaken the duty of carrying a workman, he ought to be liable at Common Law for his negligence. I think the Attorney-General will agree in regard to guests that a host is now responsible for the guest who is driven in his host's motor car. He will agree that the doctrine of common employment is only another manifestation of the doctrine under which a guest, in certain circumstances, has not a right against his host. Those are three practical grounds for improving the Bill. The fourth is that we should go through the Regulations made under the Factories Act and allied Acts very carefully every year, in the light of the decisions, in order to get them crystal clear so that both sides know where they are. I have had a difficulty, which I am sure hon. Members opposite have also had, about the interpretation of these Regulations. My suggestion would meet quite clearly the position which I am endeavouring to set up, and that is that an employer should be liable for what he can reasonably foresee and guard against. Tighten up your Regulations if you will, but the employer will know exactly what he has to meet, and if he does not meet it there can be prosecution and you can mulct him in damages. The result will, if you like, be higher premiums. At any rate, make it clear, and do not go upon a principle which leaves it indefinite and which, in the last resort, comes down to responsibility for a casual and collateral act which even the best employer with the best will in the world could not prevent.
The fourth suggestion which I had in mind is not like that of the hon. and learned Member. He will know that the limit on the i880 Act is three years' wages. Would he not change that in a case of total incapacity?
In that regard, you have to consider, that you are going beyond the ordinary rules of superintendence, and are coming down to the form of making an employer liable for the actual negligence. That is going over the line between superintendence and co-working—on the side of co-working. There should he some limitation.
I am quite prepared to consider it, although I cannot commit myself to any figure. I know that in Lancashire and in the mining industry people are earning only £2 a week, and that £300 is very little. I am quite prepared to consider that matter, as I am sure everyone would. I beg to offer my apologies to the House for speaking at such length, but I. have tried to deal with the Bill in a spirit of practical consideration and to put before the House results and suggestions which are at any rate based on many years' study of the question.
I beg to second the Amendment.I have followed with interest the speeches of the present and previous Member for West Derby for many years and I am sure that the House will have appreciated the way in which he has dealt with this subject. I assure hon. Members that I approach it in exactly the same spirit. I congratulate the Mover and Seconder upon the way in which they spoke upon the subject. The whole House will have great sympathy with the motives of the Bill but, like my hon. and learned Friend, I cannot accept the Bill as it stands. May I remind the House that in 1934, that eminent lawyer Sir Walter Greaves-Lord brought this Bill to the House; that was an action taken from this side by back bench supporters of the National Government, and rather goes to prove that the objects at which it aims have the sympathy of all sides of the House. The Bill was not acceptable when it came into Committee. It was found impracticable, as was shown by the Motion for the closing of the Committee which was moved by Sir Walter Greaves-Lord:
That shows the impracticability of dealing with this great subject from the point of view of the private Member. Last year the hon. Member for East Rhondda (Mr. Mainwaring) brought this Bill forward and the House had to reject it for the same reason. It has been tried, and has failed. Previous debates have underlined the point which I wish to bring to the notice of hon. Members, and that is the expense to industry. One hon. Member said that no man could tell what the cost would be, while the Seconder said that the cost would be small. He cited third-party liability in motor-car insurance. Those who know anything about third-party motor-car insurance would say that if that risk were removed the cost of motor-car insurance would be cut down by over 75 per cent. I think the same is applicable to this Bill. In the last Debate, nearly 12 months ago, I think it was on 20th March, the hon. Member for Kingswinford (Mr. A. Henderson) said:"That, in view of the grave questions raised by the Bill, the Committee have decided not to proceed further with the consideration thereof."—[OFFICIAL REPORT (Standing Committee B), 1st May, 1934; col. 1208.]
I would remind the House of what was reported by the Royal Commission on National Health Insurance, which was appointed in July, 1924. That Report was signed by the late Arthur Henderson. It said:"We are not interested in the cost."—[OFFICIAL REPORT, 20th march, 1936; col. 804,Vol. 350.]
I will make one further quotation. The Report of the Royal Commission on Unemployment Insurance, which was signed by Miss Bondfield, says very much the same thing:"Our country has chosen, and rightly as we think, to make several great schemes of social insurance an integral and permanent part of the national life. But while this principle may be accepted, it is clearly essential that a balance between the expenditure on these schemes of productive capacity of the country should from time to time be struck even though this can probably be done only in a very general way and without reduction to any precise formula of which, indeed, the conditions, do not permit. If, ignoring such conditions of prudence, the rate of expenditure outruns in a substantial way the productive capacity of the country the result must surely be to stultify the aims which the nation has set before itself. It is small consolation to a bankrupt to be told that his doctor's bills have been the main cause of his disaster."
Those are most profound words of wisdom and I should like them to get further publicity, because there is a danger of the country losing sight of the fact that we have to pay for these extra things. It is easy to say that the suggested change would mean only a small increase in costs, but I think it was the hon. Member for the Newton Division (Sir R. Young) who last year quoted a case where under workmen's compensation law the compensation might be £350, whereas under Common Law it amounted to 10,000. Therefore, to say that the costs would be negligible to manufacturers and others engaged in industry hardly holds water in view of these figures. I cannot work out what the costs would be: I only wish that I could. The hon. Member for Westhoughton (Mr. Rhys Davies) in the Committee stage of the Bill in 1934 brought up the same point and suggested that it would mean a reduction in wages. The time comes in these matters when the very employment of the people themselves is jeopardised if you pile up the burden of costs too much, and for this reason, that we are an exporting nation, and if we go beyond a certain distance in adding to the cost of manufacture we shall not be able to send our cargoes abroad. We must still sell our goods abroad if we are to purchase from abroad the foodstuffs and raw materials which are an essential part of the life of the nation."While the many social services which this country has instituted represent different principles in the distribution of financial responsibility, the provisions they make have a common origin in the annual income of the community derived from its current productivity and its accumulated savings. None of these social services has reached finality in development and every form of political thought is anxious, and no doubt rightly anxious, that their evolution and extension should be continuous. But this evolution cannot usefully be considered as an abstract ideal; it must be studied as a practical reality in the light of the social and economic conditions of the time. The community gains from these services, but it has to pay for them."
Grow more food.
My hon. and learned Friend has clearly put the legal side of the position to-day, and I, as a non-lawyer, cannot hope to expound the position in the way that he did, but I want the House to remember these facts, that insured workers, except non-manual workers earning more than £350 a year, get compensation irrespective of whether the accident is due to their own negligence, whether it is due to the negligence of their fellow workers, or the negligence of the employer, or the negligence of anybody else, or even if there has been no negligence at all. If death, or serious or permanent injury takes place—I am not discussing the amount of compensation, and I am not agreeing that the amount of compensation is adequate—compensation is payable even if the accident is due to the fault of the workman himself, even if there has been serious or wilful misconduct contravening statutory or any other regulations, or even if he has acted contrary to direct and specific orders.This Bill seems to ignore everything that has happened since 1837. Prior to 1837 there was no claim except at Common Law. I am not saying that there are no gaps in the present system of legislation. I think there are gaps, and that they should be filled, but I do think that they should be filled on the existing system which we have built up, and that we should not return to the old system. Such gaps should be filled up by the Government. I join in the plea that the Attorney-General should listen to arguments from both sides of the House and to the desire which, I think, is very general, that the gaps should be filled in and levelled up. For reasons which my hon. and learned Friend has put so very adequately, and for the other reasons which I have haltingly put from the side of industry, I cannot support the Bill. I am sorry that I interrupted the Member for North East Derbyshire (Mr. Lee) on the figures which he quoted in respect of a certain insurance company. He mentioned the Employers' Liability Assurance Company, a company which does other assurance besides employers' liability. I do not know whether the figures he quoted related entirely to employers' liability, and I hope the House before they accept those figures will find out whether they included marine insurance, accident, fire and other insurance. I do not want misapprehension to arise on that point as it might easily do if the figures are wrong. I have great pleasure in seconding the Amendment.
The point raised substantially by the last speaker is that of costs. It is very commonly said that employers now pay as high wages as industry can stand. I have never looked into the matter, but I should imagine that in negotiating, for instance, in respect of miner's wages, the costs of workmen's insurance must be a relative factor taken into consideration in settling wages. When the Bill has been in operation for a year or two, the unknown figure of its cost will soon be ascertained, and that cost will enter into the wage agreements to the detriment of the men. It is therefore a matter for the working men to settle among themselves whether they desire each to contribute to a common fund out of which those workmen who are injured by the negligence of a fellow-workman shall receive the common law compensation instead of the Workmen's Compensation Act compensation, and, although I do not concede the claim that is sometimes made by the party above the Gangway that they alone represent the working men of this country, I feel that, if it is their view that the working men of this country would welcome such a change, that view is entitled to the greatest respect.The hon. and learned Member who moved the rejection based a great deal of his case on the argument that an employer ought to be liable for what he can reasonably foresee, but not for what he cannot reasonably foresee: but with respect to everyone else in the world except the employer's own workmen he is held to be liable not only for what he can reasonably foresee but also for what he cannot foresee. The hon. and learned Member suggested that there was a different standard of liability as regards the outside world and the people who are inside the employers' organisations, because, he said, the people inside were in a position to know and to estimate the risks they were running in joining an employment. But is it seriously suggested that if I am offering somone a job as a carpenter he estimates his risk of being run over by my estate lorry driver, and then decides to reject my offer of employment? What sort of reception is that man going to get when he goes and asks for unemployment relief next week? Is there any suggestion that a man can now pick and choose his work according to his own estimate of what the risks of the employment may be? The hon. and learned Member says that if one of two workmen is injured through the negligence of another there is then going to be a terrible dispute between the two workmen as to which of them was negligent. But surely that is precisely the same dispute as would arise if my chauffeur ran over the hon. and learned Member to-morrow, and that kind of dispute has been going on in the courts for years.
Does the hon. Gentleman suggest that I am in common employment with his chauffeur?
The doctrine of common employment would not arise, and therefore there would be a legal dispute as to whether the hon. and learned Member or my chauffeur was negligent. The hon. and learned Member does not regard that as a very terrible thing, so why should he regard it as terrible that in certain cases there might be a dispute between my estate lorry driver and my estate carpenter as to which of the two had been negligent? Having listened to the debate, I adhere to the opinion I held when I came into the House this morning, that nothing substantial can be said or has been said in favour of the doctrine of common employment. It simply amounts to this, that if my lorry driver runs over somebody else's carpenter I am liable, but if he runs over my carpenter I am not. Therefore, hon. Members who oppose this Bill are taking it upon themselves to preserve as part of our common law a doctrine in favour of which there is nothing to be said whatever, and I do not think that that ought to be done unless there are overwhelming reasons for doing it.The reasons which have been suggested in the past were put as well as they could be put in the speech of the Attorney-General in 1936. That speech, if I may say so without any disrespect to him, seemed to me when I read it—I am sorry to say I did not hear it—so smooth and plausible on the first reading, and so unsound when I read it a second time, that I almost wondered whether it had not been composed by the right hon. Gentleman the Home Secretary. It merely seemed to me to come to this, that some bargain had been made in 1880 or in 1897. I should like to look into that bargain suggestion. It is suggested that about the time of 1880 or 1897 there were some people who desired to abolish the doctrine of common employment. That does not surprise me; I think that probably there have always been people who wanted to abolish the doctrine of common employment. There were also those who desired to protect the worker who suffered injury while at work without any question of negligence on anybody's part arising at all. The suggestion is made, I think, that some sort of tripartite bargain was struck between the employers, the workers and the Legislature, by which it was agreed that the workman who suffered an injury while at work, without any question of negligence arising, should receive some form of compensation—rather moderate compensation—in consideration of which the workers were apparently for ever to give up their claim to compensation on the common law scale if they suffered injury through the negligence of a fellow-workman. That bargain, if it ever was made, is not binding on this House, because no House of Commons can be bound by anything done by its predecessors; but apart from that it is surely for those who set up a bargain or contract to produce evidence in support of it, and at no time have I heard quoted from speeches made in 1880 or 1897 any evidence that a bargain of that kind was made. It is true that in 1897 we gave the workers rights under the Workmen's Compensation Act, and we left the common law as to common employment where it was. I think there is a danger of being confused into thinking that there is a connection between those two things, because they deal with somewhat like problems, but I suggest that there is no more connection between the Workmen's Compensation Act of 1897 and the common law as to common employment than there is between, shall we say, the Health Insurance Act and the doctrine of common employment, or between the Old Age Pensions Act and the doctrine of common employment. The things to my mind are entirely separate, and I think it is a great pity that in this debate they have been so very much confused. We are really dealing solely with the question whether this doctrine of common employment shall remain any longer a part of our common law. I do not think that a bargain has anything to do with it one way or the other. I have already given as an example the case in which, if an estate lorry driver runs over somebody else's carpenter, the estate owner is liable, while if he runs over the owner's own carpenter the owner is not liable; but there is another example of the working of this doctrine which I think is worth putting to the House. Suppose that a house is being built, and that the builder employs a carpenter, a bricklayer and a plasterer, and gets the plumbing done by a sub-contract. If the carpenter, the bricklayer, the plasterer and the plumber are working together on the house, and one of them is so negligent that he pushes down from the scaffold a pile of bricks which falls on to another of them and does him an injury, can the injured workman recover or not—can he get the common law compensation, or does he get the very much lower workman's compensation? It all depends on who pushes the bricks and who is hit. If the carpenter pushes them on to the plasterer, he cannot recover; if the plumber pushes them on to the bricklayer, he can; if the bricklayer pushes them on to the carpenter, he cannot; if the plasterer pushes them on to the plumber, he can; if the plasterer pushes them on to the bricklayer, he cannot. Hon. Members who propose to vote against this Bill are voting for that.
I apologise for not being here throughout the Debate, but I have had to be at the Board of Trade with a deputation. I was in time to hear the excellent speech of the hon. and learned Gentleman the Member for West Derby (Mr. Fyfe), and certainly if there is a case to be made against the Bill in my judgment he is a competent person to do it. On this occasion as on the last when the Bill was before the House, I have come to support it. Last week I spoke of justice for the county court judges, and I have had some acknowledgments thanking me for speaking on behalf of those who could not represent themselves. On this occasion, too, I approach this matter on that high plane of justice, not merely because I represent a working-class constituency in the main part, but because in regard to justice nothing but what is best is good enough. The objections to the Bill appear to be, first, that the doctrine of common employment is sound and ought to be preserved; secondly, that the Bill ignores all the measures that have been taken to compensate injured workmen since 1880; and, thirdly, that it will impose too heavy a financial burden on employers and so cast an extra burden upon industry. All these objections are, in my opinion, unsound. The doctrine of common employment is not really and genuinely part of the Common Law of England. I challenge anyone to combat that. It was never heard of before 1837, at which date, without principle or authority, the decision in Priestley and Fowler was given. Only the doctrine of judicial precedent has kept the doctrine of common employment alive, because Priestley and Fowler was decided on the remarkable ground—I give the exact words—
In 1850 in the case of Hutchison v. the York and Newcastle Railway, it was defended on the ground—again I quote the exact words—"Of the inconvenience which would result if actions of such a nature were allowed."
One of the penalties from which I suffer is that I was taught Euclid in my boyhood. I had to learn it, there was no question of free will. If you did not learn it, God help you, because no one else would. This seems to be an absurd position, to use the words of my old friend Euclid. The absurdity of the doctrine can best be shown by examples taken from actual cases which have been decided against the workman on these grounds. The chief engineer of a vessel is in common employment with an ordinary seaman employed by the same company, the master of a ship with a seaman, a railway guard with a gan of platelayers employed by the same railway company, of whose existence even he was not aware until after the accident when he sought to recover damages. The absurdity of the doctrine may be further emphasised when it is realised that it is not the collaboration in common work but the employment by the same master that makes the doctrine apply. If two men are working on the same job, employed by different masters, and one is injured by the negligence of the other, he can recover damages from the other's master, but if they happen to be employed by the same master he has no remedy apart from the Workmen's Compensation Acts. In the second place, far from ignoring the legislation that has been passed since 1880 ameliorating the workman's lot, the Bill is necessary to bring the general law into line with statutory law. A workman can obtain compensation for an accident when he himself has been negligent. Why should he not also have the right, which is the right of everyone else in the world except himself, when another servant has caused him damage through negligence? The Bill does not ask for damages to be awarded where the workman himself has been negligent, because another doctrine, that of contributory negligence, would rightly prevent him recovering at Common Law. In the third place, the objection of hardship to industry is diffi- cult for me, at any rate, to appreciate. The cost will only be an increase in the insurance premium, for there will be no increase in the number of applicants. The amount of damages may, of course, increase but, if the law were altered, it would not result in workmen deliberately allowing fellow-workmen to injure them in order to obtain damages. To me as a working man's son the idea is repugnant and fantastic. The British working man is the finest workman in the world and, if this doctrine of common employment is allowed to remain part of the law, it can never be honestly said that British law gives all the protection to workmen to which they are entitled."of an implied term in the contract that the servant should take all the ordinary risks incident to the employment, including the risk of injury at the hands of fellow servants."
I should like to add my meed of praise for the most interesting and informative speech that the House heard from the hon. and learned Gentleman the Member for West Derby (Mr. Fyfe). The subject we are discussing is one of no little importance, striking at the very root of society. I believe that the motive that prompted my hon. Friend in bringing the Bill forward shows that he is imbued with good, sound common sense because, irrespective of the fate that the Bill may meet, it is at least abundantly clear that there is a consensus of opinion on all sides of the House that the law as it stands is not what it ought to be and, accordingly, we ask the Attorney-General, if he is on principle against the Measure, that he should at least see that it is part of his duty in the very near future to bring in some remedial measure. If I may utter one word of complaint against the Bill, it is that it does not refer to Scotland. For the life of me I cannot understand why this sub-division should have arisen, because the law of common employment applies equally to Scotland as to England and Wales. In a case away back in 1891, the Lord Chief Justice, dealing with this doctrine of common employment, said:
I have little, if any, professional experience of the application of the doctrine as far as England is concerned, but I have some little experience of it in my own country. This step is taken to-day for the simple reason that there are people who are completely dissatisfied with things as they are. The hon. Member who spoke for the Liberal party and the hon. and learned Gentleman the Member for West Derby looked at the subject from the point of view of expense. All they were concerned with was how much the measure would cost employers if it became law. Only a very few days ago the same hon. Member was supporting a Government Measure to incur an expenditure of probably no less than £1,500,000 for rearmament within a very short period of time. I think the House really ought to realise to the full the extent to which this doctine of common employment applies. The hon. Member for Barnstaple (Mr. Acland) gave a typical illustration. He pointed out that a plumber would be covered if bricks were thrown upon him by a person who was not in the same common employment. In order to succeed, an employer must show that there is engagement in the same undertaking, and that there is amenability to the orders of the same employer. The hon. and learned Gentleman who moved the rejection seemed to be at issue with me as to the actual scope of common employment. I understood him to suggest that he was not prepared to accept that, say, a manager could not possibly be covered. But a manager s just as much in common employment as an ordinary workman is."The case falls within the principle established not only in this country but also in Scotland, Ireland and America, that a servant, when he engages to serve a master, undertakes, as between himself and the master, to run all the ordinary risks of the service, including negligence on the part of a fellow servant when he is acting in the discharge of his duty as the servant of him who is the common master of both."
Not in England. It has been clearly established that a manager is not within the doctrine. He is the alter ego of the company.
I bow to the opinion of the hon. and learned Member but a person acting as a foreman is definitely covered by the doctrine of common employment. Take an illustration from shipping law. It is not so many years ago that a case came before the courts in which two ships were in collision, and it was held that the two masters were not subject to the rule of the same employment, and that accordingly there was no liability. We are concerned with what is happening in an industry like the mining industry. Let me give two illustrations. The first is the case of a young man 17 years old employed in a colliery in Stirlingshire, working at the pithead. He was asked by the foreman to go down to a place where waggons were standing on a gradient of one in fifteen; a place where he should not have been asked to go. He was directed to remove the blocks from the waggons and shift them. If the lad had disobeyed the dictates of the foreman he would have been dismissed his employment. He fulfilled the order; and was killed. Immediately the question of damages arose and the employer said that the doctrine of common employment applied and that all he was entitled to was workmen's compensation. All that his family got was £70.On Wednesday of this week I was dealing with the case of a father living with his daughter, her husband and two young children. He is a hoisting attendant at a colliery, with a wage of 14s. per week. The man at the top of the hoist shaft started it when this man was standing at the bottom, and the hoist came down and killed him. He had a pension of 10s. per week and, of course, that has gone. To-day in that village in the county of Stirlingshire a daughter who has lost her father is offered £65 as compensation under the Workmen's Compensation Act. It is positively shocking. As a young man in this House I must say, having regard to such circumstances as these which are known to every hon. Member, that I do not know how they can support such a principle as common employment. If the doctrine of common employment were wiped off the Statute Book, would it in any way assist employers?
Is it on the Statute Book?
Would it in any way assist the employers if it were dropped? I assume that one of the first things an employer ought to have is a definite selectivity so far as men are concerned. If this doctrine disappeared I think employers would realise that there was a greater compulsitor placed on their shoulders to see that there was nothing careless in their employment and, accordingly, the number of accidents would be automatically reduced. Two months ago a case came to me of a young man, again employed in a colliery in my own county. He was sent by the foreman to push behind a hutch three feet high, on the top of which was placed a gate-end box 24 cwt. in weight. In front of the hutch, on the foreman's instructions, four men were placed pulling on a 9-foot long chain to pull the hutch up an incline. This young man was pushing at the back. What happens? The gate end box falls off, and the young man Robinson has his neck broken. The principle of common employment applies. The dependants of that young man are not entitled to damages at common law because of the application of that particular principle. I shall be both shocked and astonished if I find that any Member in this House to-day is prepared to go into the Lobby against this Bill. Is the outlook changing? The hon. Member said that we were back in 1837 again.
Back to the position in which we were before then.
Are we to take it that the mental outlook to-day is static as compared to what it was then? The various Acts placed upon the Statute Book show that opinion has changed. The hon. Member who seconded the Amendment referred to the fact that, under the present Workmen's Compensation Acts, a workman is now entitled to compensation even though he committed a breach of statutory Regulations—again a step forward. Is it to be said of this House that, although steps are being taken forward towards workmen's compensation so far as Common Law responsibility is concerned, absolutely nothing is to be done. I was astonished to hear the hon. Gentleman who seconded the Motion suggest to the House that one of the main points in the speech of the Attorney-General when the Bill was last before the House was that there is no need for this Measure because there are ample means to meet the demands under the Workmen's Compensation Acts. I do not know whether that is correct or not. Does the hon. and learned Gentleman, in all seriousness, believe that, if a man is injured, whether by the fault of a fellow servant or not, 30s. a week as a maximum is sufficient?
I do not think that the hon. Member who quoted the passage from my speech, not necessarily with complete accuracy, in fact attributed to me any statement such as that which the hon. Gentleman is now attributing to me.
I bow to what the hon. and learned Gentleman has said. I assumed, whether it was from the Member to whom I referred or not, from the various statements that were made that that was the case, but I accept the explanation of the learned Attorney-General. I would repeat that, irrespective of whatever may be the fate of this Measure to-day, it is abundantly clear that there is a definite concensus of opinion in all sections of the House, that the people of the country are completely dissatisfied with the law of common employment as it stands, and I trust that, if the Bill be defeated to-day, the learned Attorney-General will see to it that, in the very near future, the forward step which the House demands should immediately be taken by the Government.
On a point of Order, Mr. Deputy-Speaker. I want to ask for your guidance. I understand that the previous speaker made a reference to the number of Scottish Members in this House, and I would like to ask you whether, in view of the fact that the Scottish Members take a continual part in the Debates, this reference was not completely out of order? I would also point out that the majority of Scottish Members who have been in this House all the week look upon the remark of the previous speaker, who has made his first appearance this week in the House, as a decided impertinence.
The hon. Member must settle his difference with that hon. Member.
Hon. Members opposite in putting forward this Bill are taking an extraordinarily retrograde step. One of the things which I gathered from the supporters of the Bill was, first of all, that the doctrine of common employment originated in 1837 with a considered judgment in the High Court of Great Britain. That, of course, is not the case. The doctrine of common employement has been a part of the law of almost all nations from the dimmest periods. Although in industry to-day the doctrine of common law is unsatisfactory, I do not believe that the correct action is to remove it as a means of defence to an action as long as any common law liability remains between employer and employed. One of the things which we have to keep in mind is that, at the same time, the employee has a good deal of recourse to the Common Law; in any case where negligence on the part of the employer is proven he can claim at Common Law. That, on the whole, is against the principle which was adopted when employers' liability and workmen's compensation first came into action. We have heard from the hon. Member for Dumbartonshire (Mr. Cassells) of a large number of extremely hard cases of people who have suffered under the operation of the doctrine of common employment because by being driven on to the Employers' Liability Act or the Workmens' Compensation Acts they received what the hon. Member considered to be and no doubt probably were, very inadequate damages. Surely, the proper remedy is not to remove one of the doctrines of the Common Law, but to amend the Workmen's Compensation and Employers' Liability Acts.In almost every country where there is such legislation as workmens' compensation or employers' liability, the mere fact that the employee comes under any law of that kind automatically debars him from recourse to Common Law at all. That should be so, because the question of compensation in industry to-day has gone beyond the idea of a battle between two parties, one claiming damages from the other. Workmen's compensation and employers' liability have now become an insurance scheme, and it must be looked upon in that light. Under this insurance scheme there should not be recourse to the ordinary workings of the Common Law. It is quite arguable that the details of the insurance scheme should be amended, and I think there would be a great deal of support in many quarters of the House for such an amendment and for an increase possibly in the scale which is allowed under workmen's compensation. It is, however, a different matter to remove one of the defences which at the moment exists under the law. Such a removal would, I think, bear rather unfairly on the employer of labour, because in the cases in which the doctrine of common employment applies, there is, a fortiori, no negligence whatever on the part of the employer—
Will the hon. Member explain what he means in his reference to the scale under the Workmen's Compensation Act? I know of certain figures for cases where the injury is fatal and there is the weekly amount, but I know of no scale.
That is more or less what I had in mind. Guidance is laid down for the award of compensation under these Acts, and it may well be that it should be more generous guidance. To return to my original point—a fortiori there can be no neglect by the employer if the doctrine of common employment applies, and therefore, he is made liable for what may be a very heavy sum for something which has not arisen through any fault of his own or through any neglect of any of the regulations laid down for the safety of workmen, and has not been caused by any executive action of his. Although I would not for a moment say that the employer should not be liable to pay compensation even in cases where the fault has been entirely on the side of the employer, I still think it is unjust to make him liable for the almost unlimited sum which might be recoverable under the common law. Another practical difficulty is that, if the doctrine of common employment, which is the law as it stands, were removed, employers would be made liable to an almost unassessable insurable risk. At the moment, whatever the scales on which compensation is ordained to be paid, the insurer knows to what he is liable in any given case, and he can assess his risk accordingly; but under common law there is no limit at any time, and there would be created an uninsurable risk which would make it extremely difficult for the employer to carry on, for if he could find no insurance company to take the risk, it would mean that he would have to carry it himself, and there is a very large number of employers who could not face the contingent liability which might be forced upon them at any movement.
Is that not a justification for nationalisation?
I should be out of Order if I were to discuss whether nationalisation would or would not be a solution for the problems of workmen's compensation. As things are, there is no question that it would be extremely difficult for many employers, particularly the small ones, to face that contingent liability. I hope hon. Members opposite will not press this Bill to a Division, because the Division would be on one specific point. A great many of us who have an enormous amount of sympathy with the point of view of hon. Members opposite, and have a great desire to see better compensation paid, would still have to vote against the Bill because we consider it wholly impracticable, and that might imply that we are lacking in sympathy with that which they are putting forward, which is not the case. It is easy to multiply, as did the hon. Member for Barnstaple (Mr. Acland) a number of fantastic occurrences under the existing law, and it would be equally easy to multiply an even larger number of fantastic occurrences under the law as it would be if this Bill were passed. I will not weary the House by doing so, but if hon. Members care to refer to the proceedings of Standing Committee B on 1st May, 1934, they will find a speech which I then made, and which, in all modesty, I still think is a very good speech, in which a large number of these instances is put forward, instances which at that time I deliberately made as fantastic as possible, although I took the trouble to have very expert legal advice to assure me that they would be possible under the amended law.We shall not get any real profit from considering anomalies in the present law, and certainly we shall not make things any better by creating anomalies under a new law. I believe the House should concentrate now in getting the whole question of compensation and liability completely away from the Common Law. I am as great a lover of the Common Law as most people, and very often I have said that most of our troubles come from a cloud of statutes which obscure the ordinary course of justice. We have taken the step of cutting the laws away from the Common Law, but we have not done so completely. We have left a sort of half-growth, and have not made a clean cut. The best thing would be to remove the operation of the Common Law from all questions of damage or compensation between employer and employé,and get the whole thing on to a proper insurance basis, possibly with greater scales of compensation than at present and almost certainly with far greater scales in cases where any accident is due to the neglect of the employer. I submit to hon. Members opposite that that would be a better solution than the one they are proposing to-day.
It occurs to me that right hon. and hon. Members opposite are very hard to please. Recently I sat through a Debate in this House on a Workman's Compensation Bill submitted from this side of the House. Speeches were made on the benches opposite sympathising with the general object we had in view and with the injured workmen, and as to-day there was not a single attempt to defend the law as it exists. I do not think the hon. Member for Smeth-wick (Mr. Wise) spoke—
Unfortunately I was unable to be present on that occasion.
But other hon. Members then said, "Why do the Labour party persist in bringing in this omnibus Bill? We admit there are flaws and defects in the compensation law, but why do hon. Members of the Labour party not bring in a short Bill to remedy some of the outstanding grievances? If they would do that, and drop this long, cumbersome Bill, we would support them." To-day we have brought forward a short Bill to remedy one of the big grievances concerning the relationship of the injured workman to the employer, but we have been asked by hon. Members opposite, "Why do you not bring in a Bill to deal with all these things in a comprehensive reform?" I would like to know when we shall be able to do something that will please hon. Members opposite. When we bring forward a comprehensive Bill, they say they want something shorter; and when we bring forward a shorter Bill, they say they want something longer. The hon. Member for Smethwick said that one of the reasons he wanted the House to reject this Bill was that under it the liability could not be assessed. May I point out to him that when the first Workmen's Compensation Act was passed, the position was quite the same? The liability, we were told then, could not be assessed. Every time new liabilities of any kind are introduced we are told they cannot be assessed.
Under the original Workmen's Compensation Act the liability was assessed. There were statistics of accidents in the past and there was a definite limit to the amount of compensation and it was, therefore, an assessable liability, but in this case the compensation would be an unlimited liability.
I do not speak as an expert and all my knowledge of the Workmen's Compensation Acts is derived from daily experience as a trade union officer of their practical working. But I feel sure that there are actuaries in this country who, with the knowledge which we already have of accidents and the possibility of accidents, could assess the liability of the employer in this respect. I do not wish to speak at great length, because as a Welshman I am interested in another Bill which I hope will be passed to-day, but I submit to the Attorney-General that this Debate, like every other Debate on this subject, has revealed the chaos of the existing law. I therefore urge that the Government should accept this Measure and remove this outstanding grievance.Like many of my hon. Friends on this side I have had experience of the hardships which the present law entails. Times without number those connected with trade unions are faced with the dilemma of advising a man as to whether he should sue under the Employers' Liability Act or claim under the Workmen's Compensation Act. My experience is that in 98 cases out of 100 the man is advised to take a claim for workmen's compensation. But behind all this is the fact that anomalies are growing up and increasing in number. In the South Wales coalfield to-day men travel long distances to work. The old habit of living almost on top of the colliery is disappearing, and thank God for that. Owing to modern transport facilities and the establishment of pithead baths, which enable men to travel like human beings and not like beasts of burden, many of them now live as much as 10 or 20 miles away from the pit. Suppose that one of those men is injured on the road. If a man is fatally injured in the pit, the maximum compensation that can be claimed for his wife and children is £600. A miner reads in the newspaper that some one who has been badly injured in a road accident has got £1,000 or £2,000, and he asks, "Why should an injury sustained in the pit be compensated for at a lower figure than an injury sustained on the road? "That is an example of the present chaotic state of the law. If hon. Members opposite are sincere in what they have said, their speeches amount to an invitation, in which we join, to the Attorney-General and the Home Secretary to go into this whole matter and introduce a comprehensive measure to remodel the Workmen's Compensation Acts on modern lines. I think I can speak for my hon. Friend the Member for Barnsley (Mr. Potts) and my other hon. Friends on this side when I say that, if we were given a pledge that this year we shall have a new and revised Workmen's Compensation Act to do away with these anomalies, we should be inclined to withdraw this Bill. But in the absence of such a pledge, to suggest that we should withdraw this Bill and go in for something else is nonsense. Under the present compensation laws and as a result of what has been called judge-made law, many hard cases arise. Reference has been made to the maximum of 30s. per week compensation and I make bold to say from my own experience, that the percentage of injured workmen who are able to claim 30s. per week compensation has declined substantially in the last five years. Our experience in South Wales is that the average weekly compensation for total disability centres round £1, and in many cases it is less. I heard an hon. Member opposite speak very eloquently the other night for Merthyr and refer to Merthyr's public assistance burden. Part of that burden is due to the fact that the townspeople of Merthyr have to supplement inadequate compensation payments to injured workmen. But because there has been a test case and a decision has been given which is accepted as judge-made law, we are told that this anomaly cannot be remedied. We have suffered very severely in the mining industry during the last 10 years from short-time working. Suppose that a man who works two or three days a week receives an injury, his compensation is assessed upon his average earnings for 12 months prior to the accident. That man has only had six months of actual working time in the year but his six months' earnings are divided by 52 to arrive at the weekly average. I am sure that was not intended by the Act. The Compensation Act said that a man who was injured should receive, on the average, half his wages during incapacity. As the result of a decision that half of the earnings is reduced, in those cases, to a quarter. The man who has been working half-time, does not get half the earnings of a full year, but only one quarter. There are men whose weekly compensation for total disability under that decision is 20S. or as low as 18s. Further, when men in the mining and other industries lose fingers or arms or eyes, under the Act they can claim compensation as other injured men can, but there is no compensation payment at all for the loss of a limb. We have in South Wales a number of cases of that kind. A man loses an eye and his case goes before the county court judge—and to the county court judges in the main, I pay my tribute. But an eye specialist will come forward and say, "I am convinced that this man can still work in the pit. There is a man in a similar condition doing it somewhere else and this man can do it also." They are always able to produce the case of a man who, having lost an eye, has no compensation of any kind. But although the judge in such a case may hold that the man has suffered no incapacity, let that man go to the manager of the next pit and ask for a job. Will anyone suggest that the loss of the eye will not be an insuperable obstacle to his engagement? A collier with whom I discussed this subject, told me of a boy aged 16½ years who, as the result of an accident in the pit, lost four fingers of his right hand. This boy had begun to play the violin and his teacher in Swansea said that he had the touch and the musical instinct and gave promise of going far as a musician. He had already distinguished himself at several eisteddfodau or musical festivals. Not only were his prospects of employment in the pit seriously damaged by this injury, but a promising musical career was blighted. That boy cannot claim one halfpenny compensation for the loss of his fingers. There is, I know, a committee working on this problem, and I myself would pay a tribute to the registrars in the county courts who are doing their best to prevent bad settlements, but we know what happens. The insurance companies employ people who go around knocking at the door. They go to a man who is in receipt of 20S. a week compensation and who has to go on to public assistance in order to get that supplemented, and they offer him, say, £70 It looks like a fortune, an immense sum, and the man, who is perhaps worried and harassed by debt and who would very much like to have £25 to clear his rent, takes the offer. We on this side all know of cases of men who have accepted far less than they should accept in such circumstances as these. I hope the Committee which is considering the subject will report very shortly, for it seems to me that these committees take a terribly long time in which to come to their conclusions. Finally, I want to ask this House, on the arguments which we have heard, that until such time as we get the Bill which, I take it, we have now been promised by the Government—a comprehensive Bill, such as is badly wanted, to correct the chaos in the workmen's compensation law—it should accept the Bill that is now before us to remove this flaw, this thing for which there is no defence and for which there is no argument, this distinction between workman and workman which is penalising workmen. We therefore ask the House to accept this as a small measure of the larger Bill which, I take it, we are promised for the near future.
I hope that this Bill will receive a Second Reading, I am sorry to find myself in opposition to my hon. Friend the Member for Smethwick (Mr. Wise). The hon. Member for' Barnsley (Mr. Potts) will not misunderstand me when I say that the best speeches that I have heard in the past three years in this House on the subject of this Bill were delivered from the opposite side of the House. Sir Walter Greaves-Lord and Mr. Thorp, both sturdy supporters of the National Government, gave it very strong support, and the senior Member for Cambridge University (Sir J. Withers), on two separate occasions, speaking out of the plenitude of his own experience, endorsed the Bill with the utmost deliberation. To-day, for the first time, I have heard, from the hon. and learned Member for the West Derby Division (Mr. Fyfe), a defence of the doctrine of common employment, which every other lawyer who has spoken in the House has hitherto refused to defend. It has been an object of wonderment for young lawyers, of derision for others, and irritation to Judges. Mr. Justice Neville described it—I speak from memory—as an excrescence on the Common Law and as
It was described by the senior Member for Cambridge University as an absurd doctrine; it was strongly contested by Lord Esher in 1877. We should hesitate before refusing a Second Reading to a Bill which would remove such a doctrine from the law. I do not support the Bill unreservedly. There should be some provision for contracting out; and I agree with the hon. Member for Smethwick that it would be difficult to obtain a cover from an insurance company if the Bill was passed into law without some modification. But third-party road accidents are an insurable risk, and I do not think that difficulty is insuperable. With all that has been said as regards the defects in the present scale of workmen's compensation and of its administration I almost unreservedly agree, but from this side of the House the hon. and gallant Member for Barkston Ash (Colonel Ropner) in 1936 declared that he would be very glad to support a Bill of this sort if it was produced by the Government, and there seems to be a great deal of common ground on all sides that the doctrine ought to go. My hon. and learned Friend the Member for the West Derby Division and my hon. and gallant Friend the Member for West Birkenhead (Lieut.-Colonel Sandeman Allen) suggested that the Workmen's Compensation Acts are an alternate channel through which compensation cases may be dealt with and that we should not go back upon that line of progress. I appreciate the strength of their argument, but of the 18,000,000 persons who are gainfully occupied in Great Britain to-day, only 12,000,000 at most are covered by workmen's compensation, and there are six categories of persons by law excluded, some of whom I see no prospect of including. I quote, from the debate on 2nd February, 1934, the senior Member for Cambridge, who said that the doctrine of common employment still applies"a purely arbitrary and artificial rule founded on neither principle nor right nor, prior to 1837, authority."
"to members of the Army, Navy, and I Police; secondly, to persons earning more than £250 per annum, otherwise than by manual labour; thirdly, to casual employés, otherwise than in trade or business; fourthly, to out-workers; fifthly to members of the employer's family living with him; and, lastly, to per- sons temporarily hired from another firm."—[OFFICIAL REPORT, 2nd February, 1934; col. 737; Vol. 285.]
I do not want to question the accuracy of the hon. and gallant Member's quotation, but I should not imagine that men in the Army and Navy have any right to compensation at all.
I did not profess to set forth the doctrine of my knowledge, but the police have, I believe, statutory claims, but not the Army and Navy. The Workmen's Compensation Acts have made great inroads upon the doctrine but there are still some 5,000,000 persons not covered by workmen's compensation, some of whom we should certainly include. Whatever may be the fate of this Bill, I hope the Government will seriously consider either abolishing the doctrine of common employment in relation to them or extending the area of compensation. I am confident that practically every Member of this House, on either side, will (agree that public policy requires a wider extension of what we may call the zone of security. The extracts which my hon. and gallant Friend, the Member for West Birkenhead gave from the Royal Commission of 1926 on the dangers of extending the social services of the country left out of account those social services which are maintained, not as contributory services, but by contributions direct from the workers and those who employ them. Every tax on the employers is eventually a tax on wages, as was recognised in 1936 by the hon. Member for Westhoughton (Mr. Rhys Davies), but I submit that it is worth it. It embodies a Christian principle to which we are steadily approximating in our legislation. That principle is to be found, first, in the First Epistle of Paul the Apostle to Timothy:
We must provide for our own. The second instance is again from St. Paul, to the Galatians:"If any provide not for his own, and specially for those of his own house, he bath denied the faith, and is worse than an infidel."
but he goes on to say:"Bear ye one another's burdens,"
The first sentence is better translated "one another's calamities," and the second means, in the Greek, that each man must bear his own responsibility. That is the basis of our social services. This doctrine of common employment is deeply rooted, but when the hon. Member for Smethwick says that it is common to all nations, I can quote him half-a-dozen legal authorities who state that it is completely unknown outside the United Kingdom and has only existed here since 1837, though my hon. and learned Gentleman the Member for Argyllshire (Mr. Macquisten) has assured us that, at all events in Scotland, it goes back to Roman times. I hope that we may later have the advantage of his wisdom and wit on the subject. The Bill ought to receive a Second Reading if only to give the Government and the Members of the House a full opportunity of considering what will be the consequences of it; from our deliberations some material of great value to the Government might emerge. I am one of those who are profoundly dissatisfied with workmen's compensation as it stands now. I am not alone in that view, for the Home Office in the past 18 months has appointed two strong committees to go into certain aspects, but the terms of reference of those committees are nothing like so broad as every hon. Member, without exception, who has spoken from this side of the House would wish. I have never heard any speech in the last three years on this subject which did not conclude with a hope that the Government should make far more drastic inquiries into the operation of the Acts than has yet been made. The Holman Gregory Committee of 1920 is obsolete. It made certain recommendations which had they been adopted, might have put us in a better position to-day, as for example, the proposed appointment of a commissioner, whose duty would have been to supervise the operations of the Act and to assist Parliament to make modifications as and when they arose. If the House decides to refuse a Second Reading to this Bill, I hope that we shall regard it simply as a preliminary to a thorough investigation. The scales are bad, for it is contrary to public policy that a man who has been injured in an industrial accident should have to go to the Poor Law in order to supplement what he is allowed in conformity with the terms of an Act which dates from 1923. I was dealing with a case last night of a man who got only 25s. while disabled. He was married and had four children, and he could not live without Poor Law assistance. The burden fell upon the ratepayers not in the area in which he was employed, but in another area altogether. The employer would have been glad personally to have done more for him, and when I drew his attention to the case he willingly came forward. It is not, however, right that it should be made a matter of charity, and the Poor Law should not be invoked. There are other questions which are not germane to this Bill which require early and careful co-operative thought on both sides of the House. There is far less difference between us on this matter than is commonly supposed. The debate on the Workmen's Compensation Bill which was introduced from the other side recently bore that out. If we cannot have this Bill and the enlightenment that it would bring, I hope that we may soon have a further inquiry, for the Workmen's Compensation Acts will never be so extended as to cover all the cases to which the doctrine of common employment applies. The doctrine itself, is admittedly obsolete and deserves to disappear into the limbo of forgotten things, though I am prepared to concede to those who think, as my hon. Friend the Member for Smethwick does, that before it goes we must have an extensive overhaul of the Workmen's Compensation Acts themselves."Every man shall bear his own burden."
With a great deal that has been said by my hon. Friend the Member for Hitchin (Sir A. Wilson) I cannot help concurring. He has quoted the hon. Member for Cambridge University (Sir J. Withers) but he is accustomed to dealing with big business and with matrimonial causes and things of that kind, and I do not: kink he knows much as a practising lawyer about workmen's compensation or employers liability. A great deal has been said about judge-made law on common employment. It is not judge-made law at all. It arose from the social conditions of centuries ago. Hon Members will remember at the beginning of Scott's "Ivanhoe" we read about a tall burly man who stands against the hillside and round his neck is a brass collar with "Gurth the son of Beowulf, born thrall of Cedric of Rotherwood" inscribed on it. That is an indication of the state of labour in the old days. They were either slaves or serfs: they were the property of the owner, and the owner could not possibly be liable for what one bit of his property did to another. That is the origin of the doctrine of common employment.
We have lost the collar, why not do away with the doctrine?
That is how the doctrine originated. I have always been of the opinion that many Highlanders hold that any man on a weekly wage who is liable to be discharged at a moment's notice is a wage slave. He is not so well off as the old chattel slave, because at least the employer had to keep the chattel slave when there was nothing doing. Now he turns him out and the man has no way out but to go to public assistance. That is because the commercial system has not the money to keep him going. One has to look at this question from the practical point of view. I am old enough to remember the results of the Employers Liability Act, 1880. I joined the legal profession about a decade afterwards. What was the result of that Act? If a man was employed and was instructed by a foreman, he would have a claim against his employer because the foreman had in him the power of ordering which vested in the employer himself, and the employer was made liable. The doctrine that one man is liable for another man's fault is an artificial doctrine. If I employ a man I am responsible for my own acts. If the man makes an error and injures somebody else I also am made liable for the man whom I employ. Why should I be? It is un-Just. The man should have recourse against the man who injured him.
Will the hon. and learned Gentleman look at this from a practical standpoint. If one workman does something which injures another workman, what is the good of the injured workman taking action against the other workman when he would have nothing to meet the claim?
Nearly all litigation arises between men who have nothing and men who have something. When both sides have nothing there is no litigation. It is an artificial doctrine in our law to make a man responsible for another man's mistakes. It is not an artificial doctrine to say that when it is the fault of a fellow workman the man should not be responsible. That is a modification of the artificial doctrine. Suppose you take a ship away to some distant part of the world and one sailor injures another at the dockside at Shanghai or Hong Kong or somewhere like that. Think of the cost of such a case when the ship comes home. All these cases of injury fall into the hands of a certain class of lawyer. We used to have lots of them. They had touts, who followed the ambulances on their bicycles. They besieged hospitals and they had understandings with some doctor inside, who were sending to particular lawyers, and there were all sorts of cadging. Then an action under the Employers' Liability Act was raised against the unfortunate employer, and at the end of the day there was very little for the workman. That sort of thing raised a whole breed of that type of legal adviser, any number of them. The beauty of the Workmen's Compensation Act is that it has almost entirely killed litigation. The percentage of claims that actually go to litigation is infinitesimal. Why? Because there is no evidence needed, except that a man was working in the course of his employment. He can get compensation even if he is drunk when employed, because I suppose the framers of the Act thought it natural for a man to get drunk now and again. That practice has almost died out now, even in Glasgow, for you seldom see anyone the slightest bit touched in any way, still less so when working. The hon. Member for Springburn (Mr. Hardie) knows well enough that in the big licensed premises in Clydebank it was a very common thing at breakfast time for a man to go in for a pint and a glass. The licensees had rows of glasses ready waiting for the men as they came in. That has all died away. The Workmen's Compensation Act is so framed in favour of the worker that even if he is guilty of misconduct or carelessness he still gets his compensation.The liability under this Bill would be unlimited. It is really a Bill for the relief of unemployed lawyers, and the litigation that would arise from it would be colossal. Cases to-day are settled very largely on this line: The Geddes Committee put on heavy court dues for cases heard in the courts. That is most nefarious. There should be no court dues; the courts of the land should be open without any payment to all His Majesty's lieges. To-day, when an action is raised, the claims inspector looks to see who the solicitor is. He says, "Now we must wait until this fellow has a good account." He' then goes to the solicitor and says, "It will be some time before the case comes for trial and heavy expense will be incurred. Come along and settle the case. I will give you so much." It is generally about one-fifth or one-quarter of what the man will recover. The solicitor sends for the wretched man and says, "Look here; I have an offer of £100. It is a miserable offer and you will get far more from a jury. But you will get it entirely into your own hands with not a penny deducted, for they have paid me generously." He is quite honest about it. Then the solicitor says, "But if you are going on with this case you will need to put up the money for court dues and the money to pay the jury. I do not mind running the risk of losing my fees, but I am not going to be out of pocket, and the jury's fee is 10s. a day, which is a heavy outlay." In England the jury fee is 1s. 6d. a day. I might explain that the theory was in England that the winner stood refreshment for the jury when he had won his case, and in those days is. 6d. covered a great deal of refreshment. But in Scotland the fee is 10s. a day. My hon. Friend the Member for Smethwick says that that represents the difference in price between beer and whisky. These court dues are a heavy charge and there is actually a charge of 10s. an hour while a man's counsel is speaking. So if you have a long-winded counsel you pay heavily for it. It is as if the court was a taxi-cab. I have heard my friend the late Lord Justice Clerk Scott-Dickson say to a counsel intervening at the luncheon hour, "You are taking 2s. 6d. of So-and-So's time." To resume, the solicitor says to the wretched man "You have to put up that money, it may be £20." and, of course, the poor fellow cannot find £20. He, therefore, accepts that miserable settlement. That is what is happening. There are other ways of settling. I knew a man who adopted this way of settling. He would have £80 in silver laid on his table. Then he would say to the man, "If you will take it, it is all yours." The fellow had never seen so much money. The solicitor would say: "I will give you a canvas bag to carry it away." When people were known to have had a lump sum settlement the bookie was on the doorstep at once. Sometimes the man's wife would say: "We will start a little shop," and some wily commercial traveller would come along and stock the shop. They would think they were doing spendidly as they sold the stock, but in a few weeks or months they were on public assistance. The truth is that the man on a weekly wage does not know how to handle a large sum of money. It takes a long time to learn how to handle it. As a matter of fact there are only a few inhabitants of the world who were born with the instinct for looking after money. The result of the passing of this Bill would be a perfect maelstrom of litigation and the only people who would get any benefit out of it would be the new crop of lawyers who would grow up. I may be sounding very disloyal to my own profession but I regard unemployed lawyers as a great danger to the community. They are just like so many hungry sharks. They are the creators of all these abominable Marketing Boards which ruin producers and at the time raise the cost of the people's food. In Canada they go round to the farmers and address them and get them to vote for Marketing Boards which spread ruin everywhere. They call it "farming the farmers." I do not want to see a great crop of such men growing up, and that is why I am opposed to this Bill as a practical man who knows all about this side of the profession. I have acted for defendants and for plaintiffs. Once I made a very reasonable offer to a man without serving any writ or document. I wrote a letter and a representative of the insurance company came round, one of their claims settlers, a very "fly" class of men. If there were a railway accident to-morrow they would be on the doorstep of the home of everybody who was injured in order to try to get the man to settle before he had recovered consciousness. One of those fellows came and offered me just a trifle. I refused it and said the settlement I had proposed was a most reasonable one. He went away, but afterwards came back and gave me what I thought was a reasonable sum. I said to him, "I am very glad you had the sense to settle." He said, "I should not have got away with it with So-and- So or So-and-So," naming two solicitors. I said, "Why did you first offer me such a ridiculous sum? It is an insult?" and he answered, "Well, we thought you were such a decent chap that you would not screw us up." I said, "That is all very well. I will screw you hard for my client but not for myself." That is the sort of thing which this Bill will lead to, crops of solicitors growing up and endless litigation. There is no worse service you can do to a man than to put him into the law courts. That is a terrible thing to do. People are driven to bankruptcy, insanity and suicide by litigation. Litigation is civil war, it is war in the civil courts. If we introduce this legislation it will be enough to break the hearts of many employers of labour and destroy the nerves of both the worker and his wife. An hon. Member opposite has argued that there is litigation under the workmen's compensation, but there is always a certain amount of litigation till the borders have been defined. Of course there are always border-line cases, and it is those which lead to litigation. A new Act of Parliament always involves some litigation over those border-line cases. Then it has been said that the sums awarded under workmen's compensation are inadequate. The hon. Member for Hitchin instanced the case where a man with a family got compensation amounting only to 25s. a week, and no doubt that is a very hard case, but the point is that a man is not awarded compensation on the basis of the number of his family. If that were to be the case it would lead to inquisitorial investigations by insurance companies, who would say to an employer, "You must not employ men with philoprogenitive tendencies or we shall have larger sums to pay". All our wage system is on an entirely wrong basis. We pay the man with a large family the same wage as a man with no family at all. In the old agricultural days the labourer had a small sum of money as wages, but as he grew up and married he got the advantages of a free house, and milk and meal and other things of that kind. In cities we cannot conduct affairs on that basis. However, there ought to be some system of investigation into the circumstances of the workman because all these liabilities can be insured against, and the man could be given a more ample compensation. But these risks which the employer would run ought to be capable of calculation, so that the employer will know what his business expenses are going to be. Under this Bill the risks are practically illimitable. Motor car insurance has been cited as an example. I would remind the House that one of the first things that happened after motor insurance became compulsory was that some of the motor insurance companies burst up and large claims were never settled. That is not a satisfactory position. Moreover, motorists pay high premiums. The insurance premium costs almost more than the petrol; it is more than the cost of tyres; it is the equivalent of depreciation on the car. It is a colossal charge; and it must be remembered, too, that private motor cars are not run for profit. On practical grounds I oppose this Measure, and would urge upon hon. Members that they should not involve working men and their employers in litigation, because if they do they will in the end be very much in the position of the old sheep farmer in the Highlands who went to a lawyer with a claim against another farmer. The lawyer said "I will give you a letter to Mr. So-and-So." He handed the farmer a letter of introduction. The farmer opened it and found that it read:
He showed it to his opponent, and at once the two farmers settled the case, and they settled it in the true Burnsian fashion. They adjourned to a neighbouring hostelry, and there they sat down and fulfilled the words of Burns:"Here are two fat 'wedders' from the braes of Balquidder. They have fallen out thegither. So if you fleece the one I'll fleece the other and we will make them agree like brother and brother."
I would repeat my warning to those members who are putting the workmen's case in this debate that they will be doing them a great injury if they get this Bill passed into law. They will be landing workmen in a maelstrom of litigation and they will not get any good out of it. The only people who will benefit will be the new class of sharp lawyers who will arise. The better course would be to pursuade the Government to look into the position as regards workmen's compensation, and to remove the evils and the excrescences on the present law, and to make it more generous towards the workmen. The position of the workmen who get hold of large sums of money in lump sum payments should also be safeguarded. Steps should be taken to see that the money is not taken off them by some rascal or other who will waste and dissipate it. For these reasons I shall vote against the Bill, for I have the greatest desire to see working men get the highest compensation for their injuries—provided that the money actually reaches them and is not taken off them by somebody else."Its ay the cheapest lawyer's fee to taste the barrel."
I think everybody will agree that we have had an interesting discussion. It has been particularly interesting to me, because a good deal of it did not seem to arise out of the Bill, and therefore I came to it with all the fresher mind. A large part of the discussion, and I think the most interesting part, has dealt with alleged defects and shortcomings in Workmen's Compensation Acts already on the Statute Book. The hon. Member for Barnsley (Mr. Potts), who moved the Second Reading of the Bill, said that in his opinion the 30s. a week limit under workmen's compensation was too low, but if this Bill were passed that limit would still remain for all except the class—and the hon. Member who seconded the Bill said they would be a comparatively small class—who could prove negligence by a fellow workman. Therefore, if the 30s. limit is too low this Bill is not the right method of attacking that problem. There has been a good deal of sympathy with the complaints that were made about the possible evils of the system of lump sum settlements, but I would point out that under this Bill every settlement will be a lump sum settlement. There is no provision under the common law by which damages can be obtained on a week-by-week basis. No sum could be recorded under the Bill, except a lump sum.
A substantial sum.
It would be greater in every case than under Workmen's Compensation. This particular evil arising out of the Workmen's Compensation Act is not covered by the Bill.The Mover of the Bill referred to the question of costs incurred by the trade unions in which he is interested, in taking up claims and settling them in most cases, and contesting the others. If this Bill were passed and cases were fought out, it is quite evident that the general scale of costs incurred would be very much higher than in cases under the Workmen's Compensation Act. Claims would almost always be fought in the High Court, and actions would be far more likely. It is true that under the Workmen's Compensation Act there have been a number of cases brought before the courts, but they are those in which a point of law may still arise—as to whether the accident was arising out of and in the course of the employment, and so on. I think there were some 402,000 accidents in 1934. There were less than 6,000 applications to the courts and 73 appeals to the Court of Appeal. I am certain that in some of the 402,000 cases it would be clear that there was no negligence of a fellow workman or contributory negligence by the person injured, and, therefore, no question of going to the court. A substantial number, I suppose, would be cases in which there was a possibility that negligence of a fellow-workman had caused the accident. I do not want to dogmatise as to what that figure is.
I do not think we can argue about that. The point is that, assuming you have arrived at the figure of possible negligence, a comparatively high percentage would, inevitably, be disputed in the court. On that one aspect I think that hon. Members on all sides of the House, particularly those who feel strongly that the present scale of compensation needs reconsideration, take the view that the Bill will deal with only a very small number of cases, or, at any rate, not a large number of cases, and that a comparatively small number of men would be beneficially affected. The large amount of the discussion which has been directed to the defects of the workmen's compensation system had, therefore, very little to do with the Bill, which has a much narrower scope.A point which has not been made before was made by the hon. Member for Hitchin (Sir A. Wilson). He asked the House to consider those who were not covered by workmen's compensation, that is to say, the non-manual worker, certain persons who are casually employed and possibly the Police, the Army and the Navy. If the Bill were restricted to those classes of persons, the interest of hon. Members opposite would not be as great as it now is, because it would cut out from the operation of the Bill a large number of those in whom they are particularly interested and whose cases they have been advancing to-day. I should think that the main arguments against the Bill, advanced, not by all, but by the hon. and learned Member for West Derby (Mr. Fife), in a speech which every Member of the House appreciated very much, were based on the fact that the people whom we have been considering are covered by workmen's compensation. No doubt if we ruled them out of the operation of the Bill, the arguments based upon them would be no longer applicable, and the case would become very much stronger for abolishing the doctrine of common employment for persons who are not covered by workmen's compensation. There has never been any particular agitation for that reform. I suppose the reason is that once you get away from the area of those employed by way of manual labour and whose remuneration is less than £350 per year, there is less liability that they will be injured as a result of their negligence. For example, my hon. and learned Friend the Solicitor-General and myself are in common employment, but we are very unlikely to inflict personal injury on each other by negligence in the course of that employment. Although the hon. Member for Hitchin told us that there was a considerable number of people outside the Workmen's Compensation Act who might be affected by the Bill, I daresay that the cases in which they might need it are so rare that nobody has directed his mind very much to that question. It is, therefore, right to say that if the Bill were confined to those outside workmen's compensation, much of the argument put forward against it would not apply. It has been pointed out that the Bill cuts across party divisions. It was originally promoted during my Parliamentary lifetime by an hon. and learned Member on this side, and it is now promoted by hon. Gentlemen opposite. Some of us are getting rather well equipped for dealing with the arguments on this Bill, having had to consider them for the third time. There are obviously arguments on both sides. I do not intend to put the argument in the form in which it has been put by a number of hon. Members opposite, that is, by asking why the workman or the employé should not be in the same position as the person outside. One short answer to that is that the workman is not in the same position as the person outside, because for one reason he is already in a much better position in that he can get some compensation whether there is negligence by anybody or not. If I am damaged by Mr. X's servant I have no sort of claim against Mr. X, apart from negligence, whereas if I am a servant of Mr. X then I have some claim, whether there has been negligence by a fellow servant or even if I have been negligent myself. I do not have to prove negligence. I can get compensation if it is an inevitable accident. As hon. Members know, in the case of death or serious disablement compensation is payable even if the accident is due to my own default. Therefore, we start with the position that Parliament has put persons who are employed in a far better position than the outside world, and you cannot really solve this problem by arguing on the basis that the two categories, those employed and those outside, can be compared in all respects, and that if you find in one set of circumstances a person outside has a better right than the person inside, it does not necessarily follow that the person inside ought to have exactly the same right. This is a Private Member's Bill, and it is for hon. Members to make up their minds what course they will adopt in regard to it, but I would put certain considerations to the House. It seems to me that in 1897 the House decided to deal by Statute with the liability of employers to employed persons on a quite new basis; that it would impose on them a statutory right in respect of injuries, if under the ordinary principles of law there would be no liability. The Common Law regarded, not the hardship to the person injured, but simply the wrong committed by the person who had inflicted the injury. If there was no wrong committed by anybody, then, although it might be a very great hardship to a person who might have an accident and damaged himself, the law said: "We cannot do anything for you; we can award damages only in cases where some default can be proved which entitles you to recover against one of your fellow citizens." Parliament in 1897 adopted an entirely new principle. It imposed on employers a liability unknown before, a liability which is not capable, if I may put it that way, of being expressed in the terms of the Common Law, because it was based on an entirely different conception. It was based on the obvious fact that so far as wage earners are concerned the hardship is exactly the same, if in the case of disablement and wages ceasing to go into the home, whether the man working next door has been negligent, or whether it has been due to a fall of roof in a coal mine or a quarry which was inevitable, or whether it was due to negligence. His needs are exactly the same, whatever the cause of the accident. Therefore, Parliament decided to go on the principle of considering the needs of the person injured rather than the cause of the accident, limiting it, of course, in this way, that the accident must arise out of and in the course of his employment. I suggest to hon. Members that they might do well to consider whether, if that principle is a sound one that is not the principle on which to proceed, and if necessary to extend it, rather than to introduce in certain cases a new statutory liability in cases where negligence can be proved. I was asked whether I could give a pledge—I do not know whether there was any optimism behind the request—that the Government would this Session introduce a Bill which would meet completely the heart's desires of hon. Members with regard to the reconstruction of workmen's compensation law. I can give no such pledge. I suppose that hon. Members have found from experience how difficult it is to get any definite statement from anybody at this Box on a Friday. I suggest that those who are anxious to get definite statements on particular points by means of Private Member's Bills are much more likely to arrive at that desirable result if the Bill which they promote deals with the points on which they would like a declaration. Let me take some of the points—the lump sum, minimum rates and so on. If the Bill was devoted to dealing with the reforms which hon. Members opposite think ought to be made in the law of workmen's compensation, I can conceive it being very much more difficult for the person standing at this Box to avoid giving a definite statement.
Should not we be told in that statement that it ought to be a Government Measure?
I cannot say what statement would be made, but I have not said that this Bill ought not to be introduced by a Private Member. I do say, however, that there would be a much better chance of getting a statement on points in which hon. Members are particularly interested in regard to the administration of the Workmen's Compensation Act. Various points have been discussed very fully and I have suggested to hon. Members certain considerations which ought to be taken into account.
We were in agreement with the Attorney-General when he said that we have had a most interesting Debate, an illuminating Debate and, I was going to say, an entertaining Debate, more especially the interlude from the hon. and learned Member for Argyllshire (Mr. Macquisten). The hon. and learned Member is always entertaining. When he was speaking I was inclined to point out to him that the Bill has no application to Scotland. None the less, his speech did reveal the type of person that is thrown up in the legal profession as a result of the system under which we are living at the present time. I do not think his remarks in any way tended to enhance the reputation of the members of the legal profession, though I am pleased to say we have quite a number of them in this House for whom we have a profound regard. In that connection I have in mind the obligation under which the House is to-day to the hon. and learned Member for the West Derby Division of Liverpool (Mr. Fyfe). He was most instructive, and I must say he did deal with the principle involved.Many of my colleagues have been compelled to refer to the Workmen's Compensation Act by way of illustration, not because they have any desire to confuse the real principle at stake in this Bill, but in order to try to enforce their reasons for asking the House to give consideration to the principle which the Bill involves. I think they have shown to the House and have convinced the Attorney-General that in many respects the workmen's Compensation Act, as it stands at present, does pauperise many of the victims of accidents in industry. Most unfortunately, many of those with whom we are brought into contact, or who come to us and seek our aid, we find to be existing on a paltry allowance. They are most respected citizens, in many ways capable craftsmen, but in no sense of the word have they received adequate compensation for the injury to which they have been subjected. That being the case, I feel sure the House is not surprised that we have introduced and reintroduced this Bill, because we feel that this small Measure does strike at a vital principle, and, if we won that principle, it would at least give us an equal opportunity with other citizens in the land. I have in mind at the moment the case of a man with whom I used to work at the bench before I came into this House, but, before I go more fully into that case, I want to endeavour to get the House to appreciate the point of view from which the principle involved here is viewed by the majority of working men who understand it. They feel that the workman, in spite of his being a workman, should have as a citizen equal status with every other citizen. That status does not obtain now in the relationship between the employer and the employé the establishment of the principle of common employment robs the employé of what he considers to be a very vital right, a right which we are seeking to establish in this Bill. Personally, I feel that the establishment of that right is being opposed on an entirely wrong assumption, namely, the assumption that the employer, whether man or woman, has the right to choose his or her employer. That is not the case. It may be difficult for right hon. and hon. Members on the other side of the House to appreciate the point, but at no time under present conditions is it possible for a man or a woman to choose the employer for whom they are prepared to work. They are invariably compelled by sheer necessity to accept employment with almost any employer, and in many ways they are entirely unconscious of whatever risks may be involved. The assumption is that they can choose the employer, and, further, that they should be cognisant of the risk entailed when they obtain the employment. That is an entirely wrong assumption. The man to whom I referred a few moments ago sought employment with an employer. He was a wood-cutting machinist. Machinery is always dangerous, even with the best of safeguards. He went into the shop on the appointed morning to start work, and there he was introduced to his mate; a mate was essential. As a result of previous experience, he was by no means persuaded in his own mind that the mate with whom he was to work this machinery was as competent as he should be. Had he said to the employer, "I refuse to work with this man," by statute law he would have been deprived of the possibility of obtaining unemployment pay—a most unfair position. Therefore, he had to take the risk. They were working with a spindle machine. His mate had to put the cutters in the spindle and give the word that everything was O.K. The cutter was fixed, the machine started to revolve, and out came the cutter right into his eye. That man was conscious of the risk he was taking. The employer should have accepted responsibility in that regard for having put with him a mate who was not fully efficient, and had this been the law of the land he could have proceeded against the employer—not an unreasonable thing to ask. It is to meet such cases as that that we are asking that we may be so equipped, as far as the law is concerned, that our men may be able to take action. Had action been taken in the court in that case, the employer's representative would have pleaded common employment.
Having followed the hon. Member's remarks with close atention, may I say that it does not appear to me that under this Bill the man would be any more protected than he is at present?
Under this Bill the employer would have been compelled to accept responsibility for the negligence of the man with whom this man was compelled to work. He had no redress in that regard in existing circumstances.
May I put this difficulty to the hon. Member? He has told us that the workman knew the risk and therefore accepted it. In the circumstances, I can- not see how he would have been covered even if the Bill had been law.
That is my point. Workmen are compelled to take these risks every day of their lives and they have no redress. This House has made it even more difficult for them. Had they refused the employment, there would have been no unemployment pay. You hamstring the workmen in every direction. The party opposite, with few exceptions, do their utmost to restrict the liability of the employers and, had it not been for this party, the Workmen's Compensation Act would not be what it is to-day. I believe, with few exceptions, they are not likely to get redress from that side of the House. They can get it only from this side—[Interruption.]—The enlightenment of public opinion by this party compelled the party opposite to bring it in.
In other words, it was brought in by our party.
You will go as far as you are forced to go, and no further. You will go no further than we are able to push you. We have pleaded with our utmost ability to-day for the acceptance of this principle. The Attorney-General has replied again in similar strain to the reply which was given on the last occasion. I am not in any way surprised that the Bill has been turned down by the Attorney-General. We realise that we shall have to push on and enlighten public opinion and rely more upon getting adequate representation in this House, and I hope that that time is not far hence.The hon. and learned Member for Argyllshire endeavoured to show the origin of the principle of common employment and went back to the period of slavery and servitude. Many of our people see the same principle involved at the present moment and they are desirous of acquiring the same status that all other citizens have in that regard—the right to sue an employer where an accident of the kind of which I have already spoken takes place. I do not know that there will be any good purpose to be served in arguing this matter any further, but we shall press on, and if and when the opportunity occurs, we shall reintroduce this Bill, recognising that each time we introduce it and a discussion takes place here the general public become more enlightened as to the invidious distinction that is drawn. In so far as they become enlightened in that regard, it will bring forward the day, when, I hope, we shall have an opportunity of amending the law and placing the Bill upon the Statute Book.
As I listened to hon. Members opposite making their observations with regard to this Bill, it occurred to me that they had only brought the Bill forward to-day for two reasons, one, that they thought that it was a really good Bill, and the other, that they thought that it was one out of which they would be able to obtain some propaganda. The hon. Member for West Willesden (Mr. Viant) has shown quite conclusively that it was brought for propaganda purposes. As a business man, if I may say so with humility, I believe that some beneficial alterations are possible in the Workmen's Compensation Acts and the Acts which deal with Common Law. It may be that it would be by means of a consolidation Act, or some Amendment which obviously would have to be brought forward by the Government of the day.If we look at the history of this Bill, we find that it was originally introduced in this House by a very distinguished lawyer, who is now a very distinguished judge, and that he put his arguments with regard to the Bill that was then before the House with very great force. The Bill was then sent up to Committee, where it was examined in detail and in all its varying aspects, and where, as hon. and right hon. Members know there was the opportunity of putting down Amendments to make the Bill a workable Measure, if possible. That Bill was turned down by the Committee because they found that they could not make it either a workable or a practical Measure. One would have then supposed that, if a similar Measure was to be introduced, the framers of the Bill would have taken the trouble so to have altered it, that at least it would have been made practicable. But instead, we find that the Bill in its entirety is introduced a Second time and brought before this House, discussed and voted against and turned down. To-day we have the spectacle of seeing the very same Measure brought forward for a third time, and the suggestion has been made that it should be sent up to a Committee similarly constituted to that which turned it down on a previous occasion. I have aways felt that when hon. Members have the good fortune to draw a lucky place in the ballot, it is a great achievement in their parliamentary life if it is possible for the Bill they select ultimately to be placed upon the Statute Book. If I am right, then I am amazed that out of all the Bills from which the hon. Members can select, they should have selected a Bill of this character instead of one which would have served a useful purpose, which was uncontentious and which would have received the support of all parties in the House. Three or four months ago one of my friends introduced a Bill, the Marriage Bill, which was supported by hon. Members in all parts of the House.
I think the hon. Member had better let us get on with this Bill.
I was asking why the hon. Member had introduced this particular Bill when he could have introduced a Measure which was not so contentious. We have listened to many arguments to-day. An hon. Member said to me that there would be no arguments at all unless so many different people held so many different views already about the same thing. It is quite obvious that on this Bill every hon. Member puts forward a different view. If it is not a practical Measure, what is the use of this House allowing it to go to Committee. The hon. Member who seconded the Motion said, quite properly, that if this was a major measure he would have preferred to see it brought in by the Government of the day. I asked him whether it was not a Bill of very far reaching effect.
The question was whether I thought the Bill was as far reaching in its effect as the Factory Bill, and I said, no.
If I misunderstood the hon. Member I apologise. I certainly understood him to say that all major Bills ought to be brought in by the Government of the day, and not by private Members. Then I asked him whether this Bill was not far reaching in its effect, and he was good enough to say that he did not think it was.
I did not say anything of the kind. I said that it was not as far reach- ing as the Factories Bill, and I would like the hon. Member also to remember that there are hon. Members from Wales who are waiting for the next Bill.
I recognise that I have no right to talk on this Bill, but apropos of the observation of the hon. Member, may I be allowed to develop my argument? I interrupted him and asked whether this particular Measure was not a far-reaching one. I submit that this Bill is of great importance, and that if it became an Act, it would have a very far-reaching effect.
On a point of Order. Is it in Order for the hon. Member endlessly to repeat the same phrase?
The repetition is getting very near the stage of being tedious.
On a point of Order. Is it right for the hon. Member to question whether this is repetition or not?
An hon. Member is always at liberty to put a point of Order to me.
If, unfortunately, I have repeated, ought I to be blamed—ought I not rather to be sympathised with?
Why did the hon. Member put the question to the seconder of the Motion?
A little while ago the hon. Member opposite told me that I was not making my point clear. I see that the right hon. Gentleman the Member for Carnarvon Boroughs (Mr. Lloyd George) is present. May I repeat something which he once said? He said that if you are addressing an audience and you do not make yourself quite clear, do not blame the audience but blame yourself, because you have not been lucid enough. I am endeavouring to be lucid enough, and I am blamed for repetition and for becoming tedious.
May I make a request to the hon. Member? Unfortunately I was very late in getting to the House. Will he be kind enough to explain the Clauses of the Bill to me?
I would like to know whether, if this Bill became law, all these cases would be heard in the county courts, or would some of them go to the High Court? [An HON. MEMBER: "What cases?"] The cases under this Bill. [An HON. MEMBER: "How do you know there will be any cases?"] If there are no cases, there is no need for the Bill, and if hon. Members are of the opinion that there will be no cases, obviously they should allow the Bill to go by default. At the present time, however, if a workman is injured by the carelessness of his fellow workmen, he obtains compensation under the Workmen's Compensation Act. I would like to refer to a case of pure foolhardiness where it is difficult to imagine that any compensation ought to have been paid. A case has been brought to my notice where a man was mending a roof. One of his mates came down to get some material for the purpose of making that repair, and he was told to take the pail of material up through the house and through the trapdoor to the roof. In the yard he found a ladder. The ladder was old and was not long enough to reach the roof, but he had the temerity to stand the ladder on the top of a tub and proceed to take the pail of material up the ladder to the roof.
And the roof fell in.
No, the top of the tub, which was rotten, gave way and he came down like Jack and Jill and injured himself so badly that he had to be taken to hospital. His injury was permanent and he did come within the category of workmen's compensation and received adequate compensation, but under this Bill the employer would have been liable for—
The employer had no right to have a defective ladder and a rotten tub there.
I might suggest that the employé had no right to have a defective brain, and apparently it is not an isolated case. The hon. Member who interrupted takes credit for having an extraordinary amount of intelligence—so much so that I have heard him described as extreme. It is lucky that he is not credited with any more intelligence or he would be described as eccentric. In conclusion, I urge that this is not a Bill which ought to have been brought in by a private Member. Its importance is such that it ought to have been brought in by the Government of the day, if at all. I feel convinced that the majority of Members will vote against it as an expression of their opinion that if Measures of this kind, involving such large principles, are to be introduced, the Government ought to make themselves responsible for such Measures. I hope the Bill will not receive a Second Reading.
These demonstrations are somewhat embarrassing even to one who is accustomed to that sort of thing, but I do not propose to detain the House for long. It has been a disappointment this afternoon that so few Members of the Opposition have taken part in a Debate which is concerned with a matter of great importance and a matter upon which they, and particularly the trade union Members, are acknowledged to be experts. Indeed in the last two Elections my own opponent, a trade union man, has always made a feature of the number of compensation cases in which he has assisted locally. I have always strongly supported him by saying that I quite agree with him and that I think they would do well to retain him to run their compensation cases while returning me to Westminster, and I am very, glad to say that that is what the electors have done.I followed the speech of the Mover of the Motion for the Second Reading with interest, and he gave us a good many figures which struck me, if I may say so without offence, as being largely irrelevant. It is quite obvious that what he wanted was more and better compensation at the expense of the employer, but, quite apart from figures, this Bill shows a desire to extend the Common Law liability of the employer and in fact to get back to where he was many years ago, and consequently any figures are irrelevant to the question now before the House. The hon. Member for West Willesden (Mr. Viant) said, I understood, that what a workman wanted were the rights that he would have if he were not a workman. The answer to that is that if this Bill were passed, the employer would find himself in exactly the same position as the hon. Member claims that the workman is in at the present moment. It would put the employer in a very unfair position vis-à-vis the workman, and we feel that it is not the business of this House merely to consider the interests of the workman. They are very important, no doubt, but we have to consider all classes of the community, and we consider that the employer's interests are just as important as those of the workman. We on this side of the House do not claim to represent any particular class. We claim to represent all classes, and when hon. Members opposite say that they in some way specially represent the working classes, I can only say that members like myself, with small majorities, who represent industrial seats would not be here if we did not command the support of at least 40 to 45 per cent. of the working class, and we have just as much right to claim to represent them as has any hon. Member opposite. This Bill has a fundamental defect, which is that it seeks to do away with an edifice which has been built up by Parliament over a long period of years. We have, for better or for worse, chosen to turn this question of workmen's compensation into one of social service, but I think that the time is long overdue for the Government to introduce a comprehensive Measure to put it on a form of insurance basis. We have it from the Attorney-General that the Government are not prepared to do that at the present time, but I think every hon. Member well realises that that must come
Division No. 91.]
|Adams, D. (Consett)||Gardner, B. W.||McGhee, H. G.|
|Adams, D. M. (Poplar, S.)||George, Rt. Hon. D. Lloyd (Carn'v'n)||Maclean, N.|
|Attention, W. M.||George, Major G. Lloyd (Pembroke)||MacMillan, M. (Western Isles)|
|Ammon, C. G,||George, Megan Lloyd (Anglesey)||Magnay, T.|
|Attlee, Rt. Hon. C. R.||Green, W. H. (Deptford)||Mainwaring, W. H.|
|Banfield, J. W.||Grenfell, D. R.||Mathers, G.|
|Barnes, A. J.||Griffith, F. Kingsley (M'ddl'sbro, W.)||Maxton, J.|
|Batey, J.||Griffiths, J. (Llanelly)||Messer, F.|
|Bellenger, F. J.||Groves, T. E.||Montague, F.|
|Benn, Rt. Hon. W. W.||Hall, G. H. (Aberdare)||Morrison, Rt. Hon. H. (Hackney, S.)|
|Benson, G.||Hall, J. H. (Whitechapel)||Muff, G.|
|Broad, F. A.||Hannah, I. C.||Naylor, T. E.|
|Brown, C. (Mansfield)||Hardie, G. D.||Owen, Major G.|
|Burke, W. A.||Hayday, A.||Paling, W.|
|Cape, T.||Henderson, A. (Kingswinford)||Parker, J.|
|Cassells, T.||Henderson, J. (Ardwick)||Parkinson, J. A.|
|Charleton, H. C.||Henderson, T. (Tradeston)||Pethick-Lawrence, F. W.|
|Chater, D.||Hills, A. (Pontefract)||Pritt, D. N.|
|Cluse, W. S.||Jagger, J.||Richards, R. (Wrexham)|
|Clynes, Rt. Hon. J. R.||John, W.||Rickards, G. W. (Skipton)|
|Davidson, J. J. (Maryhill)||Jones, A. C. (Shipley)||Ridley, G.|
|Davies, R. J. (Westhoughton)||Jones, Morgan (Caerphilly)||Riley, B.|
|Davies, S. O. (Merthyr)||Kelly, W. T.||Ritson, J.|
|Dobbie, W.||Kennedy, Rt. Hon. T.||Rowson, G.|
|Dunn, E. (Rother Valley)||Kirby, B. V.||Sanders, W. S.|
|Ede, J. C.||Lathan, G.||Seely, Sir H. M.|
|Evans, D. O. (Cardigan)||Lawson, J. J.||Sexton, T. M.|
|Evans, E. (Univ. of Wales)||Leach, W.||Shinwell, E.|
|Fletcher, Lt.-Comdr. R. T. H.||Lunn, W.||Short, A.|
|Frankel, D.||Macdonald, Capt. P. (Isle of Wight)||Simpson, F. B.|
|Gallacher, W.||McEntee, V. La T.||Sinclair, Rt. Hon. Sir A. (C'thn's)|
eventually, and indeed it is most desirable that it should come. For many years now we have been building up this system, and the proposal of this Bill is to wipe out all the work that has been done and to go back to where we were before. I do not think any hon. Member of this House would really consider that either the present situation is satisfactory or that this Bill would improve it to any great extent. The rights conferred on the workman by the Acts which we have passed since 1880 are very far-reaching and extensive, and to a great extent, by the passage of this Bill, those rights would be lost.
It is important also to remember that under the Acts as they stand to-day the working man can get compensation irrespective of whether an accident is due to his own negligence, his fellow worker's negligence, his employer's negligence, anybody else's negligence, or no negligence at all. There are a great many very valuable rights and privileges at present enjoyed, and they have been very little mentioned by hon. Members opposite to-day. I shall certainly oppose this Bill, and I feel sure that the House as a whole will do the same.
Question put, "That the word 'now' stand part of the Question."
The House divided: Ayes, 115; Noes, 143.
|Smith, Ben (Rotherhithe)||Tinker, J. J.||Williams, E. J. (Ogmore)|
|Smith, E. (Stoke)||Viant, S. P.||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Smith, Rt. Hon. H. B. Lees-(K'ly)||Walkden, A. G.||Wilson, C. H. (Attercliffe)|
|Sorensen, R. W.||Walker, J.||Windsor, W. (Hull, C.)|
|Strauss, G. R. (Lambeth, N.)||Watkins, F. C.||Woods, G. S. (Finsbury)|
|Taylor, R. J. (Morpeth)||Westwood, J.||Young, Sir R. (Newton)|
|Thorne, W.||Whiteley, W.|
|Thurtle, E.||Wilkinson, Ellen||TELLERS FOR THE AYES.—|
|Mr. Potts and Mr. Lee.|
|Allen, Lt.-Col. J. Sandeman (B'kn'hd)||Fox, Sir G. W. G.||Munro, P.|
|Amery, Rt. Hon. L. C. M. S.||Fremantle, Sir F. E.||Palmer, G. E. H.|
|Anderson, Sir A. Garrett (C. of Ldn.)||Furness, S. N.||Penny, Sir G.|
|Apsley, Lord||Ganzoni, Sir J.||Percy, Rt. Hon. Lord E.|
|Baldwin-Webb, Col. J.||Gilmour, Lt.-Col. Rt. Hon. Sir J.||Petherick, M.|
|Balfour, G. (Hampstead)||Gluckstein, L. H.||Ponsonby, Col. C. E.|
|Balfour, Capt. H. H. (Isle of Thanet)||Gower, Sir R. V.||Pownall, Lt.-Col. Sir Assheton|
|Balniel, Lord||Graham, Captain A. C. (Wirral)||Raikes, H. V. A. M.|
|Barclay-Harvey, Sir C. M.||Grant-Ferris, R.||Rickards, G. W. (Skipton)|
|Baxter, A. Beverley||Granville, E. L.||Ropner, Colonel L.|
|Beaumont, M. W. (Aylesbury)||Gretton, Col. Rt. Hon. J.||Russell, A. West (Tynemouth)|
|Beaumont, Hon. R. E. B. (Portsm'h)||Grimston, R. V.||Samuel, M. R. A.|
|Bennett, Sir E. N.||Guest, Hon. I. (Brecon and Radnor)||Sandeman, Sir N. S.|
|Bossom, A. C.||Hamilton, Sir G. C.||Sanderson, Sir F. B.|
|Bowater, Col. Sir T. Vansittart||Hannon, Sir P. J. H.||Sandys, E. D.|
|Boyce, H. Leslie||Haslam, H. C. (Horncastle)||Savery, Sir Servington|
|Brass, Sir W.||Heneage, Lieut.-Colonel A. P||Selley, H. R.|
|Brockiebank, C. E. R.||Hepburn, P. G. T. Buchan-||Shaw, Major P. S. (Wavertree)|
|Brown, Brig.-Gen. H. C. (Newbury)||Holmes, J. S.||Sinclair, Col. T. (Queen's U. B'lf'st)|
|Browne, A. C. (Belfast, W.)||Horne, Rt. Hon. Sir R. S.||Smiles, Lieut.-Colonel Sir W. D.|
|Bull, B. B.||Howitt, Dr. A. B.||Smith, Bracewell (Dulwich)|
|Burton, Col. H. W.||Hudson, Capt. A. U. M. (Hack., N.)||Somervell, Sir D. B. (Crewe)|
|Campbell, Sir E. T.||Keeling, E. H.||Somerville, A. A. (Windsor)|
|Castlereagh, Viscount||Keyes, Admiral of tha Fleet Sir R.||Sauthby, Commander A. R. J.|
|Cayzer, Sir C. W. (City of Chester)||Kimball, L.||Spears, Brigadier-General E. L.|
|Channon, H.||Lambert, Rt. Hon. G.||Stanley, Rt. Hon. Lord (Fylde)|
|Chorlton, A. E. L.||Law, Sir A. J. (High Peak)||Sterey, S.|
|Clarke, F. E. (Dartford)||Leech, Dr. J. W.||Strauss, E. A. (Southwark, N.)|
|Colville, Lt.-Col. Rt. Hon. D. J.||Levy, T.||Tate, Mavis C.|
|Cooke, J. D. (Hammersmith, S.)||Llewellin, Lieut.-Col. J. J.||Taylor, Vice-Adm. E. A. (Padd., S.)|
|Courthope, Col. Sir G. L.||Lloyd G. W.||Touche, G. C.|
|Croft, Brig.-Gen. Sir H. Page||MaoAndrew, Colonel Sir C. G.||Tufnell, Lieut.-Commander R. L.|
|Crooke, J. S.||McCorquodale, M. S.||Wallace, Capt. Rt. Hon. Euan|
|Croom-Johnson, R. P.||Macdonald, Capt. P. (Isle of Wight)||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Davies, Major Sir G. F. (Yeovil)||Macnamara, Capt. J. R. J.||Wardlaw-Milne, Sir J. S.|
|Dawson, Sir P.||Macquisten, F. A.||Warrender, Sir V.|
|Denville Alfred||Maitland, A.||Wayland, Sir W. A|
|Doland, G. F.||Margesson, Capt. Rt. Hon H. D. R.||Wedderburn, H. J. S.|
|Drewe, C.||Maxwell, Hon. S. A.||Williams, C. (Torquay)|
|Duckworth, G. A. V. (Salop)||Mayhew, Lt.-Col. J.||Williams, H. G. (Croydon, S.)|
|Dugdale, Major T. L.||Mellor, Sir R. J. (Mitcham)||Windsor-Clive, Lieut.-Colonel G.|
|Duggan, H. J.||Mellor, Sir J. S. P. (Tamworth)||Winterton, Rt. Hon. Earl|
|Duncan, J. A. L.||Mills, Sir F. (Leyton, E.)||Wise, A. R.|
|Eastwood, J. F.||Mills, Major J. D. (New Forest)||Wragg, H.|
|Ellis, Sir G.||Mitcheson, Sir G. G.||Young, A. S. L. (Partick)|
|Elliston, Capt. G. S.||Moore, Lieut.-Col. T. C. R.|
|Elmley, Viscount||Moreing, A. C.||TELLERS FOR THE NOES.—|
|Emmott, C. E. G. C.||Morgan, R. H.||Mr. Maxwell Fyfe and Commander Bower.|
|Evans, Capt. A. (Cardiff, S.)||Morrison, Rt. Hon. W. S. (Cirencester)|
Main Question, as amended, put and agreed to.
Second Reading put off for six months.
Administration Of Justice (Wales) Bill
Order for Second Reading read.
I beg to move, "That the Bill be now read a Second time."This is a Bill which is designed to establish beyond doubt two rights to which Welsh people claim to be entitled and which no sensible man will deny them. The first right is the right of a Welsh-speaking person to give his evidence in his own language in a court of justice in Wales and Monmouthshire. The only surprising thing about this claim is that it is necessary to make it. The necessity arises out of old Acts of Parliament, to which I should like to refer at some length if I had the time, for it is very difficult to compress in a few minutes the history of four centuries. I do not think the Attorney-General will dispute the fact that doubts do exist as to the elementary right of a Welshman to give evidence in his own language in 1.he courts of justice in Wales and Monmouthshire, and it is in order to remove all doubt that I move the Second reading of this Bill. I shall not go into the details of it, but I should like to say that it is not put forward from a purely academic point of view, because a very practical measure of importance attaches 10 it. If a monoglot Welshman goes into a court of justice an interpreter will be provided for him at once. The trouble is not with the monoglot Welshman, but with those other Welshmen, and there are hundreds of thousands of them, who cannot claim to be monoglot Welshmen, but who do think in Welsh and can better appreciate the questions put to them if they are in the Welsh language, and can better express themselves in their native tongue. This is not a technical or an academic difficulty, but a difficulty which arises in practically every court in Wales every day throughout the year. What is proposed in this Bill is that if a Welshman can give his evidence better in his native tongue he shall be allowed to do so. I am sure every hon. Member will agree that in any case before a court the capacity of the parties to it to express themselves properly is a matter of the most vital concern, not only to the parties to the litigation, but to the public, because of the desirability of everybody understanding that in this country there is complete impartiality on the part of the judges and that there is also complete fairness in the justice which they seek to dispense. The second Clause of the Bill is concerned with a rather different question. One example of it arose recently when the trial of three men of education was removed from Wales to the Central Criminal Court. I do not want to say anything about that trial. The decision to remove it to London was a decision of the Divisional Court, and I have no right to criticise it, but it has given the greatest dissatisfaction in Wales. Clause 2 of my Bill is designed to establish, again beyond doubt, what is one of the elementary and essential principles of British justice, that an accused person shall be tried by his peers. It is not often that I go to a dictionary, except to help me to solve cross-word puzzles, but I had to consult the dictionary this morning, and I found out that a peer is a person of equal character, quality and ability, and I am not ashamed to say that so far as a Welshman is concerned the only peer must be another Welshman. That is all I have to say about this Bill. I should have liked to say more, but the time is not available. All I will add in conclusion is that the Welsh people are deeply conscious of their own distinctive nationality and are proud of it. They feel that existing legislation casts a slur upon their nationhood and they appeal to the British Parliament to remove that reproach.
I beg to second the Motion.I should have liked to develop the arguments in favour of this Bill, but I do not intend to do so, and would point out only one thing in regard to the first Clause. I know of no legislation on the Statute Book aimed at any language, except the Statute of Henry VIII which definitely denies to the Welshman the use of his own language in the courts of this country. That Act, which is aimed at the Welsh people and their language, remains upon the Statute Book. No reasonable man would suggest such legislation to-day or would wish it to remain upon the Statute Book. There has been some doubt, by reason of a Section in the Act of Henry VIII, whether in the administration of the courts, that Act has been repealed, but from what has happened it is obvious that it has not been repealed. The only question is to the extent to which we are forbidden to use our language in the courts in Wales. My hon. Friend the Member for the Welsh University (Mr. E. Evans) has spoken of the case of the monoglot Welshman. There is not a judge on the bench who would not allow him to give his evidence through an interpreter, but that is a matter of courtesy and not of right. Under the common law of England, a Chinese, a German, a Frenchman, or any other foreigner is entitled to give his evidence in his own language, and that is as it should be, in order that a just decision may be reached upon the issues raised, but the particular Statute denies it to our people, and for that reason we desire to have this injustice removed and this Clause placed upon the Statute Book. With regard to the second Clause I would like to say only that prior to the Act of 1856 the old common law was that if there was a danger that justice would not be done in any assize town there was a right to remove the case from that assize town to the adjacent county, and nowhere else. Then came the Statute of Victoria, which gave the right to remove a case to the Old Bailey. The Bill would enable us to ask for a trial, after a case had been removed from one county, oniy in another county in Wales. If that be going too far, I should be willing to go back to the principle of the old common law under which application was made to the judge who would decide, upon the merits of the case, its proper place of trial. The law as it stands is an insult to the Welsh people, when a case can be taken away from their hands and brought to London to be heard by people who do not understand the language that was spoken in this country at least 2,000 years ago.
I have not time to cover fully the whole ground of the arguments which have been used on this Bill but I must say at the outset that I disagree with the hon. Member for the Welsh University (Mr. E. Evans) as to whether doubt exists to-day of the right of Welsh-speaking persons to give evidence in Welsh. There is no shadow of doubt of any kind, in my humble opinion. I agree that the Section of the Statute of Henry VIII is still on the Statute Book. Under that Section it is the actual proceedings which are ordered to take place, I will not say in English but in the language we speak in this House, in the courts of Wales, but it does not in any way interfere with the right of a person to ask for an interpreter in giving his evidence. There is an equally undoubted right and in criminal cases a definite obligation on the court to see that evidence which may not be fully understood should be interpreted.I regard that as being essential to the proper administration of justice. The rule is, as I understand the rule, that any person is entitled to have an interpreter if the language in which he naturally thinks and expresses himself is other than English. That applies, of course, to the monoglot Welshman. If Welshmen can show that English is not the language in which they can naturally express themselves, and if in an ordinary case there is any impediment placed in the way of not understanding questions in English or answering them, then the rule is that such persons are entitled to have an interpreter. Therefore, I suggest, without any hostility to the idea at the back of this Clause, that the rule on the subject is quite clear. I regard it as vital not only to Welsh-speaking people in their own courts but Welsh-speaking people if they have the misfortune to come into courts in other parts of the country, that if they do not naturally speak the language of that court they should have the right to an interpreter, and if they require it they should be able to have the questions interpreted to them and to give their evidence in their own natural language. I do, therefore, think that it would be unfortunate to place on the Statute Book a section which declares that Welsh-speaking persons in Wales have a right which in my opinion they have already.
I should like to ask one question. This is a very important matter. Supposing a Welshman understands English and can speak it, but he prefers to give his evidence in his own language. Would the judge be entitled in that case to say: "You understand English and speak it well; therefore I cannot allow you to speak in Welsh"?
I cannot say exactly what the judge would say in a particular case, but the rule, if applied, and it is a proper rule, is that if a man can satisfy the judge that the language in which he naturally thinks and expresses himself is not English, then he should be entitled to an interpreter. If he can naturally express himself in English, I think it is reasonable that he should do so. I agree with the suggestion of my hon. and learned Friend that this section goes too far. There is a case summarised in the old books of an application by the defence for removal of a trial in which both sides agreed that it was desirable to have the trial outside Wales. One can well imagine a case which might be directed against a great national figure, which would arouse much feeling over the whole of Wales. I agree with my hon. and learned Friend in that I think the discretion should be more clearly at large in these applications than it is to-day. Whether the application is by the prosecution or the defence there should be discretion in regard to adjoining counties and in regard to transfer to London, if it is thought necessary. I am making inquiries on that matter, and I do not think it will need legislation to deal with it. It is advisable to make the point quite clear. In regard to the first proposal it is, as I have said, undesirable, and in regard to the second one, it is unnecessary.
Several hon. Members rose—
rose in his place, and claimed to move, "That the Question be now put," but MR. SPEAKER withheld his assent, and declined then to put that Question.
It being Four of the Clock, the Debate stood adjourned.
The remaining Orders were read, and postponed.
Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.
Adjourned at One minute after Four o'Clock until Monday next, 1st March.