§ Order for Second Reading read.
§ 11.12 a.m.
§ Mr. Lee
I beg to move, "That the Bill be now read a Second time."
You have heard that phrase, Mr. Speaker, or a very similar one, with regard to this Bill on several occasions. By this time, the Bill ought to know its way to the Statute Book without being introduced. But the fact that it is a hardy annual does not deter us from attempting to remove a blot from the common law. As long as that blot remains, we shall still try to remove it, and to place on the Statute Book the phrase, which is not there at present, "common employment." This is one of those case-made laws which have never had the sanction of this House. It was invented in 1837; it did not come down from "the time of the serfs and slaves," as an hon. Gentleman said in an earlier debate. Since 1837, it has been a defence for the employer, if personal injuries were caused by the negligence of the servant, that that servant was at the time when such injuries were caused in common employment; and, therefore, there was no remedy. We say that the workman ought not to be in a worse position than a stranger would be if he met with a similar accident. Without attempting to define what the law is, because I suppose my definition would not be worth much in this House, I will read two definitions which have been supplied to me. The first is a definition by Lord Cranworth: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.I will give the second one, that of Mr. Chief Justice Shaw of America, as I understand that this doctrine operates only in England and America. Chief Justice Shaw says:When several persons are employed in the conduct of one common enterprise or undertaking and the safety of each depends much upon the care and skill with which each other shall perform his appropriate duty, 2274 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 proper precautions.I have been trying to find somewhere a defender of the principle of common employment and I have been unable to find one. In other Debates in this House I cannot find that anybody dealt with the merits of the case. They say the usual things that will happen if it is abolished, but I have not found anyone yet who has defined it. The Attorney-General said that he was not called upon to define it, and he quoted Lord Justice Nevill, I think, because he believed in the opinion, or there would have been no cause for quoting it.The doctrine of common employment appears to be a purely arbitrary and artificial rule founded upon neither principle, nor, prior to 1837, authority—a mere excrescence upon the common law, devised, apparently, for the purpose of exempting a particular class from an otherwise universal liability.Another lawyer in this House expressed an opinion as far back as 1927 when workmen's compensation was introduced. The late Lord Oxford, then Mr. Asquith, said:We have always said that the great grievance and the first grievance of the working classes of this country in this respect was to be found in the existence of the doctrine of common employment. The doctrine was invented by the Bench and it established a fictitious, and, I venture to say, fantastic distinction between the position of workmen and third persons as regards the liability of the employer. The condition of the Law, not founded upon ancient precedent, never sanctioned by the legislature, which has been a great, and, so we think, legitimate grievance to the working classes of this country.Mr. Augustine Birrell, in one of his characteristic speeches in this House, said:There was the doctrine of common employment, one time the shibboleth of party, and no candidate could appear before an industrial constituency without being asked whether he would vote for its abolition. The doctrine was only invented in 1837. Lord Abinger planted it, Baron Alderson watered it and the Devil gave it increase.Mr. E. H. Pickersgill said with regard to common employment:Most lawyers admitted that it was a bad law, and most lawyers contended that it was bad policy. He had been under the impression that there was general agreement in that house with regard to the abolishing of the doctrine of common employment.2275 Mr. Asquith said during the same debate:No one was so poor as to do it reverence.I do not know what attitude the objectors to this Bill are going to adopt this morning. They have not given any reasons for objecting to the Bill. Whether they will take the same line as before I do not know, but I am going to suppose that they are. Having got a definition of the doctrine of common employment and some opinions with regard to it, I will give an illustration of how it works. During the last debates many hypothetical cases were given of the way it would work, but up to now we have not had a case brought before the House that has actually happened. Last year, when this Bill was before the House, I mentioned a case which had gone through the county court, and since that time that case has been to the Court of Appeal. The case is one where a party of visitors were going from a Liverpool café to Liverpool Cathedral. Two omnibus drivers were taking the party, and somewhere on the journey the man who was driving the first omnibus, for some reason or other, stopped his omnibus. The second driver come along, and, fearing that there must be something wrong, drew up his omnibus with the idea of helping should there be anything wrong. Not noticing that the first driver was standing by the side of his omnibus he drove his own omnibus alongside and crushed the first driver, fatally injuring him. The case went to the county court, and the county court judge, taking everything into consideration, the circumstances of the case and of the family, and what he considered to be the law, I suppose, awarded the widow £1,579. They were not fantastic damages.
§ Mr. Lee
The smaller figure will suit my case. Nobody will say that county court judges are prejudiced either in favour of employers or workmen, or that the judge was prejudiced in favour of 2276 the widow in this case. He awarded the £1,579, which, in his opinion, was a fair award. The company went to the Court of Appeal, which held that common employment was present in this case, and the appeal was allowed, and costs awarded against the widow. Having taken the case before the common law in that way, she can, I know, fall back upon compensation, but that would simply mean that all the costs in previous actions could be deducted from her compensation. In this case, I believe—perhaps my hon. Friend can put me right—unless some strong trade union was behind her, this woman would find herself out of pocket altogether, because her compensation would certainly not meet the costs. That is not a hypothetical case, but a case right up to date. Wherever that applies, we say that, surely, the workman ought at least to have the same rights as any stranger who happens to meet with an accident in a similar way. If these two omnibuses had belonged to separate companies, I take it that the widow would have got the amount mentioned in the Order. Because they happen to be workmen under the same employer, they should not have the same rights as a stranger seems to be altogether strange.
Why should there be this differentiation between the workman and the stranger? We are told that it has been part of the common law for 100 years and that we ought not to disturb it. That is no reason or justification at all. Many things have happened since 1837, and I could quite well imagine that in 1837 there might have been some justification for this question of common employment. In those days there were not large masses of men working under one company such as we have to-day. They were small employers, and the employés of one company, if it were a small company, would know each other, and would know each other's capabilities and would be prepared to work together. The masses of men employed in our engineering shops, upon railways and in coal mines have to work constantly with men they do not know, and of whose capabilities they are not aware in any shape or form. We say that at least the workman ought to be put in the same position as the stranger would be in similar circumstances.
The first reason why I bring this Bill forward is one that, perhaps, will not 2277 have much weight in this House. I know that sentiment does not carry us far when we are talking about law. My reason is psychological. As long as that Act remains upon the Statute Book whether or not it means anything in money to the men we shall have a greivance about which the men will always be sore. It may be said that it is only a question of sentiment, and does not matter a great deal, but the world would be a poor place if there were no sentiment in it. For this psychological reason, therefore, I suggest that if we could remove this grievance we should go a long way towards easing the position.
I have argued that a workman affected by this doctrine of common employment ought to be put in the position and to have the same rights that would be given to a stranger in similar circumstances. I should like now to deal with another point to which sufficient attention has not been drawn. I believe that employers and workmen would be more careful if the doctrine of common employment no longer existed. Hon Members may ask why. My reply is that if the workman knew that by his own negligence he removed any chance of getting redress under the common law and had to be content with the Workmen's Compensation Act, he would be much more likely to be careful about his conduct, and not so likely to be negligent. I do not mind whether it is in the factory, the engineering shop or the mine, if every workman had to abide strictly by the letter and the spirit of the existing Acts of Parliament, we should have to pay a great deal more for coal and other things. There is still room in engineering shops and in our factories, despite the recent factory laws, and there is still room in the mines, in spite of the Acts of Parliament dealing with mines, for more care being exercised by the employers and those who superintend and manage on their behalf, just as there is more room for care being exercised by the workmen. I believe that if the doctrine of common employment did not exist, both the employers and employés would be more careful.
I have had the pleasure of receiving documents from the Shipowners' Parliamentary Committee and the National Federation of Employers' Associations pointing out their objections to the Bill. Their chief objection is that it will lay 2278 an unfair burden upon the employer. That seems to be the burden of their cry. I have been enjoying myself in the Library during the last two or three nights, reading an account of the introduction of the Workmen's Compensation Act, 1897, and the Committee stages, together with the Debates that took place on a similar Bill to this when it was introduced. The same cry has been used on every occasion, and in exactly the same way. I suppose my attention will be called to the fact that when the Bill was introduced in 1934 it passed through this House without any Division and without a voice being raised against it, except the very mild voice of the Attorney-General. No vote was recorded against it. I shall, however, be told that it was turned down by the Committee, because of serious objections to the Bill.
The hon. and gallant Member for Barkston Ash (Colonel Ropner) has drawn my attention to a Resolution that was passed by that Committee. The Resolution was moved by Sir Walter Greaves-Lord, who was responsible for the Bill. When the Committee opened, one of the Members at once moved the Adjournment so that the Attorney-General could make a statement. He said that the Government were not prepared to give facilities for the passing of the Bill. The Committee then proceeded to discuss an Amendment to insert the appointed day when the Act should come into operation, instead of the date mentioned in the Bill. A pretty wide discussion followed. The Chairman allowed the Committee to stray from the point raised. Then Sir Walter Greaves-Lord said that he had not seen any of the Amendments until that morning. That was not the fault of those who had put down the Amendments, but because, for some reason or other, Sir Walter Greaves-Lord had not been at the House for several days, had not seen the Amendments, and, therefore, he was not prepared to deal with them. After a long discussion he said that he was not prepared to g0 on with the Bill and asked leave to withdraw it. He moved:That in view of the lack of facilities for the further stages of the Bill, the Committee decide not to proceed further with it.He was told by the Chairman that something more than that would have to be said. Thereupon, Sir Walter Greaves-Lord drafted the following Resolution: 2279That, in view of the grave questions raised by the Bill, the Committee have decided not to proceed further with the consideration thereof.The main reason for the withdrawal of the Bill was because the Government had refused to give facilities for it, and, therefore, Sir Walter Greaves-Lord said he did not want to waste the time of the Committee and the House if there were no chance of the Bill becoming law.
§ Colonel Ropner
The first Resolution proposed by Sir Walter, now Mr. Justice, Greaves-Lord, was not accepted by the Committee. It was for that reason that he had to propose the second Resolution.
§ Mr. Lee
It was not accepted because the Chairman said that the Committee would have to make a Special Report to the House why they were not proceeding with the Bill. I will read what took place. Sir Walter Greaves-Lord said:The next Motion which is necessary to complete the procedure is:'That, in view of the lack of facilities for the further stages of the Bill, the Committee decide not to proceed further with it.'I am advised that that is the correct form. The Chairman: We must give a reason." [OFFICIAL REPORT (Standing Committee B) 1st May, 1934, Cols. 1207–8.]Then follows the second Resolution in the form of a Draft Special Report, which I have quoted. The first reason which was given in the first Resolution was advanced by Sir Walter Greaves-Lord, and the second reason which was given in the second Resolution was drafted at the request of the Chairman.
§ Mr. Lee
It is a matter of procedure. I agree that the first resolution was not sufficient for a Report to the House. Sir Walter Greaves-Lord said something else. The hon. and gallant Member talks about this being an unfair burden upon employers. This is what Sir Walter Greaves-Lord said:This is one thing which some of the employers' associations in this country have carried out ad nauseam whenever a Bill has been brought forward of a remedial character. Instead of bringing arguments against the principle of the Bull itself, instead of showing that there is any real injustice in the Bill itself, instead of going into the merits of it at all, there has been far too big a tendency to get up and say, 'This is creating 2280 a burden on industry; therefore, you must not pass it.' Whether it creates a burden on industry or not cannot be ascertained until there has been a real and true examination and discussion of the circumstances and facts. To put that sort of argument forward without any real discussion on the merits of the case sheds at least suspicious upon argument itself, and to create an atmosphere of suspicion in that way is certainly, in my humble opinion, not to the advantage of the employers of this country, nor to the advantage of industry."—[OFFICIAL REPORT (Standing Committee B), 1st May, 1934, col. 1199.]I commend those remarks to the attention of the hon. and gallant Member. The Attorney-General told us at that time that a new principle had come into workmen's compensation and that a workman had the choice of coming under the 1927 Act when he would get compensation in any case, negligence or no negligence, or whether he would come under the Employers' Liability Act.
It is true that the Act of 1897 did break into the doctrine of common employment somewhat, but no lawyer will say that more than six or seven cases have ever come under that Act in which justice has been done to the workman. The Act of 1897 has been an absolute failure as far as the working man is concerned. If you prove negligence it gives the workman three years' estimated wages, whereas at common law he can get full wages during the time he is totally incapacitated, medical expenses and such payment for suffering and pain as the court may think fit to give. We say a workman should be in the same position. I notice that with regard to the 1927 Act it was said that there was an agreement that the question of common employment was finally settled by it. This House can never make a final settlement about anything. It is an opportunist House and has to frame its Bills according to the circumstances of the time, and when circumstances change, then Acts of Parliament have to change. Sometimes it is a long time before any change is made. We say that the Workmen's Compensation Act does not put a workman into the position he should be in. It treats a workman as though he were half responsible for the accident; he can get only half wages. There is no payment for medical attendance or for suffering. A man may lose an arm, but unless his wages are less in consequence, there is no compensation for him. He may have a great deal of suffering but there is no compensation.
2281 I am now dealing with the case of a lad who lost his right arm, but he managed without the help of his employer to get other employment which gives him the same wages that he had before. No loss of wages—no compensation, at least up to the present. I admit that the Act of 1897 was a great improvement, and I admit also that the alterations which have been made since have done something, but the Act is still a long way short of doing justice to the ordinary working man. One of the alterations made was on the initiative of Sir Walter Greaves-Lord, and it was to the effect that where a man met with an accident and he was only partially incapacitated, unless he could find work he should be deemed to be totally incapacitated. Other lawyers agreed that the Amendment put forward by Sir Walter Greaves-Lord met the intention of the House; but what are the facts? Judges say that it is not worth the paper on which it is written, and they do not take any notice of it. Directly this Amendment was agreed to I took two cases to the courts. In the first I got a verdict, but in the second the court said, "No, it does not alter anything; the man has not got a job, not because he is incapacitated, but because the state of the labour market will not allow it." I say that workmen are entitled to have this grievance removed. Surely an employer should do more for his workman than what he is compelled to do for a stranger. I do not want the consideration of this case to be affected by the fact that the Bill has been introduced from this side. I want the House to consider the case on its merits and discuss the Bill on its merits. But until we get this matter settled we shall continue to come to the House and urge its removal.
§ 11.41 a.m.
§ Mr. Ridley
I beg to second the Motion.
It would be impertinent on my part to congratulate the hon. Member for North-East Derbyshire (Mr. Lee) on his speech, but I thank him for it nevertheless, and I think the House would benefit if the hon. Member took a rather more frequent part in our debates. I support the Bill because a careful examination of the existing situation convinces me of its complete justice. I acknowledge that my investigations are those of a layman, but in a matter of this kind the opinion of a layman is not only an opinion of 2282 substance, but very often an opinion of some importance. During these debates I listen with respect, pleasure and profit to speeches made by hon. and learned Members, and without saying anything disrespectful about them, I think there is sometimes to be detected on the part of members of the legal profession an inclination to believe that the field of law is their own private property. I submit that in this case the common law should not only satisfy the niceties of legal language, but should satisfy the common problems of common people in a common way. To the extent to which common law does not provide that common satisfaction, but often offends against common needs, it should be rectified by this House by Bills such as that which is being considered to-day. I remember a man who was at one time a Member of this House saying in regard to the Webbs' book on history, "We make history. They write it, and then think they have made it." In a sense lawyers are inclined to take the same view.
The case for the doctrine of common employment rests upon an altogether false assumption. It rests on the assumption that entering into employment and taking all the associated risks, an employé is able to understand what the associated risks are. As my hon. Friend has said, that may have been the case in 1837, but it cannot possibly be the case in 1938. No railway engine-driver taking a train from St. Pancras to Carlisle can have any knowledge at all of the capacities or the incapacities of every signal man and railway shunter. The circumstances of employment and its constantly changing character demonstrate clearly the false assumption on which that doctrine rests. I have been specially interested, as I think the Attorney-General will be, in an opinion expressed by Lord Wright in the case of Wilson and the Clyde Coal Company versus English in the House of Lords. Lord Wright referred to:the established but illogical doctrine of common employment.He went on to say:I have chosen these few examples to show that the doctrine of common employment which was hinted at in connection with a butcher's cart and has roamed in its application to colliers, seamen, railwaymen, apprentices, chorus girls, and indeed every sphere of activity, has always distinguished between the employer's duty to the employé and the fellow servant's duty to the employé.2283The rule is explained on the ground that the employé by his contract of employment agrees with his employer to assume the risk of his fellow servant's negligence. The principle is stated, with little regard to reality or to modern ideas of economic or industrial conditions, to be that this particular risk is included in the agreed remuneration. The result is stated rather as a dogma to flow logically from the relation of master and servant. Notwithstanding repeated expressions of disapproval, the doctrine has survived largely because of statutory remedies given to employés to minimise what to modem ideas appears to be its obvious injustice.Therefore, Lord Wright's view clearly is that the doctrine of common employment is an obvious injustice, and that the obvious injustice has in a slender fashion been recognised from time to time by the House, and has been minimised in the process of recognition. The very use of the word "minimise" confirms the view which I derive from Lord Wright's pronouncement that the whole doctrine of common employment is an obvious injustice. I suggest, with all respect to hon. and learned Members, who will, I hope, be in agreement with me, that the doctrine of common employment not only is not good law, but offends all other law. It is in conflict with the whole theory that runs through English law regarding vicarious responsibility and the delegation of responsibility.
If I send my shirt to a laundry and it comes back minus the tail, my claim is against the laundry company, and not against the operator, even if I can discover him or her. If a brewer's drayman leaves a trapdoor open on the pavement, and I, quite soberly, fall into the hole, my action is against his employer. In the case of a railway accident, again, no matter what negligence may be discovered on the part of the railway employé, the claim for damages is against the railway company. Therefore, it seems to me that the question resolves itself in this fashion, that an employer having two employés is responsible for any acts of negligence on the part of either of them, except as they affect each other. He is responsible for any acts of negligence as they affect a third person, but not as they affect either of his two employés. I suggest that it is unfair that a widow or an injured person should be denied the right of a claim under the common law for what seems to be a purely fortuitous circumstance. I ask 2284 the House to bear with me while I postulate four hypothetical cases. I do this because what impresses me beyond anything else in connection with this matter, is, I repeat, that the widow in the case of a fatal accident to her husband is denied a claim owing to what seems to be a purely fortuitous circumstance.
Let me, first, assume that in the course of the erection of a large block of flats, on the lower scaffolding there is a bricklayer and on the higher scaffolding a plasterer working with a sharply-pointed instrument, and that accidentally he drops it, and it embeds itself in the scalp of the bricklayer working on the lower scaffolding. If both the workmen are in the service of the same employer, the bricklayer is denied a claim under the common law because of the doctrine of common employment. It may happen, however, that they are not in common employment and that the plasterer is employed by a different firm altogether. In that case, therefore, for a purely fortuitous reason, the widow is either condemned to penury or is assured modest comfort. Secondly, if a bricklayer's labourer is sent by his foreman to the yard to fetch an implement that is required, and in crossing the road is struck by a lorry containing bricks which is driven by a driver in the service of the same employer, and if the bricklayer's labourer is killed, his widow is denied a claim under the common law because of the doctrine of common employment; but if it happens to be the case that the lorry containing the bricks is the property of the employer's brother and is being driven by a driver in the service of the employer's brother, the common law claim is successful. This state of affairs seems to me to be unreasonable almost to the point of being outrageous. The Widow's penury or modest comfort is allowed to depend on whether her husband happens to step off the pavement at 10.59 or 10.59¼, and whether he is injured by this lorry or by that lorry.
Thirdly, if a train crashes into the buffers, and the engine driver is killed, because the wrong points have been pulled, and if he and the signalman responsible are in the service of the same railway company, the claim under common law is denied because of the doctrine of common employment, but it sometimes happens that one railway company has what are called "running powers" over 2285 the lines of another railway company, and if the circumstances are that a Great Western Railway driver is driving an engine of the London Midland and Scottish Railway Company, in that event his case will succeed under the common law. The fourth case is a little questionable, but it shows how shadowy the line has become in regard to the doctrine of common employment. Let us assume that a pit-cage is descending, that the machinery breaks, that the pit-cage falls with a terrific crash to the bottom of the shaft, and that three men are in the cage, two of them being colliers and one a checkweighman, and that all three are killed. The colliers are denied a claim under the common law because of the doctrine of common employment, but the checkweighman can succeed because he is not in common employment with either of the other two.
§ Mr. Ridley
I see that the Minister of Agriculture shakes his head. He will remember that I said that this is a questionable case, but it emphasises the illogicality of the doctrine, on which I know that all sorts of opinion have been expressed. If those three men were in the pit-cage, the claims of two of them would be likely to fail, and the claim of the third, whether he were a checkweighman or an engineer going down the pit for purposes of making a special inspection, would be bound to succeed, no matter how questionable the other cases might be. I ask the House to realise that those purely fortuitous circumstances which determine whether the widow of an injured man shall be in poverty or have modest comfort conflict with common opinion, with common needs and with what ought to be the common satisfaction of common rights.
Finally, the need for this Bill is quickened in a very serious way by the tragic inadequacies to which the workman is reduced because he is denied the operation of the common law. I have had brought to my notice a case in my own constituency—and cases of this sort, and even worse ones, can be multiplied by my hon. Friends—of a man who will never again move on his legs of his own volition. He was a miner, and there was a heavy fall of coal which did not quite break his back, but very seriously 2286 injured it. He has a wife and three children, and his compensation under the Workmen's Compensation Acts is 28s. 2d. a week. The House cannot be satisfied with a condition of affairs which means that for the loss of both arms the maximum compensation is 30s.; for the loss of both legs 30s.; or for the loss of both arms and legs, still the same completely inadequate sum. Nor can it be satisfied with a situation in which, in the event of a fatal accident, a woman who is left a widow with three children receives a lump sum of £600 in compensation. On that, she will get a return of only 3 per cent. or 8s. a week, with which to feed, clothe and shelter herself and three children. The existing situation reminds one of Horace Walpole's saying that life is a comedy for those who think and a tragedy for those who feel. If one were not influenced by the human considerations involved, there might be room for amusement, but, as it is, there is no room for other than tragic reflections. I plead with the House to accept this Bill and remove a serious legal anomaly, which creates great hardship, considerable poverty and a deep sense of unfairness.
§ 11.57 a.m.
§ Colonel Ropner
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."
This is the fourth time within a period of four years that a Bill of this kind has been presented to the House of Commons. In 1934, as the hon. Member for North East Derbyshire (Mr. Lee) reminded us, a similar Bill received a Second Reading, almost by mistake, but was withdrawn in Committee after having been only one day upstairs. In 1936 I had the privilege of seconding a Motion for the rejection of such a Bill, and after a very short Debate the Bill on that occasion was defeated by a majority of nearly two to one. In 1937 I listened to the whole Debate upon another similar Bill, and I was not surprised when again after only a short discussion, it was defeated by a large majority.
With regard to the presentation of the Bill to-day, I think all who have listened to the speeches of the Mover and Seconder of its Second Reading, would agree that however often such Bills have been presented in the past, the case for this change has never been more ably put to 2287 the House. In spite of the more or less active part which I have played in previous Debates I confess that it is with the greatest diffidence that I propose this Amendment. My anxiety is not due to the fact that I think our Amendment ill-conceived, or that I believe it will not receive the support of the majority of the House. It arises rather, because I feel that this task might have been accomplished more ably by one of my hon. and learned Friends. However, I am comforted by the thought that I shall be supported by the hon. and learned Member for North Edinburgh (Mr. Erskine Hill), whose unrivalled knowledge of the law relating to workmen's compensation will, no doubt, enable him to convince the House that this Bill should not receive a Second Reading.
Let me, as a layman, make a few observations which, I hope, will be helpful to those who, like myself, are not versed in the intricacies of the law. Before passing to a consideration of the fundamental difference of opinion which divides us on the issues raised, let me say, as I have said in previous Debates, that I believe it to be altogether wrong that a Bill of this nature should be introduced without any effort being made to compute the cost involved to trade and industry. It is no good for hon. and right hon. Gentlemen opposite to say, as the hon. Member for Kingswinford (Mr. A. Henderson) said on a previous occasion, that they are not interested in the cost. They ought to be, and for this reason. As was stated by the hon. Gentleman the Member for Westhoughton (Mr. Rhys Davies), whom I am glad to see in his place this morning, the burden on industry—if there be a burden, and I do not think that is disputed—would be a direct charge on wages. The hon. Gentleman four years ago in Committee, discussing a Bill of this nature, said:In my view all these social services are simply reducing the wages which industry would have been compelled to pay."—[OFFICIAL REPORT (Standing Committee B), 1st May, 1934, Col. 1204.]I do not think it is unfair to ask hon. Members opposite: How much will wages be reduced if this Bill becomes law?
§ Mr. Rhys Davies
The hon. and gallant Member must bear in mind that I said some other things on that occasion. Would he agree to this proposition—that 2288 employers before they arrive at their estimates on their profit and loss accounts include their insurance charges?
§ Colonel Ropner
This Bill does not deal with insurance charges. It deals with a matter which many of us believe to be incapable of insurance.
§ Colonel Ropner
I have quoted the hon. Gentleman himself. It is his statement—with which I agree—that all social services, at least to a certain extent, affect the level of wages. I repeat that I do not think it unfair to ask hon. Members opposite—
§ Colonel Ropner
The level of wages depends on many considerations other than the social services which exist at a certain moment. But I do not wish to raise a controversial point. I was only mentioning a matter on which I thought we should find common agreement, in view of the fact that the statement was made by the hon. Member for Westhoughton. This is not a case of employers saying that an enormous burden will be imposed upon them and that it will detract from their profits. This is a question which was asked in 1934, in 1936 and in 1937. Now, in 1938, I again ask those Members who support the Bill what sort of charge they believe will be placed on trade and industry by it?
§ Mr. Lee
Is not that an unfair question to put to us? On what basis can we make such a calculation? Surely all the calculations should be on the hon. and gallant Member's side. He has raised the question of cost; we have not. If, since 1934, he and his friends have not found time to make any calculations, he has not much of an argument in that respect.
§ Colonel Ropner
I cannot agree that this is a calculation which we ought to make. The hon. Member himself quoted some words of Mr. Justice Greaves-Lord who said that the suggestion that there would be an undue burden placed on trade and industry, and the fact that it was not possible four years ago to assess that 2289 burden, created an atmosphere of suspicion. Does the hon. Member not consider that whatever atmosphere of suspicion may have been created, could have been dispelled, if those who support the Bill had shown that they had made some effort to compute the burden which would be placed on trade and industry? If for no other reason than that after four years no attempt has been made to answer this question, I feel that the House should reject the Bill to-day.
§ Mr. Lee
When the Workmen's Compensation Act was introduced in 1897, you came along with all kinds of figures, and surely the calculations under this Bill would be much less considerable than those under the previous Bill.
§ Colonel Ropner
I do not know what figures the hon. Member is accusing me of coming along with. I have no recollection of coming along with any figures at all, but I say that when a Bill is introduced, if not the first time or the second or the third, at least on the fourth occasion some effort might have been made to give answers to questions which have been asked, not obstructive questions, but questions which we believe are of vital interest to the workers in trade and industry.
Before dealing with an even more important question, let me say one thing with reference to the apparent anomalies which arise under the law as it exists. We have been reminded this morning of cases which appear anomalous, and I, for one, would not suggest for a moment that cases of hardship do not arise under the present law, but I think it is fair to point out that if this Bill became law, a whole host of equally anomalous situations would be created. Negligence is extremely difficult to define and even more difficult to prove. In all cases which would come before the courts there would be a large element of doubt, and you would get, I am sure, what would appear to be precisely similar cases, where, on the one hand, a judge and jury would hold that the balance of evidence just went to prove that there had been an element of negligence, and as a consequence the higher scale might be awarded under the Common Law; and on the other hand you would get an equal, if not a greater, number of cases where the learned judge and jury would 2290 hold the opposite view, that there was not sufficient evidence to support the allegation of negligence, and then the workman would have, ultimately, after incurring the expense of invoking the Common Law, to accept compensation under the Compensation Act. I think it was the right hon. Member for Epping (Mr. Churchill) who, in one of his famous Budget speeches, talked about the inherent love of symmetry which resides in the human breast; but you will not get equal treatment for equal cases of hardship by passing this Bill. Equal treatment for equal cases of hardship is the goal at which we aim, and I suggest that the problem should be approached from an entirely different angle from that which is suggested by this Bill.
I will turn for a moment or two to what I think is the chief difference of opinion which divides those who support and those who oppose this Bill. Rights under the Common Law provide—and let me admit that if this Bill was passed, they might provide to a greater extent—one way of obtaining compensation in cases of accident, but you cannot consider the adequacy of rights under the Common Law, you cannot consider the merits or demerits of a Bill of this sort, without taking into account the whole range of legislation calculated to bring security to the workman. We must remember the Employers Liability Act, the Workmen's Compensation Act, the Factories Acts, all having a direct bearing on the subject to which we are now addressing ourselves. Then there are, National Health Insurance, widows' and orphans' pensions, even unemployment insurance and public assistance; and if assistance, which is rightly given in cases of accident and death, stopped at what could be claimed under the Common Law, there might indeed be ground for eliminating common employment as a valid defence. But it does not stop there, and I suggest to the House that we are quite wrong in talking as if it did.
For about 100 years the trend of thought and the whole bias of our legislation have been away from the hazard of the Common Law and towards the principles of insurance. It has been away from the problematical payment of a larger sum and towards the certain award of a smaller amount. I listened with 2291 very great care and attention to the case of the injured lorry driver, which was mentioned by the hon. Member who moved the Second Reading of the Bill, but it seemed to me that that case only illustrated the risks of the Common Law and the necessity of giving to the workman a certain payment along the lines of the Workmen's Compensation Act. It is quite untrue to suggest that the doctrine of common employment is new or that it i was new even in 1837. The judgment of that year did not alter the law, but it applied the law for the first time to cases such as we have in mind.
§ Mr. Kingsley Griffith
Is the hon. and gallant Member disputing the statement of Mr. Justice Neville, that prior to 1837 this rule was without authority?
§ Colonel Ropner
Yes, I am. The hon. Member is quite well aware that there are pronouncements of other equally learned, judges to the entirely opposite effect. What I was saying does not mean that I or anyone else believes that the position of workers 100 years ago would be considered satisfactory to-day. On the contrary, during the last century, and particularly during the last 30 years, a multitude of laws have been enacted placing new responsibilities both on the State and on employers, and in no country in the world is the position or the welfare of the workers safeguarded to the extent that it is in this country. But the progress which has been made has not been made within the Common Law, but outside it. I do not mean that any judgment has detracted from rights under the Common Law, but there have been superimposed on the Common Law new benefits quite apart from it, and that, we say, is the line that should be followed in future progress. Those of us who oppose this Bill believe that it is wrong to reverse the policy of a century, but that is exactly what this Bill would do. We believe it to be right to ascertain where compensation is still inadequate and to deal with hardships by the extension of modern methods.
One final word. We have been challenged during previous debates—and I rather gathered that a similar challenge was being issued to-day—to defend the doctrine of common employment, but I submit that we are not called upon to 2292 do so. What we do defend is the whole range of safeguards and social services which are enjoyed by wage earners to a greater degree in this country than in any other. Even so, I do not stand here to make any extravagant claim. I hope that I am not appearing unreasonable or giving the impression that I think there is no room for further progress. Nothing is further from my mind. There still may be hard cases; there are hard cases; but, that being so, I suggest that the proper method of approach is a comprehensive revision of all the Compensation Acts and not the retrograde step suggested to us this morning.
§ 12.16 p.m.
§ Mr. Erskine Hill
I beg to second the Amendment.
The House listened with the greatest interest to the speeches of the Proposer and the Seconder of the Motion. I think that whenever one has two conditions an obvious near hand knowledge of a subject, and at the same time a subject matter which affects even members of the House—we are all interested in the welfare of the workers—you necessarily have a deeply and keenly interested House. I want to say first of all, on the doctrine of common employment, that the Bill attempts to make an employer liable on the ground of fault for the acts of one of his servants who may be acting without his knowledge, may be acting against his will and may be acting in defiance of a definite prohibition. My hon. Friend opposite could say, and I think I heard an hon and learned Member opposite begin to say, that it does apply to third parties already. I admit that at once. But I think that when you have liability being put on one person for the acts of another, you ought to look carefully into it and see first of all what are the limits to the law as it stands, and then go on to the further question, what those limits ought to be.
I shall not detain the House long, but I think it is important to consider what the doctrine is and what the limits of the doctrine are. I think it right to say at the outset that the doctrine, which was for the first time raised in the case of Priestley and Fowler, was before that time unknown to the law. My hon. Friend was entitled to take the view that although it had never been discovered before it was previously latent in the law. 2293 My hon. and learned Friend opposite would agree with that. But I think I must admit quite fairly that that was the first time it was discovered to be part of the law of this country. The liability laid down there has been limited very much in the years that have passed. First of all I want to mention the limitation of any neglect in fulfilling what is called an absolute statutory duty. I think the common employment exception has been very definitely curtailed by the rule which applies when the neglect arises out of a breach of statutory duty. The chief examples of this rule arise from the provisions of the Coal Mines Act and the Factories Act. Every time this House has passed such an Act it has in effect been limiting the doctrine of common employment, because in each of those Acts you have absolute duties laid upon an employer to which, if he contravenes the doctrine of common employment, provides him with no answer at all.
I will summarise the limitation in this way: When an Act of Parliament imposes a duty upon an employer in the interest of a class of persons, even if he is in breach of that statutory obligation he is liable, and the defence of common employment does not apply at all. Therefore I think it follows that every time this House, or the Department acting on an Act of Parliament which authorises it so to do, imposes a fresh statutory obligation on an employer, by so much is this doctrine of common employment restricted. At any rate I think I find myself in entire agreement with hon. and learned Gentlemen opposite when I say that that is a definite exception to the rule which applies as the law was first stated.
Then one comes to common law. The Seconder of the Motion mentioned a recent case in the House of Lords, with which I had some association myself, and he mentioned it as having limited or minimised the effects of the doctrine of common employment. I think it has made a very substantial difference. For reasons which I shall give, I think the House must see that already the doctrine has been still further limited. The case decided that an employer was liable for, and could not delegate to any other person, the provision of a reasonably safe system of employment. It had previously been known to be a duty upon him to see that if he had knowledge of any 2294 defects, it was his duty to see that the system was right, even if he employed competent servants to act for him, but from the time of that case it imposed on him the duty to see at his peril that there was a proper system provided. I think clearly that that answers the questions which gave some difficulty the last time this House debated the question of the liability in general as far as the management of a concern went. I think that the effect of that decision was that whenever it was a question of system as opposed to what I think was called "casual accident" in the House of Lords, there was an absolute duty imposed on the employer. It follows that with the corresponding duties the appointment of competent servants and the provision of adequate plant and machinery—in those cases, too, the doctrine of common employment has gone.
§ Mr. Erskine Hill
There would be liability on the part of the employer also, it seems to me, as a logical result of that case, where there was any defect at all in the plant.
§ Mr. Erskine Hill
It would only damage him so far as contributory negligence on the part of the workman could be made clear. I do not think it would have any other effect. It may be said that if the doctrine is so limited, why not limit it further? It is there that I do ask the House to consider what has been the policy of the country in past years. In 1880 there was a general feeling in the House that something ought to be done, and an effort was made to limit the doctrine at that time. In 1887 you had the Employers' Liability Act passed. The 1880 Act was followed by successive Workmen's Compensation Acts. The policy was established in the Workmen's 2295 Compensation Acts of 1897, 1906, 1923 and in the consolidating Act of 1935.
In all these Acts we had the policy established of insurance as opposed to fault. The possible injustice to the workmen was recognised, and it was decided by the House that it was best met by a policy of insuring the workmen and not proceeding upon actions of fault at common law, and of encouraging instead cleaning up of the situation by the remedy of the practice of insurance. It seems to me that it would be the greatest possible mistake to depart from that rule. The hon. Member for North-East Derbyshire (Mr. Lee) said that we on this side thought that the Workmen's Compensation Act was the last word. I assure him that that is not the case. I think that the House can remedy by a new Act any injustice obtaining and it would be infinitely better to remedy it along the lines of compensation and improving compensation rather than of encouraging the common law action. The common law action is often long drawn out. There is delay and uncertainty, and the defence made by the employer, such as contributory negligence, might defeat the man's claim at the end.
If a workman is successful in a common law claim it may have the effect that costs have to be set off against any compensation to which he may be entitled. From the point of view of both the workmen and of the employer it is obviously the better thing to dispose of the common law action and to encourage the plan which has been followed for so long of amending, if need be, the Workmen's Compensation Act, but of getting something which is sure, certain and quick and is a remedy, instead of having to go into all the abstruse legal problems of an action based on fault. There are necessary expenses, delay and uncertainty, and if he is badly advised, as he sometimes is, and he proceeds with a common law action, he may lose the benefits that would have come to him if he had proceeded originally under the Workmen's Compensation Act.
§ Mr. Arthur Henderson
Is not the object of this Bill to place the injured workman in the same position as the man in the street who suffers personal injury from an accident? If that be so, is it not just 2296 to expect that the injured workman should have to face up to the same liability in respect of the defence of contributory negligence or some other defence as the ordinary member of the public? In other words, the object of the Bill is not to place the injured workman in a privileged position, but in the same position as a member of the public.
§ Mr. Erskine Hill
The effect, as I think the hon. Member would admit, would unquestionably be, as I have suggested, to encourage the workmen to proceed along the lines of the common law. I fully realise that the object of the Bill is to place the workmen in the same position as a third party.
I would like to say a word on a question that has come up in the course of the Debate. It is suggested that the employers always say that industry cannot afford to bear the burden. I think that hon. Gentlemen opposite would agree with two propositions. The first is that there are some burdens which it would be impossible for the industry to bear; and the second is that there is an obvious duty upon industry to take some burden. Between these extremes we have to find what burden the industry should properly bear. It is here that I find myself in disagreement with hon. Gentlemen opposite, because, when we have this quantum of a reasonably available sum whatever is may be—and none of us can find out what it is—we have to settle how we are to use it. It is here that I think hon. Members who support the Bill are wrong. I would like to see the most that can be done for the working man and the most that industry can reasonably bear along the lines of workmen's compensation and insurance. I do not think that this Bill has found the right way to meet the situation, but, on the contrary, that it will have the effect of encouraging just that type of uncertainty and expense—
§ Mr. A. Jenkins
Will the hon. and learned Member explain the reason he holds that there should be a distinction between justice to the man in the street and justice to the workman when he becomes the victim of the doctrine of common employment?,
§ Mr. Erskine Hill
If the hon. Member will allow me, I will deal with that as I develop my argument. The doctrine as limited produces a minimum of hardship, 2297 and, as I have said, that hardship will be met in the right way by the best possible Workmen's Compensation Act. The Employers Liability Act which has been little used, has difficulties which appear on the face of it and travels along a line which has not been and should not be encouraged. If I understand the hon. Gentleman who interrupted, I think his difficulty is to distinguish between the third party who is injured as a result of the negligence of a man's servant and the workman who is injured. I will proceed to deal with that subject. The fallacy which hon. Members opposite fall into is that they regard the third party as the normal case, and they regard the fellow servant as being an exception to it. In a sense it is, but the doctrine of a man being responsible for the acts of his servant as regards third party is an exception to a general rule which is wider still. That rule is that every man is responsible for his own wrongs.
We have that definite rule, and we have it excepted from in the case of the third party. The reason is that it is difficult in some cases for the man who is injured to determine the liability as between the master and his servant. It was felt that where you had a case in which there could be obvious collusion between master and servant, something ought to be done and, therefore, the master was made liable for the acts of his servant. It is surely different when one comes to deal with the question of the fellow servant. The statutory rules are published at the pithead and in the factory. The people who are best able to judge of what has, in fact, happened at an accident and what has been the cause of its are the fellow workmen themselves. There is no need to extend to them the doctrine of vicarious responsibility. It seems to me that there is a distinction, which I feel hon. Members opposite will do me the fairness of thinking is a real distinction, between the case of the third party who is an exception to the general rule of everyone being responsible for his own actions, and the fellow workmen where the conditions are clearer, where the workman knows that the situation of his work is, and where the difficulty which provided the original exception does not exist.
2298 There is only another point. Clause 2 of the Bill says that it is not to apply to Scotland, and in many ways I am glad that that is so; but I would point out that the courts have again and again—Lord Chancellor Cairns said it in the House of Lords in the case of Nelson v. Merry and Cunningham and it has been said in various other cases in the House of Lords since—that the laws of the two countries ought to be the same, that there ought not to be one law for Scotland and another for England, but that the liabilities of the master and the advantages to the workmen should be the same in both countries. Therefore, I think it right to draw the attention of the House to what I think is a bad thing about the Bill, because if the House believes that the Measure would advantage the workmen in one country it ought to make it applicable to both countries.
§ Mr. Rhys Davies
Would the hon. and learned Member like all the laws of England to apply to Scotland?
§ Mr. Erskine Hill
No, Sir, I should not, but the reason why this is an exception to that rule is that the courts have throughout pointed out the advantages of the laws being the same in both countries, and that is a point which the House ought to take into account if, as I hope it will not, it decides to give this Bill a Second Reading.
§ 12.38 p.m.
§ Mr. K. Griffith
I should like to deal with one remark made by the hon. and learned Member for North Edinburgh (Mr. Erskine Hill). He suggested to us that the working of the rule which it is sought to abolish by the Bill is causing the minimum of hardship. I can give no sense to those words except by taking them to mean that hardship is caused only in a really small number of cases, and if that be true, the effect of this Bill in remedying the grievances in that small number of cases could not possibly cause the enormous burden to industry which was put forward by the hon. Members who moved and seconded the rejection of the Bill.
§ Mr. Erskine Hill
I think I am right in saying that I never made any such point about the expense to industry. I do not believe that, from the point of view of expense, the Bill would affect industry to the extent which was suggested by the 2299 hon. and gallant Member who moved its rejection.
§ Mr. Griffith
I seem to have driven a wedge into the Berlin-Rome axis, and I am satisfied. I notice that on several matters there was no exact alignment of view between the two hon. Members. In congratulating the two hon. Members who introduced the Bill, as I most warmly do, I would at the same time venture to remonstrate with the seconder in the prejudice which he appeared to have against my profession. He must not judge us by our hard cases. We are not all of that type, and, in point of fact, his own speech, and that of the mover, showed that the judges have time after time expressed views which are along the lines which he himself holds. I suggest that what he has to struggle against here is not legal prejudice but vested interests, and it has been so all the time.
The Mover asked "Why is this Bill opposed?" I hold in my hand a document which shows why it is being opposed. The operative words are in the title. "The National Confederation of Employers' Organisations." That is the line upon which this opposition goes. When the hon. and gallant Member who moved the rejection of the Bill points with pride to the majorities which he has obtained on previous occasions, I would reply "Look at the complexion of the House in which those majorities have been obtained." Unfortunately, the issue was fought out very much too much on party lines on the other side, and the only deduction which he can ask the House and the country to draw from those majorities is that as long as the complexion of this House remains what it is predominently to-day, that is the kind of result which is likely to be achieved.
I come to the question raised by the hon. and gallant Member for Barkston Ash (Colonel Ropner) as to the cost of the abolition, and I am glad that I am arguing with him only, because his ally has entirely thrown him overboard. He says that the cost of it would be great, but let it be remembered that what we are trying to do is to remedy something which is so indefensible that he himself has not attempted to defend it. He refused to do so in terms when he came to the end of his speech. If there is an injustice, hon. Members are entitled to 2300 point it out, and if he comes here to say that it cannot be remedied because of the enormous expense surely, in legal language, the burden of proof is entirely upon him. He is setting up an impossibility. Let him prove the impossibility. Has he been to any brokers to ask what additional rates they would quote if they were asked to insure against an additional liability of this kind? Surely it is possible to give us some information on that point. But, suppose that the burden on industry would be very great, then, in logic, he ought to go a very great deal further. Why does he not absolve employers from liability in all circumstances? Think of the enormous relief that would be to industry; and, of course, he would tell us that the savings would immediately be distributed in the form of increased wages to the workmen.
§ Colonel Ropner
The hon. Member is exciting himself about a point which I did not attempt to make. All that I said was that the promoters of the Bill ought to be able to tell us what the cost would be.
§ Mr. Griffith
Is the hon. Member now suggesting, agreeing with his seconder, that there is no reason to suppose that the cost would be considerable?
§ Mr. Griffith
The fact is the hon. and gallant Member has come here to raise the consideration of cost as an obstacle against doing an act of absolute justice, but does not think it worth while to put any materials before us to show that his objection is a good one. I will leave it at that. Then he made the point about how unfortunate it would be for the workman to be thrown on to a remedy in connection with which it would be so difficult for him to establish proof. The workman is not, in fact, thrown on to any other remedy at all. If he chooses to go for the more certain remedy under the Workmen's Compensation Acts he can do so; this Bill only gives him an opportunity to seek the other remedy if he chooses; and if he does choose wrong, and suffers in the way of costs, then, like any other litigant, he has to bear the penalty. The difficulty of proof of negligence is not indigenous to cases between master and servant. In every road accident there is a tremendous difficulty in establishing exactly where the negligence 2301 lay, but no one would say that for that reason no remedy should be provided in road accident cases. His argument on that point falls to the ground by its own weight.
In all these Debates there is a tendency to say "Of course you have a grievance; we cannot deny that there are these hard cases; but you are going the wrong way to remedy them." Some unascertained and unsuggested remedy under the Workmen's Compensation Acts is to take the place of the proposal put forward here. Here is a positive and simple remedy presented by hon. Members above the gangway, and if it is suggested that it is a bad one the opponents ought to produce their alternative and not put forward vague suggestions.
§ Mr. Griffith
But the hon. and learned Member is opposing the Bill, and saying that it is a bad one, and it has been suggested in every Debate that a remedy could be provided in a better way. Why not give us some indication of what the better remedy should be? The real fact is, of course, that this suggestion of the remedying of the Workmen's Compensation Acts to take the place of the Bill now before the House is simply a carrot hung in front of the donkey's nose in the hope that he will go on following it perpetually, instead of taking the direct method. The use of the Workmen's Compensation Acts in the discussion of the Bill has been merely to confuse the issue. This matter has nothing whatever to do with the Workmen's Compensation Acts. When they were introduced it was not with the intention of substituting one remedy for another. They were introduced to give an additional remedy without any thought of taking away any right that might exist. Hon. Members are bound to agree that the intention was to leave the common law remedy available, and if we go as far as that, the common law remedy should be available to the workman in a simple and just form and not in the form of an excrescence on the common law, which was described by Mr. Justice Neville as arbitrary and artificial.
The best legal intelligence has long been endeavouring to correct this form. The Seconder of the Bill, to whom I am sure we all willingly pay a tribute for a valuable speech, gave us a list of the various steps by which the doctrine of common 2302 employment has been cut down. The law has obviously been trying for all these years to reject from its system something which ought never to have got into it. All these successive processes of limitation which have been described are an indication of the gradual realisation that a mistake was made about 1oo years ago and that it ought to be put right. The law, moving within the bounds of case law and precedent, cannot move as quickly as justice would desire. The responsibility for putting this matter right rests upon this House, in whose power it is to determine once and for all to get rid of a system which is obviously wrong.
I submit that the root injustice in the doctrine of common employment is that it makes another remedy available to the workman dependent upon circumstances which are entirely out of his control. Take the case in which a contractor has to send a workman to work at a distance. The workman may be conveyed on a lorry with the material of his own employer, in which case if there is an accident he is limited to his workmen's compensation. The employer may not have room on the lorry and he may tell the workman to take an omnibus. If there is an accident in that case, the workman has a very much larger remedy. That difference in remedy depends upon nothing in reason or logic, or upon any control which can be exercised by the workman. He has to go in the vehicle which is indicated to him, although what happens may affect his dependants in the most vital way.
The only theoretical defence put forward for this principle of common employment has been so ridiculed in Debate that I need hardly deal with it at any length. The fiction that the worker chooses those with whom he is going to work and is thereby precluded and estopped from making a complaint is exploded as a fallacy, but if there were anything in it, the bottom of the whole doctrine was knocked out when it was decided that the employé whose negligence causes the accident cannot avail himself of the doctrine of common employment. The matter has not been given very much prominence because, in the nature of things, a workman is not likely to bring an action at common law against his co-employé, who is almost certainly without funds sufficient to supply him with the remedy, but it is none the less accepted as a principle of law. It knocks the whole 2303 bottom out of any logical defence of the doctrine of common employment. If the employer can say: "You chose to take this employment with all its risks," the co-employé can equally say: "You chose to work with me, and you must take the consequences of your choice."
I suggest that this doctrine is now left without any defence. I have heard some-think this morning which I have never heard in this House before. Here is a Bill of the simplest imaginable character to abolish a certain doctrine known as the doctrine of common employment. The hon. and gallant Member for Barkston Ash (Colonel Ropner) opposes the abolition of that doctrine and yet says that he is not called upon to defend the doctrine of common employment. I cannot imagine by what process of logic he can arrive at such a conclusion. There is only one conclusion, which I invite this House to accept, and it is that the hon. and gallant Gentleman does not feel himself called upon to defend the doctrine of common employment because, if he were so called upon, he would have no answer whatever.
§ 12.52 p.m.
§ Mr. Higgs
I have very much sympathy with the supporters of the Bill, but I have the impression that they do not quite realise the complications which would result from the passing of the Bill, which, although very short, is far-reaching in its effect. It concerns common employment. Some hypothetical cases have been cited this morning, but I wish to give some practical cases which have come within my experience during the last three months. Two fellows were working on a painting job. They had a ladder, and one was painting at the top of the ladder and the other was supposed to be holding the ladder at the bottom. The one at the bottom saw a new press by the ladder and went to look at it. He put his foot on the treadle and his hand under the press, and his fingers were cut off. How is it possible for the employer to have been responsible for that accident when the employer had nothing to do with it whatever, and had given no instructions to the man to touch the press?
§ Mr. K. Griffith
Who was the co-employé whose negligence caused the accident and in respect of whom the doctrine of common employment is invoked?
§ Mr. Higgs
If the case I cited is not acceptable I will cite another. It is a similar case, in which there were two girders, and a piece of wood was wedged between them. Another employé erects a ladder against that piece of wood, which was improperly wedged, and the fellow falls to the ground. Will the hon. Gentleman accept that case?
§ Mr. Higgs
The wedge weighed about two ounces. If this Bill is passed, there will be a law case on every occasion, and we do not want law cases, but compensation. I am advocating increased compensation, as did my hon. and learned Friend the Member for North Edinburgh (Mr. Erskine Hill). That, I think, is the solution of the problem. We do not want increased working expenses; as much as possible of any payment that is made by the employer should go to the employé. This problem is one that concerns my own industry, and I am in favour of the employé getting greater compensation than is the case at present. Under the Employers Liability Act, to which reference has been made, there were 34 cases in 1934, and 33 in 1935. It is undesirable to complicate matters by extending that Act. The hon. Member for North-East Derbyshire (Mr. Lee) referred to Lord Cranworth's statement during the middle of the last century. While that statement is equally true to-day, the attitude towards compensation for the worker has 2305 considerably altered, and I again emphasise my hope that it will alter in future to the advantage of the worker.
§ Mr. G. Griffiths
Does the hon. Member recollect how he voted on the Compensation Bill the other Friday afternoon?
§ Mr. Higgs
I know on which side I voted, but I am not discussing last Friday afternoon; I am discussing the Bill that is now before the House. If a fellow-servant is injured, he can sue his fellow-workman, but why should he be able to sue his master? That seems to me to be most illogical. Under the Workmen's Compensation Act, compensation is paid irrespective of proof of negligence, and no inquiry is necessary. That is the proper method. The common law and the Factory Acts assist the worker. The employer is at present responsible for fencing machinery, providing safe constructional methods, providing welfare and protection against accidents—
§ Mr. A. Henderson
This Bill merely seeks to give to the injured workman the same rights that he enjoys under the Factory Acts to which the hon. Member has referred, and the Coal Mines Act, under which only last year, as was mentioned by the hon. and learned Member for North Edinburgh, the House of Lords gave a right of action to the injured workman.
§ Mr. Higgs
I do not- think we can generalise from the particular and make a comparison with other cases. The employer pays for carelessness on the part of everyone whom he has vested with a degree of authority, and why that should be extended to common employment I fail to understand. If a crane is being operated, and an employé overloads that crane on the instructions of the foreman, the employer is responsible; but if the employé overloads the crane without having received instructions to do so, then the employer is not responsible. I consider that this Bill, if passed, would be detrimental to the encouragement of forethought and care. I am not suggesting that a workman ever injures himself for the sake of compensation. We have heard the case of the bus driver and the tram driver, and I think there has been a case in London where the services were united, and where, before they were united, compensation could be obtained, 2306 while after they had been united compensation could not be obtained. It is no use, however, regarding these cases as parallel to the case now under discussion.
The number of accidents in industry is far greater than on the roads, and we know the extent to which the courts at present are employed in settling cases regarding road accidents. If this Bill is passed, there will be considerably more congestion in the courts than there is at present. At present the employer pays for damages due to his own negligence, for damages due to the negligence of his servants to whom he has delegated authority, and for damages due to a breach of statutory duty on his part, but he does not pay for damages if the negligence is contributed to by the injured servant, nor does he pay if the negligence was that of a servant in common employment. If we do away with these last two items, damages will be paid in every case, and there will be no necessity for the Workmen's Compensation Acts, because damages will have to be paid without exception. My experience is that the workers do not demand damages for accidents brought about by their own carelessness; they are reasonable human beings, as reasonable as any other section of the community, and there is no desire or agitation for compensation in that direction. We are simply asking one man to pay for another man's carelessness. The Under-Secretary of State for the Home Department, on 19th November of last year, said this:When the reports of these Committees are received"—I do not know whether the reports have been received at the present moment—the Government intend to consider as early as possible any recommendation which they may make for the amendment of the Acts"—He was referring to the Workmen's Compensation Acts—and if they accept those recommendations, to take steps with a view to introducing legislation to implement them."—[OFFICIAL REPORT, 19th November, 1937; col. 814, Vol. 329.]That is the way in which to get this matter altered. When the Government produce a revised Workmen's Compensation Bill, it will have my whole-hearted support, and I hope that it will come forward at an early date. As regards the question of cost, we on this side are being 2307 accused this morning of saying that industry cannot afford it. I do not contribute to that line of thought. I have not been here during the whole of the proceedings, but I have not heard a definite statement of that description. The present rate for workmen's compensation is anything between 5s. and £1 in the £100 on the wages bill. It may be of the order of 8s. or 10s. on the average. If we can improve the rate of compensation, I, for one, am quite prepared, as I am sure my fellow employers are prepared, to pay an increased amount towards that expense. It may be of the order of 1s. or 2s., but 1s. or 2s. per cent. is not going to affect industry, and, if such an increase were brought into force, the compensation could be distributed pro rata according to necessity.
I think it would be very dangerous to complicate the Acts by passing this particular Bill. I sincerely trust that the House will not do so, and that the alternative method of compensating workmen will be adopted at an early date. It is long overdue. The 30s. a week maximum is not sufficient compensation in the case of disability, and I shall be very pleased to support that increase when it is put forward by the Government in a proper manner.
§ 1.6 p.m.
§ Mr. James Griffiths
If you, Mr. Deputy-Speaker, were in the position of an independent chairman at a tribunal this morning you would tell my hon. Friends the Members for North-East Derbyshire (Mr. Lee) and Clay Cross (Mr. Ridley): "Gentlemen, your case is proved, and you may go home." I have not heard such weak arguments in this House before as those which have been put forward against the Bill to-day. I have spent one or two profitable hours in the Library this week, reading up the old Debates on workmen's compensation. In particular, I read over every line of the Debate—which was spread over several days, as was the custom in the old days—on the Second Reading of the Employers' Liability Bill, which was introduced by the then Home Secretary who was also a very distinguished lawyer, the late Lord Oxford and Asquith. That Debate had a familiar ring although it was in 1893—many years ago. The hon. and learned Member for North Edinburgh 2308 (Mr. Erskine Hill) and the hon. and gallant Member for Barkston Ash (Colonel Ropner) have said that this doctrine of common employment has always been implicit in common law and that it had been discovered by one of the judges; but, against that, I take the opinion of the then Mr. Asquith, who contradicted that, and said:The courts invented, for it can only be described as an invention, an implied contract on the part of the workman to take upon himself all the risks of his employment, and, amongst those risks, the negligence of his fellow-servants.I read through that Debate, as I have listened to this, and I did not see a single argument put forward against this doctrine. I was really surprised to find that in 1893 a Liberal Home Secretary was charged by some of the diehards of that time, Tory employers, with bringing forward this Bill as the servant of the trade unions of this country. I have heard so much about "taking orders from Transport House," and I thought it was a recent development, that it was refreshing to read that in 1893 Mr. Asquith was charged with the same thing. In future, when I and my hon. Friends here are charged with being the hirelings of Transport House, I hope we shall not deny it, but shall say that we are in the company of Mr. Asquith in that respect.
The second point that emerged from my reading of the debate in 1893 also is familiar, that is, that if the Employers' Liability Bill which was then introduced to abolish this pernicious and indefensible doctrine were passed, according to the charge made by the opponents, the cost would be ruinous. The language used at that time is familiar to us now. It was said, on behalf of the employers, that if you abolished the doctrine of common employment, you would place such a burden on industry as would retard its development and frighten capital away. That is said every time we bring forward something connected with industry. The hon. and gallant Member for Barkston Ash charged our side with what he regarded as being a delinquency, in that we introduced a Bill and did not put before the House any estimate as to its cost. I am not going to argue whether it is our responsibility or his to produce figures as to costs, but is it not true, looking at the whole history of workmen's compensation legislation and of our 2309 social service legislation, that every time the employers have grossly over-stated the extent of the financial burden which will be placed on industry? In the mining industry, we have a system of ascertaining the proceeds of the industry, to many features of which I and my hon. Friends in South Wales and other parts takes serious objection, but it gives us a fairly complete picture of the incidence of cost.
Take, for example, workmen's compensation. At this time, we are discussing a Bill to nationalise royalties, and it would be appropriate, therefore, to ask the hon. and gallant Member for Barkston Ash whether he thinks the heavier burden on the coal industry in South Wales results from compensation or royalties. He probably knows that the heavier burden is royalties, and that the cost of insuring workmen in the coal mining industry, including employer's liability, covering employers against all the risks involved under the present Acts that bear on accidents and damages arising out of them, is to-day, in South Wales, 3d. per ton less than the cost of royalties. The cost of royalties has been borne for centuries, and, therefore, I say, when the case is put up that the cost of this would be ruinous, that the cost of social service has not been, and will not be, ruinous to industry.
When hon. Members talk about the cost of social services to industry, will they sometimes try to visualise what would be the cost if we had no social services? Could the country have gone through the last ten years, with its millions of unemployed, all the misery and distress of those tens of thousands of men cramped into the valleys of South Wales and the slums of Glasgow, were it not for the system of social services? I was very interested recently to receive in this House a man who was in this country as a representative of Princeton University, U.S.A. He was sent over here by his University to make an investigation into the social service system of Britain, which Americans were so pleased to deride at one time, but which they are now spending much money in investigating. He said, "We have gone through one crisis, and no one in America wants to go through another without some kind of social service system, such as you have." Therefore, when they talk about the cost of social services and the added 2310 expense which is to be placed on industry, let hon. Members please visualise the cost that would be involved to the country in abolishing or doing away with social services.
§ Colonel Ropner
I am sure that the hon. Gentleman would not misrepresent what I said intentionally, but if he listened to what I said he will remember that the point I tried to make was, that, in the view of the statement of the hon. Gentleman the Member for Westhoughton (Mr. Rhys Davies) that this would be a charge upon wages, I did not think it was unfair to ask that some calculation might have been made as to what the charge upon wages would be.
§ Mr. Griffiths
I accept the correction of the hon. and gallant Gentleman that that is what he meant, but generally the charge is made. We come here as representatives of the workers—I represent not only the Llanelly division, but I am a Member of Parliament elected to serve the Miners' Federation, and so are some of my colleagues—and if the cost of a Bill such as this were to fall upon wages, and the men whom we represent asked for it, we should pay it. If this is so, surely, the only remaining argument of hon. Gentlemen opposite for voting against the Bill has gone, and I hope that hon. Members opposite will troop into the Lobby and say that they will pass this Bill because the workers will pay for it. Let us form a united front. One of the elements of the cost of insurance against risks of this kind is the profits of insurance companies. I have seen insurance companies' quotations to small employers as to premiums required to cover employés against risk not only of one particular accident, but one disease, that of silicosis, and they are outrageous. The cost of these services could be considerably minimised if insurance in this country were nationalised and made a State service. The hon. Gentleman the Member for West Birmingham (Mr. Higgs) spoke of the cost of insurance and said that it was 8s. and 10s. per £100 of wages, but how much of that 8s. or 10s. goes in compensation and how much in profit? How much is taken as a rake off by the insurance company?
There is a tendency now among employers, particularly in the mining industry and certain other industries, to form their own mutual insurance com- 2311 panies, and they are employing men at handsome salaries of £3,000 or £5,000 a year to work these schemes, and they are finding it infinitely cheaper than taking the cover of an insurance company. The cost could be made much lower than it is now if the system of insurance were taken over by the State. I commend the suggestion to hon. Members opposite, and ask them to join with us in asking the Government to bring forward a Bill to enable the State to give covers for all kinds of insurance. We know that the finest insurances, the least costly, where the administrative costs are lowest, and where the biggest proportion of the contributions flow back in benefits, are those which are operated by the Government. If such a cover were provided by the Government, the question of cost would amply be met.
As on previous occasions, we are again asked why we press this Bill. Is it not better, it is asked, to press for an amendment of the Workmen's Compensation Acts? Of course it is. I admit frankly that a comprehensive workmen's compensation Act worthy of the name would be better for everybody concerned than this Bill. Let me make an offer to hon. Members opposite. If they think that this Bill is the wrong way to tackle this matter, let us have a friendly bargain. We will undertake to withdraw this Bill and will introduce a comprehensive Workmen's Compensation Bill on the understanding that hon. Members opposite will support us. That is a fair offer. Let us make the House of Commons a Council of State. Let us make it another bargaining place. These are days of talks. They are talking outside this House, in Downing Street and elsewhere, so let us get on with talks here. Will the Governagree to accept such a Bill, if we withdraw the present Bill? No doubt the hon. and gallant Gentleman the Member for Barkston Ash can afford to vote against the Government as his majority is large, but I ask the Government to do this. When are hon. Members opposite going to vote in favour of this sort of thing instead of expressing their sentiments?
Many years before I came to this House I was a miners' agent in the Swansea Valley. There is a colliery in that valley to which I was called about four or five years ago. The men told me that they were in difficulties, that they had been 2312 sent for by the manager, and that they had been told that the demand for coal had declined and that that meant that the colliery company could dispose of only half their output. The company said that they must reduce the number of men employed as they could not afford to work like that; they must cut the number of workmen down to half. The men told me that they did not want to do that and asked me if I would try to fix up something with the manager of the colliery. The chairman of the miners' lodge made an offer to the managing director. He said, "We do not want to see 300 of our fellow-workmen put upon the rates, and, therefore, we make this suggestion. Will you agree that we should share the work—three days each of work, and three days each of unemployment? It will not cost you any more and we will make up the incidental losses that are incurred. Will you accept that offer?" To his credit, the managing director accepted that offer.
Last week I went to Swansea Valley and met a man who had been attacked by silicosis. He said, "Look at my position. The last 12 months during which I worked was the period when we shared work. At that time I could have worked full time at the expense of pushing another man out. Look at the result. My case has been to court. The employer is merely a cypher in it; the insurance company are fighting it. My case has been to the county court and to the Court of Appeal. The Federation tell me now that they have been informed by the best legal advice that can be obtained in this country that there does not seem any prospect of the decision being reversed in the House of Lords." The consequence is that, because that man made a gesture and agreed to share work with a fellow-workman, he has had his compensation payment worked out in this way. They took his earnings for the last 12 months when he worked three days a week and divided it by 52, and they regard that as his weekly average. This man, who is doomed not to work any more, is penalised for his gesture. That is an anomaly in the Workmen's Compensation Acts. The short-time due to sharing work with one another because of depression has now depressed the amount of compensation allowed to this man. We on this side of the House should not be here bothering with a trivial 2313 Bill such as this if we occupied the benches opposite, and when we do occupy those benches we shall bring in a comprehensive workmen's compensation Bill. The man who risks his life, in serving the country, wherever he may be, should be given protection. The other day we voted £5,000 compensation to an Ambassador who had served this country in China. I pay my tribute to him. I do not deny him the right to the £5,000. But what about the men who risk their lives every day, who are risking a Shanghai for 7½ hours every day; men who are injured every day in the service of the country and who are cast aside by industrial disease? If the Attorney-General, in his reply, says that this Bill is not the way to deal with the matter, will he tell us that the Government intend to bring in a Bill to deal with it—a Bill which we can heartily support?
§ 1.26 p.m.
§ Mr. Goldie
I regret that I was not present when the Second Reading of the Bill was moved, but from what I have heard of the Debate I have been reminded of a remark by the hon. Member for Gorbals (Mr. Buchanan) in connection with the London Passenger Transport Bill. He said that the Conservatives were not sympathetic to working men. I sincerely trust that when the Division comes those who think as I do, even though they be Conservatives, will follow the promoters of the Bill into the Lobby in support of a Measure which has my wholehearted and enthusiastic support. In view of the remark of the hon. Member for Gorbals, I would point out that it was one who now occupies a high and distinguished judicial office, who was then the hon. and learned Member for Norwood, Sir Walter Greaves-Lord who, from the Conservative Benches, moved the Second Reading of a Bill to abolish what I can only describe as an excrescence on the fair purity of English law.
I wish to speak, not as a business man, not as one who has had the business experience of the hon. and gallant Member for Barkston Ash (Colonel Ropner) or the hon. Member for West Birmingham (Mr. Higgs), but as one who approaches the question wholly from the legal point of view. I suppose that hon. Members, like myself, have had sent to them some pamphlets in favour 2314 of the rejection of the Bill. One which I received is not marked "Confidential," but it would be hardly fair to the industry, in view of what the pamphlet says, if I were to reveal the name of the Association. It says:The industry shares the view of industry generally that the Bill is misconceived. Parliament recognised long ago that the needs of the worker could not be supplied on a common law basis, which is founded on the fault of the person to be sued, but turned to the principle of insurance by passing the Workmen's Compensation, Health Insurance, Acts, etc. By so doing, far greater protection has been given to the worker and his dependents than could be otherwise given. The present Bill is therefore inconsistent with the policy which Parliament has pursued in recent years.I am modest enough never to put forward legal views without having consulted authorities. The hon. Member for Nelson and Colne (Mr. Silverman), who is probably one of the leading authorities in the House on the law of negligence, will bear me out on this point. I find that in the last edition of "Salmond on Torts," dealing with common employment, there is this statement:It is irrational, and it is to be regretted that the Legislature has not seen fit to abolish it instead of merely establishing a series of capricious exceptions to it.If this Bill is passed, it will sweep away the whole of this ridiculous doctrine of common employment. Therefore, I fully and enthusiastically support the Second Reading. Let us consider how this peculiar doctrine arose. Neither the hon. and learned Member for Barkston Ash nor the hon. and learned Member for North Edinburgh (Mr. Erskine Hill) is in his place but, with respect, I would point out that they skirted round the whole surface of the subject and neither gave us, what I fully expected from the line of their argument, a quotation from Hobbes' "Leviathan" nor a reference to the theory of the Social Contract. The workman is supposed to risk his life in pursuing a contract. May we, in all seriousness, deal with the matter on a practical basis? I see the hon. Member for Hitchin (Sir A. Wilson) in his place. Let me put this point to the hon. Member for West Birmingham. Suppose he and I had the great honour and privilege of an invitation to have a "walk and talk" with the hon. Member for Hitchin. Suppose I got there first and decided to give up a precarious career at the Bar for possibly more remunerative work as 2315 foreman in the employment of the non. Member for Hitchin. Suppose the hon. Member for West Birmingham then came along and desired to enter the employment of the hon. Member for Hitchin, I am certain that the first question he would ask would be, "Who is the foreman under whom I have to work?" As soon as he was told that the hon. and learned Member for Warrington was the foreman he would not take the risk of being made subject to the doctrine of common employment in those circumstances.
From a perusal of the report referred to by the hon. Member for Llanelly (Mr. J. Griffiths) it very much looks as if in the early days of workmen's compensation this House was anxious to make liability other than that under the Act depend on the personal negligence of the employer, in the sense that it was only if you could prove the personal negligence of the employer that there was a remedy for breach of statutory regulation. Be that as it may, the courts undoubtedly have, on the one hand, modified down so far as the breach of statutory regulation is concerned, this doctrine of common employment. I do not know whether the hon. Member for Nelson and Colne will recollect a case in which, two or three years ago, the Court of Appeal decided that the workman's rights were limited entirely to the Workmen's Compensation Act, unless you could show personal negligence on the part of the employer. That was only overruled by a decision of the House of Lords in a case in which the hon. and learned Member for North Edinburgh was concerned. We have to tighten up the law on the question of insurance. I regard this, honestly, as a question of humanity against vested interests. If I were in business and I could not run my business so as to return a reasonable profit and to give proper remuneration and compensation where necessary to the worker, I should feel inclined to get someone else to carry on my business for me. The whole question of the insurance of the worker needs overhauling.
What are we going to do in the case of the little independent contractor? A case occurred the other day where an unfortunate workman was cleaning windows on his own account and was therefore in law an independent contractor. He 2316 went to a flat, the window sash of the flat came down, he was hurled into the area and badly hurt, but there was no question of insurance. He was not in the employment of the people living in the flat, he had no workmen's compensation, and the owners of the flat returned to Palestine, from where they had originally come. In these circumstances, it seems to me that the first thing we have to do is to make it absolutely certain that every workman is adequately protected. I speak absolutely from an impartial point of view. I appear regularly on both sides, for employers and employed, but I can only say that I am more and more convinced that we must do something in regard to this question.
I feel that the existing flaw in the present Workmen's Compensation Act is not so much the point which has been put forward by the hon. Member for Llanelly but that if you have to advise men who have received such injuries that they never can get back to work it is infinitely better in those circumstances nine times out of 10 to proceed, if you can, either by breach of statutory regulation or common law, because a man will receive a lump sum which will enable him to make a new start in life, possibly in business, and so replace his lost earning capacity in the trade which he can never follow again. We ought to do all we can in these cases to guard men against the danger of dropping into workmen's compensation when in fact the man has a better remedy either at common law or by breach of statutory regulations. Hon. members know what happens immediately after an accident. The Law Society have taken steps to restrict the activities of unauthorised touts but unless the undertakers representative arrives first the insurance company's representative often persuades the injured man or his relatives to accept benefit under the Workmen's Compensation Acts, when he has a good remedy at Common Law, with the result that the insurance company may ride off with a comparatively small payment. It may be true that hard cases make bad law, but I say without fear of contradiction that in this instance bad law makes even harder cases. Hon Members who like myself represent industrial constituencies know that there are many maimed men in the hospitals and in the streets at the present moment whose workmen's compensation is running out, 2317 and whose claims at Common Law have been defeated by the doctrine of common employment. I say that it is in the interests of the working man that this Bill should pass. I conclude by saying that I shall go into the Lobby in favour of it with a clear conscience and give it my unqualified support.
§ 1.38 p.m.
§ Mr. Macquisten
I do not agree with the hon. and learned Member for Warrington (Mr. Goldie). I think this is a dangerous Bill. The last thing I want to see is that great masses of the people should have the chance of going into the law courts. The difference between litigation and workmen's compensation is the difference between collective security and going to war. Litigation is no good to those who engage in it, and this Bill will really enfranchise litigation and create a great deal of work for great numbers of the legal profession. I am old enough to remember the first Employer's Liability Act, which came into operation in the eighties. A new branch of practising solicitor came into being, but it also meant that very little of the actual compensation reached their clients. It was a scandal for quite a long while. Then a more beneficial idea came in, and that idea was to prevent working men getting into litigation in the law courts. That was really a wise decision, and that is why the Workmen's Compensation Act was passed. It is true that you can do nothing unless a man is working, but the advantage of it is that the sum is more or less certain. If this Bill passed it would be a very different matter, and the cost and expenses would be enormous.
How is an employer to tell when an accident is to take place? An accident may take place on board ship in the Far East. How is it possible to get that case decided without an expenditure totally incommensurate with the actual sum which may be ultimately recovered? I think the Bill will create a very dangerous situation for men and employers. Under the Workmen's Compensation Act the workman has the compensation which is due, but if he chooses to go to common law and loses his case, then his workmen's compensation is taken for the purpose of paying the expenses. That is only right. He cannot have it both ways. I happen to know of em- 2318 ployers who have given a substantial subsidy to a workman to proceed by common law when another contractor has been involved rather than pay workmen's compensation. There was, of course, a set-off against the loan. But it is a dangerous thing to let a man who has workmen's compensation due to him go to common law unless the case is so absolutely clear that there can be no doubt about the result. You cannot always, however, decide in advance whether the man is absolutely certain to win his case.
I quite agree that the hon. Member has done right in promoting the Bill if only for the purpose of appealing for a much more liberal and generous system of workmen's compensation. That really is the way to approach this problem, but whatever you do, leave the masses of the people out of the courts. It may be a useful Bill for a very deserving class of people to whom I happen to belong, but as I am not practising now, I am able to take a quite impartial view of the matter. I hope we shall not put the temptation in the way of the masses of the people to go to litigation. There will be so much litigation under the Bill that, in my opinion, it is a very left-handed advantage, a very Hibernian rise, for the working classes.
§ 1.43 p.m.
§ Mr. T. Smith
The hon. and learned Member for Argyllshire (Mr. Macquisten) need have no fear about the working classes. There are very few working men who can afford to indulge in litigation on their own account, and all sensible working men are members of a trade union. Most trade unions pay considerable attention to the question of litigation regarding workmen's compensation and before they go to court they take legal advice. It is only when they have been assured that they have a sporting chance of winning the case that they go to law.
§ Mr. Smith
Judges, of course, are human just like lawyers, and they differ just as politicians do. As a matter of fact, there have been occasions when we have gone to court with what we thought was a cast-iron case and have been unsuccessful, and there have been cases when we thought we had not got much 2319 chance when we were successful. The hon. and learned Member always gives me the impression of a man with a progressive mind, but he usually votes against all progressive measures. I prefer the hon. and learned Member for Warrington (Mr. Goldie) whose speech is one which every hon. Member on this side will welcome. That goes to show that there are supporters of the Government who recognise that all is not well with the law in this matter. During the last 16 years, I have heard sympathy expressed by hon. Members opposite, but I have not yet seen them have sufficient courage to tell the Government what they think about it with regard to this sort of Bill. From our own experience in many cases, we know that if a small Bill of this nature had been the law, the dependents of those who have been killed and those who have been seriously injured would have received far higher benefits than they have received under the Workmen's Compensation Act.
The case for the Bill was put so cogently and clearly by my hon. Friends who moved and seconded the Motion for the Second Reading that there is no need for me to put the case further. I wish to deal with the argument that the Bill would place an undue burden on industry. That is an argument which has always been made by hon. Members opposite with regard to this type of Bill. I spent a little time in the Library reading Debates on similar Bills, and I found that three years ago the Attorney-General at that time said that if the Bill then under discussion became law, the burden on industry might be so heavy that it might injure the export trade of the country. I do not mind making the assertion that the political history of this country shows that the employers have used this House to safeguard their own interests and that they have never yet been generous in their legislation towards those who are killed or injured at work. In 1923, when the present Workmen's Compensation Act was being discussed in the Standing Committee, I drew up a summary of statements made by hon. Members of the Conservative party against the first Workmen's Compensation Act, and I found that the director of the colliery company at which I worked had put forward the fantastic argument that if that Bill became law, it would not only 2320 destroy thrift, but would close down every friendly society, close down collieries, and bring general ruin to industry. Such a statement might lead one to believe that the Bill that was being discussed at that time was of a revolutionary character.
What was the first Workmen's Compensation Act? The greatest amount that a worker could get under it was 20s. a week for total incapacity, but he had to be off work for three weeks before drawing the first week's compensation. When I was 18½ years old, I was buried in the pit, and as a result of that, one of my arms is twisted. I was away from work three weeks before I drew the first week's compensation, and for two weeks I did not get anything. Under that Act, the most that a dependant could get if a man was killed was three years' earnings or £300, and let it be remembered that every penny piece of the weekly compensation paid between the time of the injury and the time of death had to be deducted from the £300. Yet Conservative Members, employers of labour who left fabulous sums when they died, said that the Bill would place a burden on industry which it could not bear. I wish the hon. and gallant Member for Barkston Ash (Colonel Ropner) were in his place now. The hon. and gallant Gentleman represents a neighbouring constituency to mine, and I make him a fair offer that I am prepared to debate with him in his constituency on any Sunday morning, or at any other time, the speech which he has made to-day against this Bill and his general attitude towards workmen's compensation.
It is time the House faced some very fundamental problems concerning workmen's compensation. In my opinion, the flaw in workmen's compensation in this country is that compensation is not paid for loss of life or for loss of limb, but for loss of earning capacity. [An HON. MEMBER: "Partial compensation is paid!"] There is no doubt that the time has come when there should be an amending Bill. I wonder whether the Attorney-General knows what is the position in this respect at the present time. There are hundreds of thousands of men in all industries who are drawing less than 30s. a week in wages, mainly on account of low wage levels and short time. When they are unable to work because of injury, they are compelled to 2321 go to the public assistance committees in order to get sufficient money to keep themselves and their families. Does not the hon. and learned Gentleman think it is time that industry bore its own burdens? Does he not think it is time that the ratepayers were relieved of this subsidy to an inadequate Workmen's Compensation Act? Is it not time that the National Government tackled this problem?
There is no doubt that the insurance companies do very well out of the premiums that are paid in respect of workmen's compensation. The miners employ a certain number of checkweighmen. We approached capitalist insurance companies; they told us what the premiums were, and we accepted them; but when we began to exchange notes pit by pit and insurance company by insurance company, we decided that we were paying too much in premiums. Therefore, we formed our own mutual indemnity society for the purpose of insuring our checkweighmen, and we were able to do that at less than one-half of the cost of doing it with the insurance companies.
I want to ask the Attorney-General whether the Government, in making their inquiries in regard to employers' liability and workmen's compensation, will inquire into some of the Acts of Parliament in operation in the British Commonwealth of Nations. Hon. Members on this side are often accused of not taking enough interest in the Empire, but in this matter we appreciate what is being done in the Empire. I have been examining some of the Workmen's Compensation Acts in the Dominions, where they run their own insurance schemes. In Queensland, for instance, they run their own insurance scheme, and when I look at the premiums that are paid, I am bound to admit that they are doing a very good stroke of business. In New South Wales, representative people could not believe me when I explained to them the provisions of our Workmen's Compensation Acts. They could not believe that in the old country the most a man can receive in weekly compensation is 30s. When I examined their law, I had to admit that I would like to see it in operation in this country. Under their Act, if a man is injured and his wages are more than £3 a week, he gets two-thirds of his average wages, but in addition to that, there is an allowance 2322 for the wife, if she is dependent upon him, of £1 a week, and 8s. 6d. a week for each child under 14 years of age. Moreover, the employers are liable for certain costs with regard to ambulances. The only maximum under the Act is a maximum of either full wages or £5 a week.
How does it come about, with all this talk about the burden on industry, that the Dominions can give better benefits to the workers than we do, and yet I have never heard the argument, wherever I have discussed the question, that it is unduly burdening industry? I hope that whoever replies for the Government will not turn down the Bill merely on the ground of cost. If, on the merits, you can defeat it, that is another matter. But do not excuse the rejection of the Bill on the ground that it may cost industry more than industry is able to bear. That is the historic argument which can be traced through successive Parliaments for the past 100 years. It has always been said, "We would like to make this or that reform, but we cannot afford it." I sincerely hope that the Bill will receive a Second Reading and ultimately become law, but whether it does or not, I hope the Government will recognise what is taking place in the country to-day as a result of the inadequacy of the Workmen's Compensation Acts and that, before the next Election, they will be big enough to bring before the House a compensation measure worthy of these men and the work which they do in industry.
§ 1.56 p.m.
§ Sir Arnold Wilson
I cordially agree with practically everything said by the hon. Member for Normanton (Mr. T. Smith) but little of it referred to the merits of the Bill, to which I propose to address myself in the first instance. The real point is—Are there or are there not two standards of justice at present in operation in regard to accidents and, if so, is this Bill a remedy? I speak with some reluctance and under a sense of duty for only 12 months ago I supported an identical Bill. For the past six months I have been studying workmen's compensation and its history, and I have reached the conclusion that this Bill would not have the effect of producing a single standard of justice, but would create fresh and, as far as the workmen are concerned, disadvantageous anomalies.
2323 In 1880, forced by public opinion and industrial experience, and the disgraceful state of affairs created by the doctrine of common employment we passed an Employers Liability Act whence developed, a Workmen's Compensation Act, under which negligence whether of the employé or employer or his agents was put on one side. Under the Workmen's Compensation Act no question of negligence on either side is raised, but the workman secures a certain sum in compensation—a sum which by universal consent, is at present, quite inadequate. To abolish the doctrine of common employment altogether would tempt the workman to seek to prove that there was no contributory negligence on his part and that the employer was at fault, by breach of the statutory regulations, by employing an incompetent person or by his own negligence in any one of a score of ways. I have the support of eminent lawyers in saying that the result would be more litigation and considerable dubiety.
I believe that, on balance, the proper course is to take the Workmen's Compensation Acts as they stand and extend them to another 5,000,000 or 6,000,000 employed persons. At present they apply only to 12,000,000 out of the 18,000,000 people employed in this country. At the same time, we should abolish the doctrine of common employment in its application to those persons who are not at present covered by workmen's compensation. At present, the doctrine of common employment applies to all members of the Army, Navy, Air Force and Police. It applies to persons earning more than £250 per annum otherwise than by manual labour; to casual employés otherwise than in particular businesses; to outworkers; to members of the employers' family living with him and lastly to persons temporarily hired from another firm. There are some 2,000,000 or 3,000,000 people earning £250 a year or less who are subject to the doctrine of common employment and who yet have not the benefit of workmen's compensation which the legislature has given to some 12,000,000 other people.
Fresh and comprehensive legislation is desired on both sides of the House. The number of trade unions wealthy enough and well-informed enough to handle the 2324 cases which would arise under the common law is limited. Trade unionists today number about 5,500,000 out of the 18,000,000 employed persons and 12,000,000 persons have the benefit of the Act perhaps. Not more than 3,500,000 of the 5,500,000 are in trade unions which are sufficientry well-off and well-organised to be able to ensure to their members the full benefit of the law. Therefore, it is necessary to offer more adequate protection to the working man, not only through the trade union but through the law courts. In the absence of the Home Secretary, to whom the greater part of this Debate is indirectly addressed, I can only hope that the Attorney-General will convey to his colleagues the general feeling that this Bill would not have been brought forward if there was any prospect of a comprehensive Government Measure dealing with the question.
The Debates on this subject for the last four years have all tended in the same direction, and either the Home Secretary or the Under-Secretary for the Home Department has repeatedly referred to the two Departmental Committees which were appointed some two years ago, one of which has just reported while the other is about to report. Those committees each deal only with a mere fragment of the subject, and the Home Office will not be well advised to base new legislation solely upon their reports, without taking into their confidence the House as a whole, either by means of a Select Committee or by means of a further committee of inquiry into the whole question of workmen's compensation on the lines of the Holman Gregory Committee of 1920. I have been reading the report of that Committee on which there were Labour representatives like Albert Smith, Fred Hall and Tom Shaw, men of immense experience of these Acts balanced by three members from the other side. They were content, I gather, to allow the doctrine of common employment to remain on the Statute Book, provided that the Workmen's Compensation Acts were extended.
§ Sir A. Wilson
The question before that Committee was whether or not the Government should introduce compulsory insurance. The Government got through 2325 the Workmen's Compensation Act on the basis of their 1923 report with little difficulty, but let them not think that they will get a Bill dealing with workmen's compensation through this House on the strength of two Departmental Committees, the evidence before one of which is not to be published, so that the House might be asked to accept the verdict of a committee consisting mainly of permanent officials and legal experts without access to the evidence in support of their contentions. I am sure that would be proceeding on the wrong lines.
It is true that this doctrine of common employment has been objected to from the earliest days. It has been condemned by Mr. Joseph Chamberlain, and by Mr. Herbert Asquith when he introduced the Bill of 1897; it was criticised by Lord Campbell. It was the creation of Sir James Scarlett, later Lord Abinger, a brilliant counsel who carried his arts of advocacy to the Bench with him—one of the very few judges whom this House has endeavoured to remove owing to his alleged inability to maintain a judicial attitude when on the Bench. He was a Whig, who opposed the Reform Act and held that a system of national education must inevitably fail. It is lamentable that a doctrine introduced under such auspices should have remained for all these years on the Statute Book. But were we to remove it now, all the remedial actions which we have taken to minimise that doctrine would be upset.
So far as concerns the burden on industry, I assert that the one burden that industry cannot bear is uncertainty. The burden could be carried easily by these great industries, which could insure against it, but I am not satisfied that it could be carried by the small employer, who is in a much more difficult position. Insurance companies will not quote a rate for them. When employers' liability was first introduced in 1880, the premium demanded was very high. The cost was estimated at a shilling a ton of coal; it came down to 6d. and later to 1½d. per ton, and I think it is now 1¾d.
It would be a great mistake for us to abolish the doctrine of common employment and tempt the workman to go for the larger sum which he could get under the Common Law. He would, I believe, be liable to heavy costs which, were he not successful, would have to be met from 2326 such sums as he might receive under the Workmen's Compensation Act. When an opportunity arises on the next ballot, cannot the Opposition agree among themselves to bring in a simple Bill such as the Workmen's Compensation (War Addition) Act of 1917, which in two Sections laid it down that all benefits under the existing legislation were to be increased by a certain amount, with retrospective effect? We are all agreed that the present scales are inadequate, and as to many defects of the present law, if we could have such a Bill for a moderate addition to all existing scales, I am convinced that it would get a Second Reading without a division.
§ Sir A. Wilson
It was not 75 per cent., I believe, but 25 per cent. There were two Acts. A rise of 25 per cent. is what is immediately required, but it would be out of order even in a Second Reading Debate to discuss what amount it should be. On those lines, I think we could make progress. It is generally anticipated that further burdens are to be placed upon the county courts. There is little doubt that that will bring them additional work; and if the county courts are to be further burdened, something should be done to take workmen's compensations cases out of the county courts, whether by means of the Bill put forward by the Labour party last year or otherwise. We want to see the end of medical referees deciding cases by themselves. We want a barrister, presiding over—
§ Mr. Deputy-Speaker (Captain Bourne)
Although a great deal of latitude has always been allowed in a Second Reading debate, I think the hon. Gentleman is now getting far beyond the bounds of latitude permissible.
§ Sir A. Wilson
I beg pardon. Drastic changes in workmen's compensation are the only alternatives to the Bill before us. That the latter would do good to those whom it is intended to benefit, I do not believe. I think it was Emerson who said that consistency is the hobgoblin of little minds. If I have learned better—and I think I have—if is the result of six months' study and listening to the debates in this House. Milton said: 2327Where there is much desire to learn there, of necessity, is much argument, much writing, many opinions for, opinion in the better sort of man is but knowledge in the making.I hope my contribution may be, even on this matter, "knowledge in the making."
§ 2.15 p.m.
§ Mr. Silverman
The House has listened with the greatest attention, as it always does, to the hon. Member for Hitchin (Sir A. Wilson), and I think we have all been listening with very great care to see what compelling reason it was that brought him to change his mind and to speak to-day, as he said, in the completely opposite sense to that in which he spoke last year. With the greatest possible respect I say to him that I think the House is left in complete ignorance as to what that compelling reason was. This is a matter with which the Workmen's Compensation Acts have nothing whatever to do. I do not know that I ought to agree with the statement of my hon. Friend the Member for Llanelly (Mr. J. Griffiths), that if there were a comprehensive Insurance Bill before the House this Bill would become unnecessary. It would still be necessary.
The point is this: The Workmen's Compensation Acts were intended to fulfil a quite different purpose from the purpose fulfilled by rights to bring actions for damages at common law In the case of workmen's compensation the legislature has made it a duty on the employer to insure the workman against the normal and natural risks of his employment, without any reference whatever to negligence on either side, and although everyone agrees that the present law of workmen's compensation ought to be amended and that the remedies provided even for that purpose are too low and too limited, I have never yet heard anyone suggest as practical politics that, however comprehensive your scheme for workmen's compensation became, it would put a man in the same position, where no negligence is alleged or proved, as a man is in where he is not necessarily a workman and where he suffers serious injury by reason of the fault of another. I have never heard of workmen's compensation legislation that would give, besides full out-of-pocket damages, full damages for pain and suffering or loss of expectation of life, and all the other things that a man who is injured by reason of the fault of another can now claim.
2328 This little Bill is intended to fulfil a purely limited purpose. It has been said time after time to-day that all we are seeking to do by the Bill is to put a workman in exactly the same position as he would be in if he were not a workman. I notice that the Bill is entitled:A Bill to amend the law relating to the liability of employers to their workmen for injuries caused by the negligence of fellow workmen.I say with great respect that that is not a good Title. The Bill ought to be called:A Bill to amend the law relating to the disability of workmen in claiming damages from their employers in circumstances where, if the applicant were not a workman, the employer's liability would be beyond dispute.It is not a proposal to put further burdens upon the employer at all. It is a Bill to relieve a very small class of people from disabilities under which they ought not to suffer. We have been listening in vain throughout the Debate for any argument or reason directed to show that that proposal is not a just proposal. Some hard things have been said about lawyers, unjust in this instance beyond the slightest doubt, because I have no hesitation in saying that if this question were left to a vote of the legal profession, or if it were left to be considered by the judges of the High Court, the doctrine of common employment would soon be a bad memory. It is not a question whether or not it was the lawyers who originally created the doctrine. That is a matter of dispute. But it is not the lawyers who are responsible for its continuance. There is not a judge of the High Court who would not readily welcome its abolition. What stands in the way of removal of this excrescence of the law is not the legal profession, but this House. It becomes an extremely difficult argument for anyone in this House, if he says hard things about the lawyers, when he just remembers that it is this House and not the lawyers who stand in the way of an admittedly necessary reform.
The hon. Member for Hitchin said he could not see how anyone would be benefited if the Bill were passed. The hon. Member who moved the Second Reading referred to a case of which I have some professional knowledge, because I was the solicitor acting for the plaintiff. In that case the defendants had no defence 2329 whatever except the defence of common employment. Everything that has been said about the risks of litigation and the costs of unsuccessful litigation and all the rest of it, and the other damage that would ensue if only workmen were placed in the same position as other people in these actions, did not apply to that case. It was half-heartedly alleged that there was some contributory negligence, but in the Court of Appeal that allegation was abandoned altogether. But for this doctrine of common employment the plaintiff's case was so certain that there would have been no action. The only defence was the defence of common employment.
The High Court judge assessed the damages, under Lord Campbell's Act, at £1,579, and under the recent Act, which enabled a man to claim damages for loss of expectation of life, a further £500. The dependents of the deceased workman were a young widow, aged 32, and a little girl aged three. The damages as assessed by the High Court were over £2,000. The workman's compensation to which she would be entitled, assuming that the House of Lords does not restore the judgment of Mr. Justice Hawke, is exactly £355. Is it not clear that but for the existence of this pernicious doctrine, which the hon. Member for Hitchin does not defend, that widow and little child would have over £2,000 instead of £355? Is not that something which would be of very great benefit if this Bill were passed.
§ Sir A. Wilson
The hon. Member is asking me to answer him. This is a quite exceptional case, and the proper course to pursue is to raise the standard of compensation for death, for loss of expectation of life and for injury under the Workmen's Compensation Acts, to a much higher standard than the present, and not to perpetuate an anomaly of one particular kind.
§ Mr. Silverman
The hon. Member has not followed my argument. In that £2,000 there is not only the £1,579 based on dependency, but a further £500 for damage for loss of expectation of life. Does the hon. Member suppose that under any workmen's compensation scheme she could obtained that £500? The hon. Member says that nobody will be any better off. It is not true. Is the hon. Member asking the House not to pass a measure which will admittedly 2330 give the woman the whole of the amount to which a High Court judge says, she is entitled, and that it should not be given to her because at some given distant date some Government may introduce a Bill—which would not be retrospective—which would give higher benefits to people making quite different kinds of claim?
That brings me to the other argument that has been made about the question of cost. I am not one who thinks that it can be lightly swept aside, for it is an important matter. Claims under this Bill cannot arise unless the damage has already been caused. It is not a question of whether you can prevent the loss. If you can prevent it, it is the proper thing to do, but these cases arise only on the hypothesis that the loss has already arisen. The real question for the House to determine is not whether the loss should be incurred or not, but who should bear the cost that has already been involved. In the case to which I have referred there is a loss of £1,500. The question is not whether that loss ought to be saved; it cannot be, because the man is dead; the question is whether that £1,500 loss should be borne by the widow and her little girl or by the people who, but for this doctrine, would have to bear it.
It is no use people saying that the cost to industry will be enormous as if it would not exist but for this proposal. The question is whether the cost should be borne by the victim or by those who were responsible for the loss. If industry is really incapable of so organising itself as to be able to meet for its workmen the same claims it has to meet when they are made by other people, it is time somebody else stepped in and did it for them. With regard to the case I mentioned, we need not yet assume that the widow will suffer. The judge in the court of first instance thought the doctrine did not apply. Three judges in the Court of Appeal thought it did, and I hope that five judges in the House of Lords will agree with the judge ill the court of first instance when they have an opportunity of considering the point.
Some hon. Members have talked about the doubts, difficulties and litigation that would follow if this Bill were passed. There might be a number of actions, disputed decisions and appeals, but when full allowance is made for them, I venture 2331 to assert with some confidence that the crop of litigation, when the doctrine is abolished, will, because of its abolition, be as nothing to the crop of litigation that now goes on to determine what this doctrine means. Nobody knows. It has been impossible for the courts in 100 years of interpretation of it to put it in any logical, coherent and consistent form which can be understood and applied. Mr. Justice Hawke, in the case to which we have been referring, has described it as "this hateful doctrine," and he went to some trouble to try to make the case fit into some consistent and coherent principle. The Court of Appeal spent three days examining all the authorities from 1837 down to the case last year, and in the end found themselves so befogged by the wealth of conflicting authorities that they ran away from any attempt to apply the law and founded their decision on a different reading of the facts from that of the court of first instance. It is impossible for anybody who has not had to deal with it to know how doubtful and difficult the existing situation is, and it is certainly not true that, if we took this doubtful doctrine out of the common law, it would in any way increase the dangers, risks or doubts of litigation. On the contrary, it would remove them.
An offer has already been made to the hon. and learned Gentleman the Attorney-General. Let me make another. I do not know what attitude he will take to-day. I am certain, from our knowledge of him, that he will not attempt at this time of day to say that the doctrine is wise, right, sound or just. I am certain he will agree with every other lawyer on or off the Bench that the doctrine is pernicious, unwise, unsound and unjust, and that it is a great pity it ever happened at all. Whether he will go on and take the obvious step of saying that it is a bad thing and should be got rid of, I do not know. He may talk about workmen's compensation, but I hope I have convinced him that it has nothing to do with it. He may talk about cost, but I hope I have convinced him that the only thing to decide in regard to cost is who is to pay it. What is left to him? He may say that we cannot have it in this form and that there ought to be some limitation and modification of it, that there is a scrap of the principle which ought to be preserved.
2332 There is sitting a committee of judges who have been for some years reviewing the administration of justice. In the course of their recommendations they have from time to time gone beyond the question of administration and have introduced changes in the common law, as, for instance, in the doctrine of contribution. The method whereby if two motor cars jointly are at fault in a running down case both owners have to pay the contribution is an example.
I suggest that the Attorney-General should submit this doctrine to that committee and let them make it part of their report. If they recommend that the doctrine should be preserved, I am prepared to accept their decision and never support a Measure of this kind again. In return for that offer I ask the hon. and learned Gentleman to undertake on behalf of the Government that, if the committee of judges should recommend that the doctrine be abolished, he will introduce forthwith whatever Measure he deems to be necessary to secure its abolition. Surely that is a fair offer. It may be that this House is not a proper tribunal to decide. My hon. Friends and I represent the interest of people who may from time to time claim damages, and a great many people behind the hon. and learned Gentleman represent the interests of people who from time to time may be called upon to pay damages. Therefore, it may be said there is a little prejudice on each side. In those circumstances, what could be better than to submit the matter to a committee of judges, removed from the arena, with no axe to grind, with no interest in the matter, and say to them, "You have had great experience of the administration of justice; you are judges in this land; consider this doctrine; is it a right one or a wrong one? Is it just or unjust?" If they recommend that it ought to be abolished, the hon. and learned Gentleman ought to be prepared to abolish it, and to say so to-day.
Changes, I know, are in the air. I do not know when the hon. and learned Gentleman himself may perhaps cease to adorn the bench which he now occupies and perform other functions elsewhere; but small as this matter is I know of nothing which causes more minor tragedies among the working class than this doctrine, and I know of nothing that he would be more proud to remember 2333 than the abolition of this doctrine, once and for all, if he could associate himself with it during his tenure of that office. There is nothing that would redound more to his credit, nothing that would tend more to distinguish his occupancy of that high office, than that he should have removed once and for all from the law of this land a doctrine which has caused great suffering and great injustice and which nobody who is qualified to judge now defends.
§ 2.38 p.m.
§ Sir Alan Anderson
We have discussed this Bill, or one very much like it, several times in the last two or three years, and one of the advantages of those repeated discussions is that we can now cut out a good many of the preliminary observations which otherwise would be necessary. We have had the whole case exposed to us by men of learning and acquainted with the technicalities of the subject, and, therefore, I hope that I may be allowed to omit the technical part of the discussion and to come to what I think is really the important part. The essence of this question, which is of extreme importance to all of us who are interested in the well-being of our fellow-citizens and our industry, is, to my mind, How shall we best provide for the inevitable accidents of industry? I do not agree with this Bill at all. I feel that to move from the system of insurance to the system of making a rather chancy claim in the courts would be wrong. The doctrine of common employment is held up to ridicule, because on the frontier between the two systems, relying on insurance and going to the courts, some people are in a worse position in that they are insured under the present law. Frontiers always bring about awkward positions on one side and the other. We have a frontier in this House. Our learned brethren are quite clearly divided from many of the rest of us in their point of view on this particular problem.
I am not suggesting that there is any bad motive in a lawyer thinking that it is well for all disputes to come before the courts of law. To the shoemaker's wife there is nothing like leather, and a lawyer naturally thinks that the best decision is arrived at by bringing a case before a court of law. I do not. I think it is very much better to have a system of insurance, so that our people, when they are injured, shall not have to consider 2334 whether one of their mates was to blame for it, but shall merely have to consider how best they can get well. The same thought, I believe, was in the minds of many speakers on both sides. Many of the speeches appeared to me to be advocating a more comprehensive insurance. The weight of the complaint was not against the method of insurance but that the amount granted to an injured person was too little to compensate for the accident. That, I submit, is an entirely different question from the one raised in this Bill. Reference has been made to the cost. I am told that compensation at present costs about £12,000,000. I do not know how far anyone can make an estimate, but an estimate has been given to me that if this Bill became law possibly half the cases would come into the courts.
§ Sir A. Anderson
Well, I have no opinion about that, but I say this matter ought to be dealt with by insurance.
§ Mr. Jenkins
The whole point of the Bill is that there should not be a difference between a person injured who has not a contract of employment with an employer and a person who has a contract of employment. One can take action at common law and recover damages; the other, if he has a contract of employment, is prevented from doing so. There are two standards of justice.
§ Sir A. Anderson
I quite agree. I had written out a little oration, but so many of the points have been covered already that I thought it would be better for me to touch upon the ones which were most important. As the hon. Member has made that point, I would ask him to consider some cases which do arise. He says that there is different justice for one man as compared with another. There is. I have said so. There is a frontier drawn between a man who is in the industry and an outsider. Sometimes the man in the industry is better off, and sometimes the outsider. If insurance compensation was more complete the advantage would tend towards the man in the industry.
We have had submitted to us dramatic-cases of a man on a scaffolding dropping a spiked instrument which fell upon his mate below, and a man being hurt in a lift shaft. I will give nothing dramatic at all. Let us say that Messrs. A, Ltd., are 2335 employers and that they employ "B" and "C" and that "Z" is a casual visitor. "B" breaks his leg. There is no negligence. He gets workmen's compensation. "B" breaks his leg again—he is a very unfortunate fellow—and this time "C" was negligent. "B" has no case in common law, but again he gets workmen's compensation. "Z" comes into the works. He is a visitor trying to sell some machinery. He breaks his leg. There is no negligence, he simply trips up over his own feet. He gets no compensation. He is worse off than "B".
§ Mr. Jenkins
It might be that "Z," if he came within the workmen's compensation law, would be able to recover compensation from his own employer.
§ Sir A. Anderson
Possibly, but this man did not, you see. Let us take another case. In the first case "B" was better off than "Z."
§ Sir A. Anderson
"B" has recovered compensation, but "Z" has not recovered anything. The person "Z" who visited the works recovered nothing. Now we come to the anomaly. The reason for the difference is the intrusion of this person "Z" from outside. Again, "Z" comes into the works and this time "C" is negligent, "Z" breaks his leg and claims at common law. The judge takes the severe view that "C" is a very bad fellow and that "Z" ought to receive exemplary damages, which are given at the expense of the employer of C." Hon. Members will remember that "B," when "C" was equally negligent with him, received only workmen's compensation.
§ Mr. Pritt
I followed the hon. Member's illustrations from the beginning and I think they were absolutely right and fair, but it is wrong to say that you can get exemplary damages. If you want a good reason why "Z" should have a good sum in damages, it is that "Z" was the director of a shipping company, and was worth a lot of money.
§ Sir A. Anderson
I thought that point had been gone over before. I was straying over the frontiers into legality, and a legal brother comes and stamps on me. Avoiding the word "exemplary," let 2336 us say that "Z" gets swinging damages. All I wanted to say was that an anomaly arises at the frontier between the insurance system and the system of appealing to the court. There always will be anomalies at frontiers. I think the complaint of hon. Gentlemen opposite is not so much about common employment as about the level of insurance and whether the insurance is adequate. Perhaps I might address myself to that point. I am not going to argue that insurance in workmen's compensation is 100 per cent. adequate, or that it is intended to be. I gather that when workmen's compensation was brought in, the compensation was half the wages.
§ Mr. Silverman
Half the wages, with a maximum of 30s., so that if your wages were more than £3 you could not get half your wages.
§ Major Milner
Half the wages, not exceeding 30s. If a man is earning £5 a week the maximum compensation is still only 30s. per week.
§ Sir A. Anderson
When the Act was passed first it went to 20s. Half the wages were taken as the amount proper to be put upon the employer. I expect that in the minds of the people who framed the Act it was fair to put half the wages on to the employer, and to leave half to someone else to cover. Who should cover it? The workman himself, if he pleases. He can insure. The State can, if it pleases. We have passed on in our appreciation of what is necessary in dealing with this problem. We have moved on in the direction of a partnership among the workman, the State and the employer. I believe that workman's compensation was one of the first social laws. In it, the employer had put upon him the obligation of half wages. The next was the sickness and the unemployment side, in which the workman joined with the employer. To my way of thinking that was a wise thing to do.
§ Mr. Jenkins
The hon. Gentleman must be aware that if a man is injured and is in receipt of compensation, he is not entitled to sickness benefit under the National Health Insurance Acts.
§ Sir A. Anderson
The hon. Member did not quite follow what I was saying, which was that the only person who paid the premium was the employer, and that he paid up to half.
§ Sir A. Anderson
No, he was only half in insurance. It may be wrong to have him only half in insurance. We are growing up in our appreciation of what is wanted. The next Act was passed for health and unemployment. There were three partners, each of whom bore a fraction of the premium. In the course of this Debate the question of who should pay the cost has been raised. I think the hon. Member for Westhoughton (Mr. Rhys Davies) quoted the saying that the cost had to come out of wages. There seems to be a little doubt whether he said it or not, but if he did say it I agree with him. It appears to me to be beyond argument that there is a pool from which we can draw what is necessary for wages, for holidays with pay or for payment for accidents and compensation, but we cannot draw it twice over.
The only question which remains is how it is best to apply the pool and how one can best collect the premium. If you do it gradually you can put it on to enterprise without much trouble, and enterprise does not feel it because it is swallowed up in the ordinary costs. If you suddenly put on a large extra cost you are disturbing the business of the company, and that is bad. By the Bill hon. Members are, in my opinion, proposing to do something much worse than that. They are saying that in all these accidents which are quite inevitable although we hope the victim will receive proper compensation, he will have to go into court and the cases will have to be argued. The man will be kept in doubt for a long time about what he is to get, and the costs will be burdened by lawyers' fees. I think that is entirely wrong, and I shall vote against it.
§ 2.54 p.m.
§ Mr. Jenkins
The hon. Member who has just spoken has gone in some detail into the question of compensation, and has expressed the view that it would be better to rely upon an improvement of the Compensation Acts rather than to interfere with the doctrine of common employment. He expressed some satisfaction 2338 with the standard reached in compensation and gave the impression that he would be prepared to go some distance further, but only the distance that he thinks industry would be able to bear by the gentle application of any increases in cost. He said that there was a pool from which all these costs must be drawn, and that there is a limit. He is probably correct in saying that the pool is limited, but I think that the limit has not yet been reached. I hope it has not been reached, at any rate, and we have to face the fact that everybody who is injured in these days and is put off work is dependent upon compensation. If that person has a family it means, if he is without resources, that he must almost immediately have recourse to the Poor Law.
The true test of the attitude of hon. Members opposite with regard to workmen's compensation is their total disregard of the Holman Gregory Report when it was issued. In that Report there were recommendations to the effect that the compensation payments should be substantially increased. During the War, it is true, there were increases. The amount was raised from the old standard of £1 a week, which left every workman in poverty, even in pre-War days, first to a maximum of 25s. a week, and later to a maximum of 35s. per week; but, immediately there came a fall in the cost of living, this House took steps to reduce the maximum compensation from 35s. to 30s. per week, at which figure it stands at the present time. This Bill does not deal with that matter. Like previous speakers, I would much prefer a wider application of the principle of justice to the injured workmen than would be possible under this Bill even if it is placed on the Statute Book. But the Bill—and this is of importance—would place the employed person on exactly the same basis as a third party in an accident. That is all that it does, and I think there can be no reason at all for two standards of justice.
On this point we had a very helpful speech from the hon. and learned Member for Warrington (Mr. Goldie). It was outspoken and frank, and gave reasons why this defect should be met. The hon. and learned Member indicated with the greatest clarity the need which exists, and has existed for a considerable time, for the immediate removal of this injustice between person and per- 2339 son, between Britisher and Britisher. What is the case that has been put up against it? The Mover of the Amendment really made no case at all against the Bill, except perhaps that the cost of it had not been estimated. Frankly, I do not consider that that is an adequate reason. Would a judge who was deciding a case, and who recognised that justice was on the side of a certain person, say, "I have to consider the cost; I have to consider what is going to be the effect on the defendant if I agree to justice being applied"? No judge would take up that attitude on any case, and the House, in my judgment, ought to be fair in cases of this kind. One has seen cases in connection with one's experience in the mines. I have frequently known of cases in which outsiders have been able to claim damages at common law. The miner could not, but would have to go back to his compensation. One case within my own experience was that of a boy of 16, who was engaged with another workman in certain operations. They did something; there was an element of neglect in it, but the boy was not responsible; his right hand was blown off. Other people connected with the accident were able to secure damages, but the boy was prevented from doing so, and the result is that that boy is now in poverty, and will be in poverty for the remainder of his life, because all that he is able to get is payment on the basis of workmen's compensation. There are many cases of that kind, and the position is totally unjust to the individuals concerned.
There is another point to which the House ought to pay some attention. If a liability were imposed on the employer in case of neglect, it would have a tendency to improve the standard of safety. Sometimes there are cases where accidents are cheaper than safety. We have seen that on more than one occasion in various industries. I do not think that individual employers would consciously allow the standard of safety to fall, but it is allowed to drift from day to day till accidents occur—accidents that could very well be prevented. The inspectors of mines, in their reports and in Press articles, have called attention to the neglect of certain individuals in connection with accidents, and I think the conclusion has been arrived at that at 2340 least 50 per cent. of the mining accidents that occur to-day could be prevented if proper precautions were taken. That is a pretty heavy criticism of our system. But the main principle of this Bill, and the one which I want to stress, is that there are two standards of justice. That state of things should be altered. Suggestions have been made from the other side of the House this morning to the effect that, if the Attorney-General is able to say that a comprehensive Workmen's Compensation Bill will be introduced in the near future, we should not be very much concerned about this Bill. We have had no such undertaking yet, and our experience in the past has been that the attitude is precisely that of the hon. and gallant Member for Barkston Ash (Colonel Ropner), who this morning talked about the question of cost. Like others, I have read from time to time the whole history of the discussions in this House with regard to workmen's compensation, and on every occasion the one argument that has been advanced has been that of cost—that the cost would be too heavy for industry to bear. I remember one discussion in which it was argued most seriously that there was a likelihood of workmen's compensation in the mining industry costing up to eighteen pence per ton. Experience has proved that it is very much lower than that.
Another point which has been raised in the course of this Debate is that of the enormous waste that goes on in practice in connection with insurance companies. There was presented to the Holman Gregory Committee a record of the payments that had been made to the insurance companies in premiums to cover workmen's risks under the Compensation Acts over a series of years—if I remember rightly, about eight years. It was shown that about £32,000,000 had been paid to the insurance companies during that period, and only about one-third of that total had been returned to the workmen in benefits. I am sure the hon. Member for the City of London (Sir A. Anderson) will remember that, and will have studied it in connection with his investigations into the subject of workmen's compensation. There is waste even to-day, and I am inclined to the view that, if we could get to the bottom of the question of costs, medical, legal and administrative, we should find that more money is spent 2341 to-day on those costs than is spent in actual benefits for the workmen concerned. That ought to be prevented. As matters stand at the moment, the insurance companies have no personal contact with the workmen. I have not had any experience of people who can be said to exaggerate their ailments, but they are said by the insurance companies to be numerous. The companies go into the courts and spend fabulous sums of money in contesting these claims, making it extremely difficult for workmen to recover compensation. Mention has been made to-day of the difficulties that arise for persons who are not members of trade unions. I was rather surprised to hear one hon. Member say that, of the 5,000,000 or 6,000,000 trade unionists in this country to-day, not more than 3,500,000 are able to get good advice from their trade unions—
§ Mr. Jenkins
And money. I do not know on what that statement is based, but one does know that each trade union is entitled to obtain, and can obtain, the highest possible standard of legal opinion through the Trades Union Congress if it is in any difficulty about a compensation claim. Like many outside, we know, too, what happens in the legal world. I remember that on one occasion a man who was injured in connection with some buildings put his case in the hands of a legal gentleman. He succeeded in his case, and when compensation was paid he inquired whether the brick had fallen on his head or the solicitor's head; because the solicitor took the greater portion of the money.
That is a reason for organising the workman's compensation system on a good sound level, applying the greatest possible percentage of the benefit to the workman. We do not do that at present. There is substantial waste, and there is room for great improvement. The House ought not to be content with the knowledge that every workman who fails to work, as a result of injury, and who is without resources, has to have recourse to a charitable institution or to the Poor Law. I hope that the Attorney-General, if he is going to advise the House to vote against the Bill, will answer the challenge put to him from time to time, and say that the reason that the Government will not proceed with this Measure is, because 2342 it will go only part of the way, and that the Government are going to prepare a comprehensive Workmen's Compensation Bill, which will give justice to the workman and enable him to live on a reasonable basis when he is injured, instead of allowing him to be reduced to penury. Such a state of things as exists at present ought not to continue; and I am sure that no hon. Member on any side will dare to say that the industries of this country are not capable of lifting their injured workmen from the state of poverty they are in at present. After all, an injured workman's home is as costly as that of a man in employment; and I think it is unjust that either the workman himself or the members of his family should suffer as a result of an injury sustained by him in carrying out his industrial activities. I hope that we shall get a statement on which we can base some substantial hope for the future, as far as workmen's compensation is concerned.
§ 3.8 p.m.
§ The Attorney-General (Sir Donald Somervell)
This Debate makes me feel somewhat like an old Parliamentarian. Hon. Members, after telling us what Mr. Asquith said in 1893, have gone on to tell the House what the Attorney-General said in 1934. It is true, I think, that every year since that year, when I first took part in a Debate on a Bill of this kind, there have been discussions in the House on this subject. I think that everyone who studies those discussions will recognise that, on the whole, the quality has, from year to year, improved; and I would like to join with those who have congratulated the hon. Gentlemen who moved and seconded the Bill on the speeches they made. The House is familiar with their experience of the subject, but, apart from experience, the order and exposition of their speeches and the fairness with which they put the issues before the House were, I think, very much appreciated.
The broad detail of the position at present is familiar to all Members of the House—certainly to those taking part in this Debate. The fact is that there have been certain increases in what is called the common law principle of liability under the Employer's Liability Act—although there the amount is limited—and also, of course, under cases where there is a statutory 2343 duty under the Factories legislation, but that covers only a limited number of cases. The hon. Gentleman the Member for Nelson and Colne (Mr. Silverman), in the course of his speech, said that the doctrine of common employment inflicted great injustices upon the homes of certain members of the working classes. I want to ask the House of Commons to consider what cases exactly are covered, and to put them, if I can, in relation to the whole problem as I see it. I will take three or four cases in which the wage-earning member of the family is injured whether the injury incapacitates him for six months or a year does not matter for the purpose I am considering at the moment. The loss and hardship and the tragedy that may ensue for that household are exactly the same whatever the cause of the injury. Whether the injury is the result of the man's own negligence—negligent as we all are from time to time, fortunately as a rule without fatal results—whether it is due to the result of the negligence of someone, whether it is due to some failure to comply with the Factory Acts, or whether, if somebody else was negligent, he was negligent, too—what we call contributory negligence—all these circumstances are quite irrelevant when the man's wife and dependants have to face the hardships which the lack of wages coming into the house bring upon that household.
The hon. Member for West Middlesbrough (Mr. K. Griffith), with his usual mastery of the subject, spoke with apparently complete, confident familiarity of the principles of abstract justice and how they should be applied in this particular case. I am not as clear as he is as to where the principles of abstract justice lead. This Bill suggests that it is a principle of abstract justice that, if a man in a works is injured by the negligence of a fellow-workman, he should get far more damages than if he were injured in any other way.
§ Mr. Silverman
Is not the principle of abstract justice for which we are contending rather that a man's right to damages shall not be less when he is a workman employed by an employer, whoever did the damage, than if he were not such a workman?
§ The Attorney-General
It comes to this. The suggested principle of abstract jus- 2344 tice in connection with industrial accidents—it may be that you get away from industrial accidents on the public highway, so that different principles obtain, about which I shall have a word to say in a moment—and the effects of this Bill are that if, in an industrial accident, a fellow workman has been injured, the man should get far more damages than he would get in other circumstances. I am not sure that that is a principle of abstract justice, and certainly it is not so simple as that.
May I give an illustration in an entirely different field? We all know that a very large number of people are injured on the highways in motor car accidents. They can get damages only if they can prove that the motor car driver was negligent and that they were not negligent themselves. As a result, there is a vast mass of litigation, and a great deal of money is spent on that litigation. I have heard it suggested that it might be much better to have a general insurance system, under which anybody injured by a motor car on the highway could get damages whether the motor car driver had been negligent or not, or whether or not the person injured had been negligent.
It is said that by providing damages for anyone injured, whatever the circumstances, litigation would be avoided. Of course, the damages would be on a lower scale, but it is thought that that might be a more satisfactory way of dealing with the cases of a large number of people who are injured. I do not say whether that is a good idea or a bad one, but it is an idea which I have heard, and no doubt hon. Members have heard it mentioned as a possible solution of the motor car accident problem. That is the workmen's compensation principle—the principle that in industrial accidents you should give some compensation in all cases, irrespective of whether the injured person himself was negligent or a fellow-workman was negligent. That is a point which might be worth considering in deciding whether or not the House would be well advised to pass this Bill.
The hon. Member for North-East Derbyshire (Mr. Lee) said that at one time no parliamentary candidate could appear before an industrial audience without being asked whether he would vote for the abolition of common employment.
§ The Attorney-General
I thought the hon. Member was speaking from his own experience. No doubt that is true. I have made many speeches and answered a great many questions on almost every topic, but I never have been asked whether I would agree to abolish the doctrine of common employment.
§ The Attorney-General
I should have said precisely what I mean to say in the next ten minutes. It is worth while to ask ourselves why in the eighties and the early nineties everybody who appeared before an industrial audience was asked what they would do about the doctrine of common employment, and then to ask ourselves why comparatively few of us are asked such a question to-day. The reason is that the Workmen's Compensation Act and the workmen's compensation principle has been built up. In the eighties, when Parliament made a rather tentative attempt to solve this problem by eroding the doctrine of common employment, and in 1897 when they started the Workmen's Compensation Act principle, there was a great deal of discussion. Everyone realised that there was a problem to be solved, and the question was on what lines it should be solved. The broad question was—Shall we go on increasing the liability when there has been negligence on the part of a fellow-worker or shall we go in for compensation, negligence or no negligence, on a lower scale? That was how the people between 1880 and 1897 envisaged the matter. The question was whether Parliament should proceed by the way along which the authors of the Employers Liability Act suggested a short distance, or whether they should start out into an entirely new path of workmen's compensation. The decision was to strike into a new path.
§ The Attorney-General
I am much obliged to the hon. Member. When people talk about the doctrine of common employment it must be remembered that on the three occasions that Parliament has legislated on this matter, in 1897, in 1906 and in 1923, it did reaffirm the principle of common employment. The hon. Member stressed most strongly the view that the Workmen's Compensation Acts had nothing to do with it. I think they have a great deal to do with it. One can find evidence of that in one's own common sense, in the legislation of this country and in the legislation of other countries. There are many other countries where workmen's compensation principles apply. In Belgium workmen are debarred from their other remedies at law which they would have if they were not under the Act. Obviously, it is reasonable and sensible to say to those to whom you are offering employment, "You can either get damages assessed on the common law principle if you can prove that a fellow worker was negligent, or you can get damages on a lower scale, negligence or no negligence." The real point is whether that is a fair way of asking the House to approach the principle of workmen's compensation and this Bill, and if that is so, then I suggest that it would be a great mistake to give the Bill a Second Reading.
§ Mr. J. Griffiths
That is the way in which the matter came before the House in 1893, but the alternative was workmen's compensation. In 1897, the amount of compensation was relatively much fairer than it is under the present Act.
§ The Attorney-General
In saying that the hon. Member says that he thinks the rates under the present Act ought to be increased, but that is irrelevant to this Debate. If the Workmen's Compensation Act principle is the right solution, it would be extraordinarily stupid to pass a Bill which is wrong in principle and which would obviously give employers the strongest possible ground for resisting increased benefits under the Workmen's Compensation Act, at any rate immediately after the Bill had become law. As hon. Members familiar with the history of this matter know, one of the troubles arising from 1880 to 1897 was contracting out of employers' liability. This Bill contains no prohibition as to con- 2347 tracting out, and if it became law, every employer could contract out at once. That does not seem to be a satisfactory method of approaching the matter.
§ The Attorney-General
It may be a Committee point according to the Rules of procedure, but the extent to which that point loomed in the early discussions is not what we call a Committee point in the ordinary sense of the word. Another point, which I agree is not conclusive in itself, is how far, if this Bill were passed, it would undesirably involve injured persons in litigation which in many cases might be expensive and in many cases unsuccessful. I think it is one of the great advantages of the workmen's compensation scheme, that whatever the terms may be at any given time, it avoids the necessity of allegations and proof of negligence against fellow workmen. Negligence is always a difficult thing to prove, except in the most palpable cases. Naturally, no one, particularly a workman whose future livelihood may depend on the character he gets for careful work, likes to admit that he was careless and that that is why his mate broke a leg or sustained some other injury. It is an allegation which is resisted if there is any doubt about it, in all except the plainest cases.
There has been some discussion as to whether 5 per cent. or 50 per cent. of cases would go to court if the Bill were passed. I cannot state any opinion on that and I have no figures, but undoubtedly in the sort of cases that would arise under the Bill, where negligence would probably be an issue and where the amount of damages very likely would be an issue, a very much larger proportion of cases would go to the courts. That is a fact which ought to be borne in mind. On the question of cost the hon. Member for Normanton (Mr. T. Smith) made an appeal to me, to which I hope I am responding, to deal with the Bill on its merits and not on the ground of the burden imposed on employers. I agree with him that that is how it ought to be dealt with, but I should have thought that hon. Gentleman opposite would know much more than I do about the possible effects of the Bill in this 2348 respect, and I should have thought that in the coal industry, for instance, the burden would be very great. You might get a case such as the particular case referred to by one hon. Member opposite, and that, of course, illustrates the great difficulty which an employer would have in insuring.
§ The Attorney-General
They have indemnity societies for a limited scale of compensation under the Act.
§ Mr. Jenkins
Are they not also covered in respect of accidents due to explosions; and does anything stand in the way of that form of insurance being extended?
§ The Attorney-General
I agree that they are covered in that way, and there are also, of course, third party risks. But hon. Gentlemen opposite who have, no doubt, gone into the problem carefully will agree that the extra uncertain liability imposed by the Bill in a great many instances is very difficult to estimate in advance. The way I look at the question is this. Assuming that I have carried the House with me so far, and, also assuming that, at this given moment of time, industry as a whole could bear a certain extra burden—that being the amount which this Bill would put upon it—I have not the slightest hesitation in suggesting that it would be better to ask industry to shoulder that burden by way of improved conditions under the Compensation Acts than by way of meeting the limited number of cases which this Bill would cover. A number of special points have been raised. The hon. Member for Llanelly (Mr. J. Griffiths) dealt with the interesting question of those cases where employment is being pooled, where work is being spread over, giving three days a week to everybody instead of five days a week to a certain number, and the effect of that upon the compensation.
§ The Attorney-General
That is a point which I should have thought would arise as a question of workmen's compensation. The hon. and learned Member for Warrington (Mr. Goldie) and the hon. 2349 Member for West Middlesbrough (Mr. K. Griffith) dealt with this question of the doctrine of common employment in what I might call good old legal style, but it seemed to me that they both missed the real point, namely, whether increasing the benefits under workmen's compensation is an alternative to, and not a substitute for, the common law liability in cases where a fellow-workman has been negligent. I did hear the hon. Member for West Middlesbrough, but I did not hear the hon. Member for Warrington.
§ Mr. K. Griffith
I think the hon. and learned Gentleman is doing me an injustice, because I specifically said that when workmen's compensation was introduced it was always introduced as an addition and not as a substitution.
§ The Attorney-General
That was an assertion which certainly does not accord with what hon. Members opposite say, which is that it was regarded as an alternative.
§ The Attorney-General
No, though I have no doubt that a lot of suggestions were made. The hon. Member for Hitchin (Sir A. Wilson), who speaks with great knowledge and authority on these matters and who has made such an exhaustive study of them, has undoubtedly moved in the direction of the suggestion which I am making to-day and have made previously in this House, and I would point out that I have remained where I was and that he has advanced very much towards us. I do commend, in view of the hon. Member's interest in, knowledge of, and sympathy with the cases dealt with by this branch of the law, the fact that he has come to this conclusion, that this would be an unwise step to take, having regard to the general future of the problem and the general aim which we all have to see it dealt with on progressive lines.
2350 I have been appealed to whether I would not undertake to have a comprehensive review of the Workmen's Compensation Act. I can give nothing of the kind, and no one expected me to, I am sure. The matter was dealt with by the Under-Secretary of State for the Home Department in a recent Friday debate. But, with all respect, what has that to do with it? If this Bill is wrong in principle, if this Bill is inconsistent with the general method of advance embodied in the Workmen's Compensation Act, it would surely be extraordinarily stupid to pass it simply because some hon. Members think the Workmen's Compensation Act is now a long way behind what it ought to be. Those who say that the Workmen's Compensation Act ought to be reviewed should, I suggest, bring pressure to bear on those who are in a position to have it reviewed and reconsidered. The real question here is whether this Bill would be an addition to the general approach which has been made over all the fields of this problem by our legislation in the last 35 years. I submit that it would not, and that the right method, if any further advance is to be made and if any further money is to go in compensation to those who suffer accidents in the course of their employment, is to impose that extra burden and spread that extra compensation on Workmen's Compensation Act principles and not by giving a right to Common Law damages to those who can prove negligence on the part of their employers.
§ Mr. A. Henderson
The hon. and learned Gentleman told the House that one of his objections to this Bill was that it was permissible to have the system of contracting-out. Is it not a fact that since the passing of the Shop Closing Act of 1902 the right of the employer to compel his workmen to contract-out of the Employers' Liability Act has been considerably restricted, by reason of a provision in that Act making it unlawful for the employer to make it a condition of the contract of employment that the workmen should contract-out of his rights under the Employers' Liability Act? Is not the objection raised largely academic, therefore?
§ The Attorney-General
The hon. Member may be right in what he said. I have not in my mind the details of the Act to which he refers.
§ 3.41 pm.
§ Mr. Rhys Davies
I have listened to practically the whole of this Debate and it has followed the line of previous debates I have heard on the same subject. It would be sheer impertinence on my part to try to deal with the technical difficulties connected with this legislation, and consequently my approach will be more from the humanitarian and common-sense point of view. The hon. and learned Gentleman the Attorney-General has left the House in a difficulty. If hon. Members opposite were free to vote as they liked on this Bill, they would begin to wonder which of the two legal luminaries we have heard they would follow. The Attorney-General has told us that this Bill is wrong in principle, while the hon. and learned Member for Warrington (Mr. Goldie), who happens to be the Recorder for the City of Manchester, where I live—that is sufficient evidence that he is more intelligent than the average individual in this House—tell us that this is just the kind of Bill that ought to become law at once. Whom are we to believe?
I have great respect for the intelligence, capacity and efficiency of the learned Attorney-General, but I have read what was said by the late Mr. Asquith in this House on this subject. I sat quite close to him on more than one occasion. I hope the learned Attorney-General does not mind my saying that Mr. Asquith very definitely put the opposite point of view from that which he has put to-day. I cannot conceive that, however clever, astute or efficient the Attorney-General is, he is up to the standard of the late Mr. Joseph Chamberlain and the late Lord Oxford. Really, therefore, we are in a quandary as to what to do on the evidence which has been given to us against this Bill.
This is a Private Member's Bill and the case for it has been extraordinarily well put. I think it has been put by my hon. Friends better to-day than on any previous occasion, and the arguments on the other side have been the weakest that I have heard at any time. We were interested to see whether there was any hope in the speech of the Attorney-General. He left us a sad and sorrowful House of Commons, without a gleam of hope except the one familiar thing. I knew what the attitude of the Government 2352 would be as soon as I found that two shipowners got up to oppose the Bill—two Government loyalists, one of them representing Scotland, and the Bill, let it be noted, is not to apply to Scotland at all. I guessed what would happen. The hon. Members said that they would welcome a comprehensive measure dealing with workmen's compensation. I guarantee here and now that no matter how comprehensive a scheme was presented to cover workmen's compensation risks, so long as this National Government is in power it will oppose it. According to the Government we are always in the wrong train, the wrong road or going to the wrong place. The hon. and learned Gentleman left his supporters in a quandary.
I have only one or two points of interest in this Bill, and I would be a foolish person to try to dwell upon the technicalities of the law, but I will put one point. A report is issued every year by the Home Office covering the income and expenditure under workmen's compensation and employers' liability. I notice that the hon. Gentleman the Member for the City of London (Sir A. Anderson) quoted a part of a speech of mine in which I am supposed to have said that all these charges on employers for social services, premiums for workmen's compensation and employers' liability come out of the wages pool. If he had read my speech in full he would have found something else—and this is an argument that ought to be borne in mind in connection with a Bill of this kind. It is that ever since we began in this country to call upon employers to pay contributions for workmen's compensation, health insurance, pensions and unemployment benefit, they have always said that the effect of imposing these contributions was to reduce their profits. It has done nothing of the kind. When the contractor for a big undertaking makes an estimate, all these costs are put down as charges he must meet before he comes to his profit and loss account. The employers, capitalists and financiers are not one penny the worse off by the imposition of any of these charges. If anything, they have made more profits by virtue of the fact that they have been imposed on them.
A point has arisen about the cost of administration and the premiums that are now being paid to insurance companies to cover workmen's compensation risks 2353 and employers' liability. The figures in the Home Office report referred to show that if you exclude the money expended upon arbitration, medical referees and legal costs by the insurance companies, I would say, if an account were taken of the actual payments, that for every pound paid in premiums to cover the workmen's compensation risk by employers to insurance companies, not more than 10s. comes back to the injured worker. A point occurs to me in connection with these cases that bears upon the principle enunciated in this Bill. I am secretary of a health insurance society and we get cases over and over again like this. A member of ours, a workman, may have a claim under the Workmen's Compensation Acts, and he cannot get compensation for some legal reason or other. All these cases immediately come upon the sickness fund of the approved societies, when, in fact, the approved societies are satisfied that the claimants ought to be drawing workmen's compensation. I say, therefore, to the hon. and learned Gentleman that industry ought to bear more of the responsibility of its own industrial wreckage, and if this Bill can do anything to achieve that object it ought to be passed. I cannot understand the argument "You must not pass this Bill. Why not get a comprehensive scheme?" That is an old dodge. I have heard that said over and over again. It is like a man saying to his wife, "We must not build a house until we are able to erect a palace." The hon. and learned Gentleman has given us no hope at all.
I am told, though I cannot vouch for it, that in the Civil Service an employé of the Government is not entitled to workmen's compensation, that in spite of that a workman employed by the Crown secures some payment as an act of grace. There is no art of grace in industry at all. Either a man gets workmen's compensation or he fails. In this Debate somebody drew a comparison between the workman and the soldier. What happens in the Army, the Navy and the Air Force? There is no argument of common employment there. It seems to me that it does not matter how a soldier meets with his injury. He gets his pension by virtue of the fact that he is incapacitated. The day will come when the nation will do at least two things—and this is all I should like the House to accept from me as one who had very little education on 2354 these problems but has studied to some little extent, and I give it for what it is worth: There will be no satisfaction to the workpeople of this country until we have taken workmen's compensation entirely out of the hands of those who make a personal profit out of it. It is a monstrous thing that 50 per cent. of the premium income for workmen's compensation and employers' liability is spent on lawyers, doctors, administration and profit. In the case of health insurance, which covers a far larger number of people that workmans' compensation, the total administration cost is not 50 per cent. but more like 15 per cent., I should say.
It would be a good thing to clean up the whole business of workmen's compensation and wipe out a great deal of this legal paraphernalia. I am not against lawyers, but I am glad to say I have never been in their hands. When a workman is injured and he is not entitled to workmen's compensation for damages at common law he falls to be dealt with' under the National Health Insurance scheme and the lawyers do not come in at all. He can be paid his benefit for—how long? Probably 20, 30 or 40 years, and the lawyers do not appear on the scene at any time. The day will come when, I hope, all parties will join together to lift this question entirely above the squabbles which go on between members of the legal profession at the expense of the injured workmen. As I have said, I do not know sufficient of workmen's compensation law to argue this matter from a technical point of view. This is a private Member's Bill and all the Members of this party will vote for it. We feel very strongly about it, and I tell the right hon. Gentleman it is not sufficient answer, when a section of the community feels that it has a genuine grievance, to say that the principle is wrong, merely in order that the Government may have their own way.
§ 3.56 p.m.
§ Mr. Robert Gibson
I hope that the Bill will receive a Second Reading in spite of the fact that it does not apply to Scotland. I understand that the part of the Bill is there because of some misapprehension. I understand also that the Bill is a reprint of a Bill of Sir Walter Greaves-Lord and that the original Bill contained the same restriction. The doctrine of common employment applies 2355 to Scotland although it had its origins in an English case. The House of Lords has applied the doctrine of common employment in Scottish cases. There was a recent case last year, mentioned by the hon. and learned Member for North Edinburgh (Mr. Erskine Hill). While I hope that the Bill will receive a Second Reading by a very large majority, I hope, also, that in Committee the Bill will be extended so as to apply to Scotland. Many suggestions have been made from the other side why the Bill should not receive a Second Reading. I have listened lo every word that has been said to-day,
§ and many of the arguments were mutually destructive. We were told that there would be a better Bill coming on at some time, but not what the Bill would be. Hon. Members on the other side propose to defer the better solution of this problem to the Better Land. The proper retort to them is that if, in the words of Ole Bill, they know of a better hole, let them go to it, so that something better may be done.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided: Ayes, 122; Noes, 142.2357
|Division No. 133.]||AYES.||[4.0 p.m.|
|Adams, D. (Consett)||Griffith, F. Kingsley (M'ddl'sbro, W.)||Noel Baker, P. J.|
|Adams, D. M. (Poplar, S.)||Griffiths, G. A. (Hemsworth)||Oliver, G. H.|
|Adamson, W. M.||Griffiths, J. (Llanelly)||Owen, Major G.|
|Alexander, Rt. Hon. A. V. (H'lsbr.)||Groves, T. E.||Parker, J.|
|Ammon, C. G.||Guest, Dr. L. H. (Islington, N.)||Parkinson, J. A.|
|Attlee, Rt. Hon. C. R.||Gunston, Capt. Sir D. W.||Pethick-Lawrence, Rt. Hon. F. W.|
|Banfield, J. W.||Hall, J. H. (Whitechapel)||Price, M P.|
|Barnes, A. J.||Hardie, Agnes||Pritt, D. N.|
|Barr, J.||Harris, Sir P. A.||Richards, R. (Wrexham)|
|Batey, J.||Harvey, T. E. (Eng. Univ's.)||Ritson, J.|
|Bellenger, F. J.||Hayday, A.||Robinson, W. A. (St. Helens)|
|Bann, Rt. Hon. W. W.||Henderson, A. (Kingswinford)||Sanders, W. S.|
|Benson, G.||Henderson, T. (Tradeston)||Seely, Sir H. M.|
|Broad, F. A.||Herbert, A. P. (Oxford U.)||Shinwell, E.|
|Brown, C. (Mansfield)||Hicks, E. G.||Silkin, L.|
|Cape, T.||Jenkins, A. (Pontypool)||Silverman, S. S.|
|Charleton, H. C.||Jenkins, Sir W. (Neath)||Simpson, F. B.|
|Chater, D.||John, W.||Smith, E. (Stoke)|
|Cluse, W. S.||Jones, A. C. (Shipley)||Smith, Rt. Hon. H. B. Lees- (K'ly)|
|Cocks, F. S.||Jones, Sir G. W. H. (S'k N'w'gt'n)||Smith, T. (Normanton)|
|Cove, W. G.||Jones, J. J. (Silvertown)||Sorensen, R. W.|
|Daggar, G.||Kelly, W. T.||Stephen, C.|
|Davidson, J. J. (Maryhill)||Kennedy, Rt. Hon. T.||Tate, Mavis C.|
|Davies, R. J. (Westhoughton)||Lathan, G.||Taylor, R. J. (Morpeth)|
|Davies, S. O. (Merthyr)||Lawson, J. J.||Thorne, W.|
|Day, H.||Leach, W.||Thurtle, E.|
|Dobbie, W.||Mabane, W. (Huddersfield)||Tinker, J. J.|
|Ede, J. C.||Macdonald, G. (Ince)||Viant, S. P.|
|Edwards, Sir C. (Bedwellty)||McEntee, V. La T.||Walkden, A. G.|
|Evans, D. O. (Cardigan)||McGhee, H. G.||Walker, J.|
|Evans, E. (Univ. of Wales)||MacLaren, A.||Watkins, F. C.|
|Frankel, D.||MacMillan, M. (Western Isles)||White, H. Graham|
|Gallacher, W.||Marshall, F.||Whiteley, W. (Blaydon)|
|Gardner, B. W.||Mathers, G.||Wilkinson, Ellen|
|George, Major G. Lloyd (Pembroke)||Maxton, J.||Williams, T. (Don Valley)|
|George, Megan Lloyd (Anglesey)||Messer, F.||Wilson, C. H. (Attercliffe)|
|Gibbins, J.||Milnar, Major J.||Windsor, W. (Hull, C.)|
|Gibson, R. (Greenock)||Montague, F.||Young, Sir R. (Newton)|
|Goldie, N. B.||Morrison, R. C. (Tottenham, N.)|
|Green, W. H. (Deptford)||Muff, G.||TELLERS FOR THE AYES—|
|Greenwood, Rt. Hon. A.||Nathan, Colonel H. L.||Mr. Lee and Mr. Ridley.|
|Grenfell, D. R.||Naylor, T. E.|
|Amery, Rt. Hon. L. C. M. S.||Briscoe, Capt. R. G.||Cox, H. B. Trevor|
|Anderson, Sir A. Garrett (C. of Ldn.)||Brocklebank, Sir Edmund||Croft, Brig.-Gen. Sir H. Page|
|Assheton, R.||Brown, Col. D. C. (Hexham)||Crooks, Sir J. S.|
|Astor, Viscountess (Plymouth, Sutton)||Brown, Brig.-Gen. H. C. (Newbury)||Crowder, J. F. E.|
|Baillie, Sir A. W. M.||Browne, A. C. (Belfast, W.)||Davidson, Viscountess|
|Barclay-Harvey, Sir C. M.||Bull, B. B.||Dawson, Sir P.|
|Beamish, Rear-Admiral T. P. H.||Campbell, Sir E. T.||De la Bère, R.|
|Beaumont, Hon. R. E. B. (Portsm'h)||Castlereagh, Viscount||Denman, Hon. R. D.|
|Birchall, Sir J. D.||Channon, H.||Denville, Alfred|
|Blair, Sir R.||Chorlton, A. E. L.||Doland, G. F.|
|Bossom, A. C.||Conant, Captain R. J. E.||Duckworth, Arthur (Shrewsbury)|
|Bowater, Col. Sir T. Vansittart||Cooke, J. D. (Hammersmith, S.)||Dugdale, Captain T. L.|
|Brass, Sir W.||Courthope, Col. Rt. Hon. Sir G. L.||Duggan, H. J.|
|Duncan, J. A. L.||Kimball, L.||Russell, Sir Alexander|
|Dunglass, Lord||Latham, Sir P.||Samuel, M. R. A.|
|Eckersley, P. T.||Leighton, Major B. E. P.||Savery, Sir Servington|
|Edmondson, Major Sir J.||Lennox-Boyd, A. T. L.||Selley, H. R.|
|Elliot, Rt. Hon. W E.||Levy, T.||Smiles, Lieut.-Colonel Sir W. D.|
|Elmley, Viscount||Lloyd, G. W.||Smith, Bracewell (Dulwich)|
|Emmott, C. E. G. C.||Looker-Lampson, Comdr. O. S.||Smith, Sir R. W. (Aberdeen)|
|Evans, Capt. A. (Cardiff, S.)||McCorqucdale, M. S.||Smithers, Sir W.|
|Fildes, Sir H.||Maclay, Hon. J. P.||Somerset, T.|
|Flaming, E. L.||Macmillan, H. (Stockton-on-Tess)||Somervell, Sir D. B. (Crewe)|
|Fox, Sir G. W. G.||Macquisten, F. A.||Somerville, A. A. (Windsor)|
|Fremantle, Sir F. E.||Maitland, A.||Southby, Commander Sir A. R. J.|
|Furness, S. N.||Makins, Brig.-Gen. E.||Spens, W. P.|
|Gluckstein, L. H.||Margesson, Capt. Rt. Hon. H. D. R.||Stanley, Rt. Hon. Lord (Fylde)|
|Grattan-Doyle, Sir N.||Marsden, Commander A.||Stuart, Hon. J. (Moray and Nairn)|
|Greene, W. P. C. (Worcester)||Mason, Lt.-Col. Hon. G. K. M.||Sutcliffe, H.|
|Gratton, Col. Rt. Hon. J.||Mayhew, Lt.-Col. J.||Tasker, Sir R. I.|
|Grigg, Sir E. W. M.||Meller, Sir R. J. (Mitcham)||Touche, G. C.|
|Grimston, R. V.||Mills, Major J. D. (New Forest)||Tufnell, Lieut.-Commander R. L.|
|Guinness, T. L. E. B.||Moore, Lieut.-Col. Sir T. C. R.||Wallace, Capt. Rt. Hon. Euan|
|Hambro, A. V.||Munro, P.||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Haslam, H. C. (Horncastle)||Neven-Spence, Major B. H. H.||Waterhouse, Captain C.|
|Haslam, Sir J. (Bolton)||O'Neill, Rt. Hon. Sir Hugh||Wayland, Sir W. A|
|Heneage, Lieut.-Colonel A. P.||Orr-Ewing, I. L.||Whiteley, Major J. P. (Buckingham)|
|Hepburn, P. G. T. Buchan-||Palmer, G. E. H.||Wickham, Lt.-Col. E. T. R.|
|Higgs, W. F.||Petherick, M.||Wilson, Lt.-Col. Sir A. T. (Hitchin)|
|Hoare, Rt. Hon. Sir S.||Plugge, Capt. L. F.||Windsor-Clive, Lieut.-Colonel G.|
|Holmes, J. S.||Pownall, Lt.-Col. Sir Assheton||Wise, A. R.|
|Horsbrugh, Florence||Procter, Major H. A.||Wemersley, Sir W. J.|
|Hudson, Capt. A. U. M. (Hack., N.)||Ramsbotham, H.||Wright, Wing-Commander J. A. C.|
|Hume, Sir G. H.||Rankin, Sir R.||Young, A. S. L. (Partick)|
|Hurd, Sir P. A.||Reid, Sir D. D. (Down)|
|Keeling, E. H.||Reid, W. Allan (Derby)||TELLERS FOR THE NOES.—|
|Kerr, Colonel C. I. (Montrose)||Robinson, J. R. (Blackpool)||Colonel Ropner and Mr. Erskine Hill.|
|Kerr, H. W. (Oldham)||Ross, Major Sir R. D. (Londonderry)|
|Keyes, Admiral of the Fleet Sir R.||Royds, Admiral Sir P. M. R.|
Main Question, as amended, put, and agreed to.
§ Words added.
§ Second Reading put off for six months.
§ The remaining Orders were read, and postponed.2358
§ Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.
§ Adjourned at Eight Minutes, after Four o'Clock, until Monday next, 14th March.