§ SECOND READING.
§ Order of the Day for the Second Reading, read.
§ THE SECRETARY OF STATE FOR THE COLONIES (The Marquess of RIPON)
My Lords, the Bill of which I rise to move the Second Reading relates to a question which, as most of your Lordships are aware, has long been under discussion, and which has led to considerable litigation and many complaints by those, or a proportion of those, whose interests are affected by the legislation 54 regarding it. As your Lordships know, under the Common Law of this country an employer is liable for any injury that may accrue to a third person on account of the negligence of any one in his employ. For instance, if my coachman were carelessly to drive over and injure any person in the street I should under the law be liable for his negligence, and be subject to an action on the part of the person so injured. But there has grown up a different system with respect to the case of workmen as regards any injury they may suffer in consequence of the act of persons in the employment of the same master. Originally, I think I am right in saying, the law applicable to cases of that kind was the Common Law of the laud, to which I have just alluded. Years ago, when manufactures were carried on on a small scale and when the actual head of the establishment was in more direct personal communication with all his workmen than is possible under our existing industrial system, there was no difficulty in applying the law which rendered the master liable for any negligence of his own. But a great change has since taken place in the methods of our industry. Manufactures are carried on in large establishments or by great companies employing vast numbers of people, and it is, of course, impossible that the heads of those establishments can now be in the same close intercourse with the individual workman, and it was supposed, before certain decisions of the Courts, to which I shall allude in a moment, that under those circumstances the same rule might be applied to the employer of labour in the case of his workmen, as is applied in the case of a third person, and that the master would be liable for any injury from the negligence of others in his employ. But some time back—as far back as 1837 in England, but in Scotland, I believe, not earlier than 1868 —the Courts of Law laid down a different principle: that where persons were employed under the same master the master could not be held liable for injuries resulting from the negligence of those in his employ to others also in his employ. That is the doctrine of common employment. From the time when it was first established by the decision of the Courts, it, naturally enough, was regarded with great disfavour by the work- 55 men, and not only by them, but, if I am not mistaken, by a considerable number of employers of labour also, who held it to be an unjustifiable doctrine. Having been thus established by the Courts, it was from that time down to the year 1880 the law of the land, although complaints have been constantly made against it, and loud objections raised to it, since that time, until, by the extension of the franchise, the working classes, in towns more especially, were able to make their voices heard more potently with regard to any evil from which they might consider they were suffering. I believe it has been held that this doctrine was founded to some extent upon the idea that there is something in the nature of an implied contract that a workman on entering into any employment engages to take the ordinary risks connected with that employment. That, I confess, seems to me to be a doctrine of the most artificial description. There is no such contract, and, to my mind, it seems even more imaginary than the famous contral social of .Rousseau. Under this doctrine the workman is placed in a less advantageous position in regard to compensation for injuries than the stranger—to the stranger the manufacturer, the Railway Company, the private employer, or individual, are all liable to be called upon to make compensation for injury. The workman is not so entitled when an injury to him arises, as I have said, from the negligence of anyone in common employment with himself. With all respect for the great legal luminaries who originally laid down this doctrine, it strikes me, and always has struck me, that in many cases a workman has a stronger claim upon his employer than an outsider. They are engaged in a common industry, and it seems to me that the natural doctrine would point to there being a greater liability to compensate for injury done in that case than in that of a person altogether outside and unconnected with the employer of labour, or with those in whose works the injury is inflicted. Under these circumstances, I think it can hardly be wondered at that an increasing cry has arisen of late years for an alteration in this rule of law. That cry became so strong that in the year 1880 the Government of the day dealt with the question. It is very possible that the Act of 1880 56 went as far in altering this rule of law as public opinion was prepared to go then. I was not in Parliament or in England at that time, and I cannot speak of the state of things with which the Act of 1880 dealt; but, at all events, the experience of the 13 years which have elapsed has shown that the legislation of 1880, though a step in the right direction and well intended, has not dealt satisfactorily and fully with the whole question. The Act of 1880 left, to a great extent, the doctrine of common employment standing, but it made certain changes in it rendering the employer liable to his workman in certain cases. One case was when personal injury was caused to a workman by reason of any defect in the works, machinery, or plant connected with or used in the business of the employer. Another case was when injury was caused to a workman by reason of the negligence of any person in the service of the employer who had any superintendence entrusted to him whilst in the exercise of such superintendence. There are three other conditions besides these, but I need not trouble your Lordships with them. It will, therefore, be seen that it was admitted in 1880 by Parliament that some alteration of the law was necessary, and that two main grounds for abolishing the principle of common employment were laid down. But the experience of the 13 years which have elapsed since that time has shown, as might have been expected, that those special exemptions do not really meet the case. They leave the doctrine of common employment standing to a great extent, and they have been found in practice to give rise to considerable litigation in regard to the exact meaning and purpose of the special conditions to which I have referred. As soon as experience had been gained of the working of the Act, complaints began to arise, as your Lordships are probably aware, of the inefficient character of its provisions in dealing with the evil which was the subject of it, and attempts have been made from that time to remedy that inefficiency. Bills have been introduced into the other House, some by private Members and some by the Government of the day, for the purpose of remedying some of the defects which have been found to exist in the Act of 1880. Now, my Lords, I venture 57 to think that, if it is desired to place this question upon a satisfactory footing and to bring it to a final settlement, that cannot be effected so long as the doctrine of common employment is allowed in any degree to remain—I cannot say is allowed to remain upon the Statute Book, because it has not been created by Statute; it has been created, as I have said, by the decisions of the Courts of Law. It draws a distinction between workmen and strangers which it seems to me very difficult to defend, and there can be no doubt, I think, that the workmen themselves will never be content or satisfied while that distinction is allowed to exist, and while this doctrine continues to be enforced. The object of this Bill, therefore, is to get rid once and for ever of the doctrine of common employment. It is clearly laid down in the first clause of the Bill that in future the workman shall stand, with regard to the matter of compensation for injury, exactly on the same footing as a third person stands at the present time. I do not know that it is necessary I should detain your Lordships at this stage of the measure with any lengthened argument upon the advisability of putting an end to the doctrine of common employment, because I think upon that question very considerable agreement now exists. Attempts, as I have said, were made by the late Government to deal with the question. They did not go the length of abolishing the doctrine of common employment altogether, but they proceeded to place some still greater restrictions upon it than were placed by the Act of 1880. The second clause of this Bill was not in the Bill as it originally stood, but was introduced in the House of Commons. It deals with employments which are injurious to health; and though some persons doubt whether it was necessary and whether the Common Law does not provide for the case, even if that be so, it seems only reasonable that such a clause should be embodied in any settlement which proposes to deal with the whole of this question. Clause 3 deals with the question as regards sub-contractors. Your Lordships are aware that in a considerable number of trades it is the habit of the principal contractor to sub-let a portion of the work—often small portions of the work—to persons who carry them out with 58 a small number of men. That practice, I believe, exists in the building trade; it exists very largely in dock work, where the gangers from day to day engage small bodies of men in loading and unloading ships, and it exists in some parts of the country, especially, I think, in Lancashire, in mining operations under persons who go by the name of "butty-men." These sub-contractors are very often persons of very small means, against whom it would be useless to take legal proceedings to recover compensation, because they have not the means to pay under any order which the Court might make, and consequently the clause provides, most justly and necessarily I think, that the workman shall be entitled to bring his action against the principal contractor, and not against the small sub-contractor, who might be simply, financially speaking, a man of straw. At the same time, the Bill secures to the head contractor his remedy against the sub-contractor if he is able to put it in force. These three clauses, therefore, deal with the question of common employment, and they deal with it, I admit, drastically by placing the workman in the same position as any other person in the country with regard to the compensation for injury. I believe the time has come for the change proposed, and I believe that public opinion is fully prepared for it. Your Lordships are aware how ardently it has been desired by the working people of this country for many years, and I hope, therefore, upon that point there will be no difference of opinion in this House. I come now to the fourth clause of the Bill, which provides that no person shall be allowed to contract himself out of the Act. That is a principle which has been admitted by Parliament in numerous cases of late years. In the Merchant Shipping Acts there were many such provisions. In the Tithe Act of 1891, brought in by the late Government, there was a provision against contracting out, and I might produce a large number of other instances which are sufficient, I think, to render it unnecessary at this stage of the Bill to argue the general question. I have no doubt there are some of your Lordships—I do not see my noble Friend Lord Wemyss; but if he were here he 59 would, no doubt, be one of them— who object altogether to legislation of that description, and who refuse to prohibit people from contracting themselves out of an Act of Parliament; but the precedents I have mentioned give a sufficient answer, as showing the general feeling in these days; and upon this question of principle I can at least appeal to noble Lords opposite who formed part of the late Government, because the clause in the Act of 1891 to which I alluded provided against contracting out of the Act. That was, undoubtedly, a limited provision, while this is a general and complete provision. I do not wish to press that limited provision in the smallest degree beyond what it will bear, but it is at least a proof that in the opinion of Her Majesty's Government this was a question upon which to some degree at least they were bound to go beyond the Act of 1880 which did not touch contracting out at all, and, with certain exceptions, to prevent it. Upon that point, since the passing of that Act, great complaints and objections have been made by most of the working classes themselves who are so largely interested in this question. I do not want to urge the point of the pressure which may be put upon working men to contract themselves out of the Act, but your Lordships can easily understand that there may be such pressure, which it is difficult to resist; and it is necessary to protect men in such cases by rendering contracts of that kind void in law. We must remember that this Bill is not brought in solely in the interests of any class. It is brought forward in what the Government believe to be the general interest, for the public safety, and for the protection of life and limb; and that is surely a ground why Parliament should say that it will not allow persons under pressure, or recklessly or improvidently, to deprive themselves, by contracting out of it, of the ad vantages which the Act of Parliament is intended to confer. I have already shown your Lordships that there is a great consensus of opinion in favour of some restriction being placed upon the free power of making valid contracts outside and beyond the provisions of the law in this respect. And this brings me, my Lords, to touch upon a question of great importance, a question which has occupied a large por- 60 tion of time in the other House of Parliament relating to what are called insurance funds. It was one of the objects of, the Bill of 1891 to allow contracting out in cases where funds of that description existed. It will not be difficult, I think, to show hereafter that the system which it was proposed to establish by that Bill was one which would have been extremely unworkable, which would have led to endless disputes and litigation, and which in the end it would not have been found possible to maintain. I want to clear away a misapprehension which appears to exist in the minds of many persons, and which, if the reports in the newspapers this morning are correct, appears to exist to a very serious extent in the mind of my noble Friend the Marquess of Salisbury. My noble Friend is reported to have said that this Bill would ruthlessly crush out these Societies. Her Majesty's Government have not the least desire to crush out such Societies, ruthlessly or otherwise, and they believe that they will be maintained, and maintained in spite of the provisions of this Bill. It is said that the Societies will be crushed out, because unless the men are allowed to contract themselves out of the Act and to rely solely upon those funds, the funds will fall to the ground. The great cases—I will not say the exclusive cases—in which these funds exist are in connection with the Railway Companies, and especially the London and North Western Railway Company. That company have an insurance fund to which the company have contributed very largely, and they have obliged the men who belong to the fund to contract themselves out of the Act of 1880. I am sorry to go even further than that, and to say that I am informed that they require all men in their employment, whether they belong to the fund or not, to contract themselves out of the Act. I think that is a mistake. Another great Railway Company, the London and Brighton, also have a fund of this kind, but all the men in the service of that company are not required to contract themselves out of the Act, whether they belong to the fund or not. But, my Lords, this is only one side of the question. Let us look at the other. There are two other railways, the Midland and the Great Eastern, which have similar funds. The Midland's goes rather beyond 61 a mere accident fund, and provides, I believe, for sick cases and for superannuation. But they both have funds of this kind, and they do not require their men to contract themselves out of the existing Act. And if you want to see what the men of the Great Eastern Railway think on this subject, you have only to look at the report which appeared in the newspapers a day or two ago of a meeting of the men which was addressed by Mr. M'Laren, the Member for Crewe, in support of the Amendment which he moved in the House of Commons. What was the result? A Motion was made in accordance with Mr. M'Laren's view, and an Amendment was moved supporting the Bill. The Amendment was carried by an overwhelming majority, so that I think we may conclude that the men of the Great Eastern Railway, although they profit largely by the fund, see no objection to the provision against contracting out. Therefore, my Lords, you have two great railways in connection with which industrial insurance funds exist, without the obligation to contract out, and I do not see how it can be maintained that the provisions of this Act, which is simply in accordance with the practice of these railways, will "ruthlessly destroy" insurance funds of this kind.
§ THE MARQUESS OF SALISBURY
As the noble Marquess has quoted me, I may say that I went on the statement of a Director of the London and North Western, made in the House of Commons, to the effect that contracting out was essential to the funds, which undoubtedly would cease if the Bill passed in its present form.
§ THE MARQUESS OF RIPON
That, of course, is a matter of conjecture, which may fitly be discussed in Committee. I think it will, then, be shown that so many benefits are involved in the continued existence of these funds that Director's will think better of it before coming to any determination to withdraw their contributions. Be that as it may, it does not necessarily follow that because that is the view of one Director or of all the Directors of the London and North Western Railway that they will turn out to be right, and that therefore these funds will be ruthlessly destroyed. I can 62 hardly see, in the face of the example of the Great Eastern and Midland, any ground for believing that that will be the case. If it is admitted, as I presume it is by the foes of the Bill, that contracting out must be prohibited, in the sense of being rendered void at law, in a great many cases, I want to know whether you are going to set up a sort of privilegium in particular cases for particular employers? I suppose you are not going to put into the Schedule the cases of particular railways or employers by name. You will have to make a definition. You will have to refer the matter to some authority to decide in each particular case whether the definition applies to the case or not. Noble Lords opposite in their Bill of 1891 proposed to do that, to a great extent, by reference to the Secretary of State for the Home Department, or the President of the Board of Trade. I will not press that point now, but I think it would not take long to show that would practically turn out to be a very unworkable system. At all events, I am sure that if Parliament enacts anything of this kind this Bill will fail to effect a final settlement of the question. It has been used as an argument against the Bill, as I understand, that it is the Bill of the Trade Unions. My Lords, if the Bill is a bad Bill, the fact that it is supported by the Trade Unions or by any other body of people will not make it a good Bill. That I entirely admit; but I am bound to say, considering that the Trade Unions represent very largely the feeling of those who will be affected by the Bill, that, so far from that being an argument against the Bill, it is one distinctly in favour of the measure. Unless you carry with you the hearty support of the great bulk of the working classes in legislation affecting their interests, your efforts will fail of success. Coming to the sixth clause, I may just say that its object is to make this Act more easy, simple, and effective in its working than the Act of 1880. There are only one or two more points in the Bill on which I need dwell at the present moment. The Bill, as your Lordships know, under Clause 8, is made to apply to workmen in the employment of the Crown, but not, of course, the Military and Naval Services. There is no reason and no justice 63 why men employed, for example, in the Arsenal at Woolwich should be placed in a different position from that of any other workman in respect of compensation for injuries occurring in the course of their employment. The definition of "workman" is made wider than in the existing Act, and includes seamen, domestic servants, andevery person who has entered into or works under a contract of service or apprenticeship with an employer in the United Kingdom.The noble Viscount opposite has presented Petitions from certain persons in London and Liverpool against the Act being made applicable to seamen, and he moved that the House agree that those Petitions be printed. I think, therefore, it will be convenient to your Lordships if I defer any observations on this branch of the subject till those Petitions are before us, only observing that I cannot at present see why seamen should be excluded. Such, then, is the Bill which I have the honour to present to your Lordships' House. Its three main characteristics are these: In the first place, it abolishes altogether the doctrine of common employment; in the second place, it prevents altogether contracting out of the Act; and, in the third place, it greatly simplifies and cheapens the process of enforcing the law. I think, my Lords, these are important and desirable objects, and I submit that the Bill which we are now offering to your Lordships on behalf of the Government affords the prospect of a fair and satisfactory settlement of a long-controverted question. It will bring to an end an artificial doctrine of law justly complained of by the working classes, and will put them, in the matter of compensation for accidents, on the same footing as the rest of the community, and it will remove a distinction unknown to the Common Law, and supported as far as I can perceive by no substantial justification. I beg to move that the Bill be read a second time.
§ Moved, "That the Bill be now read 2a." —(The Marquess of Ripon.)
§ THE EARL OF DUDLEY
said, that there could be no doubt that this measure, if passed in anything approaching its present form, would effect very important changes for good or evil in the industrial 64 life of this country, especially with reference to coal mines. As a colliery owner, employing some 3,000 men, he hoped that their Lordships would allow him to make a few remarks with regard to the changes that this Bill would make in the position of coal-miners. The two great features of the Bill were the proposals which it embodied to abolish the doctrine of common employment and to prohibit workmen from contracting themselves out of the provisions of the measure. With regard to the proposal to abolish the doctrine of common employment, he should not trouble their Lordships with many observations. The doctrine of common employment had been a vexed question for many years; and although doubtless much might be said in its favour, still it was not a. popular doctrine, at all events with miners, who, not unnaturally, wished to be placed on the same footing as regarded compensation for accidents with those who were engaged in other forms of labour. Whether the miners were right or not in entertaining that wish was an academical question which he did not desire to enter upon at that moment, but it was certain that that doctrine had been not infrequently pressed in past years in a most elastic fashion as a defence on the part of employers. It was, therefore, not surprising that the Government had decided to effect a change in the law in this respect and would increase to a considerable extent the liability of employers. That additional liability, however, would no doubt be largely covered by insurance, the cost of which would eventually be embodied in the price of the article produced. The result, therefore, would be that the doctrine of common employment with its possible hardships would be swept away at the cost of a small tax on the public as consumers. In his opinion, that was a most excellent and cheap method of getting rid of what was undoubtedly a grievance under which the men had laboured, and it was one to which neither the employers nor the employed would object in the least degree. But with regard to the second change proposed by the Bill—that of prohibiting the men from contracting themselves out of the provisions of the measure—there was a good deal more to be said, because its effects upon the relations between 65 employers and employed would be far more important. If this Bill passed in its present shape Parliament would greatly weaken, if not entirely destroy, the system of private insurance which now existed, and which worked to the satisfaction of all parties concerned. Under that system a fund was created by the joint contributions of the employers and employed, and out of it compensation was made to every workman who might be injured, no matter how his injury was caused. These private Insurance Societies had been in a number of instances established for many year?, and they had the effect of strengthening mutual interest and good feeling between employers and employed. Considerable light had been thrown of late upon the working of these Societies, as far as they concerned the railway men, by the recent discussions on this Bill that had taken place in the House of Commons and in the Public Press, the result being that other similar systems had been rather forced into the background, for these private funds existed in many of the industries of this country. Sir W. Armstrong and Company, and several large firms in Birmingham and in South Staffordshire, bad established similar private Insurance Societies, who had paid large sums to their members as compensation for injuries which they had received in the course of their employment. He did not speak of these private Insurance Societies without having some knowledge of their working. In his own collieries such Societies had been in operation for the last 50 years, which showed that they had not failed in their object, while they had given rise to the most friendly relations between himself and those whom he employed. But if this Bill passed in its present shape those private Insurance Societies would be either greatly weakened or entirely destroyed, because there could be no doubt that if workmen were prohibited from contracting themselves out of the provisions of the measure the employers would withdraw their contributions from the joint funds. The noble Marquess who had moved the Second Reading of the Bill did not appear to think that such would be the result of the proposed change, and seemed to imagine that there was no reason to apprehend that these private arrangements would not 66 continue to exist. He did not think, however, that there were many Members of that House—and he was sure that there were not many people in the country—who would hold that view, because it was contrary to common sense to suppose that employers would continue to make contributions to these funds when all the advantages which they deprived from their existence had been swept away by the operation of this Bill. It was impossible to suppose that employers would deliberately stand up to be shot at from both sides. It was perfectly obvious, if the Bill passed in its present form, employers would withdraw their contributions to those funds and would hand them over to some large Insurance Office, who would relieve them of all liability in the matter. It was a mistake to suppose that by taking that course the employers would incur any increased expenditure; on the contrary, they would save money by the change. He calculated that by making the change he should pay some £325 per annum less than he now paid to his colliery funds, and he did not doubt that other employers would be able to make as good, if not a more advantageous, arrangement. The consequences to the men, however, would be of a far more serious character, and it was in their interests that he asked Her Majesty's Government to reconsider their determination with regard to this question. If this measure were passed: as it now stood the men would find themselves involved in litigation with wealthy companies, who would be bound, in the interest of their shareholders, to contest every case in which there was the least shadow of doubt, while, in the second place, they would only be entitled to compensation in cases of accidents caused by negligence. It was difficult to exaggerate the advantages which the men derived under the present system, under which they obtained compensation in all cases of accident, however caused. Hundreds of accidents were constantly occurring in coal mines owing to causes that could not be clearly ascertained, and, indeed, it was only some 6 or 7 per cent of such accidents that were due to negligence, which could be traced to the fault of any particular person—falling of roofs, boring accidents, and other mishaps were constantly occurring, which often incapacitated miners for weeks from fol- 67 lowing their employment. These cases were totally unprovided for by the Bill; and, therefore, the great majority of injured workmen would be forced to depend entirely on their own small resources in cases of permanent or temporary disablement. There was a case of which he had personal knowledge, and which would illustrate the operation of the Bill. An Inspector at Birmingham, who had been in the employment of the London and North Western Railway Company for 30 years, while crossing the line at New Street to answer a call from the stationmaster, was knocked down by an engine and had both his legs cut off. When he recovered, the company found him a berth at 25s. a week for the rest of his life, as long as he behaved himself. Under this Bill he would have got nothing at all. The first defence to any claim for compensation would have been contributory negligence. It was not, therefore, surprising that the action of the House of Lords on this measure should be watched with the greatest interest by numbers of working men whose interests were involved. The men had taken every means in their power of expressing their views on the question. A deputation representing 100,000 men waited on the noble Marquess the Leader of the Opposition to protest against the Bill; and their Lordships were aware of the result of the ballot among the London and North Western men. He had similar evidence on a smaller scale. Among the 3,000 men in his employment he had caused a secret ballot to be taken a fortnight ago. The result was that 90 per cent. voted in favour of the continuance of the present system, 8 per cent. voted in favour of the Government proposal, and 2 per cent. were neutral. He felt convinced their Lordships would regard these expressions of opinion on the part of workmen as genuine evidence that in cases where these voluntary insurance funds existed the men were strongly in favour of continuing them, and deprecated the attempt which had been made to destroy them. The position of the Government in this matter was most anomalous. They professed to sympathise with democratic ideas, and to wish to benefit the working classes of this country. They proved that desire by proposing to forcibly deprive a large section 68 of the working men of advantage greatly appreciated and valued by them. They professed to respect the right of individual liberty and judgment. They illustrated that respect by curtailing the liberty of a large number of intelligent men, and by refusing them permission to decide how their own interests could be best served. They professed to believe in the vote by ballot as the only sure method of testing the popular will. They showed that belief by ignoring the almost unanimous ballot taken among many thousands of workmen, and by refusing to accept it as genuine evidence. Under such circumstances, he hoped the House would subject the measure to a most severe scrutiny, and would refuse to endorse that part of the Bill which involved such great hardship and so great an injustice.
THE DUKE OF ARGYLL
said, as their Lordships were about to give this Bill a unanimous Second Reading, it might safely be assumed that they approved of its principle, and the question naturally arose, what was the principle of the Bill? The noble Marquess had laboured very much the question of what he called the doctrine of common employment, and he said that the total abolition of that doctrine was the main object of the Bill. That, he apprehended, was a part of the Bill to which no Member of that House, on either side, would object. But the noble Marquess, in his account of the doctrine of common employment, did scant justice, as, indeed, it was very natural he should do, because, as he told their Lordships, he was not in England at the time, to the Act of 1880. The truth was that that Act destroyed virtually the whole doctrine of common employment, and what he wanted to direct the attention of the House specially to was the amount of change which this Bill would really make in the law as it stood under the Act of 1880. He believed that the Bill would do very little indeed for the working classes more than had been done by that Act, and would certainly do them very great damage unless Clause 4 was materially modified. In three directions the Bill enlarged the scope of the present law. In the first place, it brought in the workmen in the Government Factories. Well, that was a matter of course. He did not imagine that any human being would urge an 69 argument in favour of the exclusion of workmen employed under the Government from the general law of the land affecting other employers. Next, it brought in domestic servants. That was a matter of very small importance indeed, for accidents to domestic servants due to the negligence of masters must be very small. Lastly, it brought in accidents to seamen. That was a much more important question. Petitions had already been presented from shipowners in London and Liverpool against the Bill, and he wished to give notice that in Committee he would present to the House and move to have printed a Petition from no less than 54 of the largest shipowners on the Clyde with regard to the incidence of this Bill on seamen. That, however, was a separate question. But with regard to the general effect of the Bill in enlarging the privileges of the employed, there was nothing beyond the inclusion of Government workmen, domestic servants, and seamen. Speaking of seamen, there was a curious clause in this Bill, which seemed to revive and re-establish the doctrine of common employment in another form. Clause 10 provided that the crew of a fishing vessel should not be included in the benefits of the Act where such members, though not part owners, were "joint adventurers with the owners." It was quite possible to argue that all wage-earners were part adventurers, and if it should come to wages being hereafter paid as a percentage on profits, then the wage-earners and workers would be joint adventurers with the masters, and if this principle were established the old doctrine of common employment would be re-established and recognised under the form of "common adventurers." Passing on to the method of enforcing compensation, he imagined the object of the Bill must be to secure better compensation for accidents arising from negligence, and also to induce owners and employers to exercise greater vigilance in preventing them. Both those ends were attained by the Act of 1880. That Act made owners liable for all accidents due to neglect through agents, direct or indirect, or to any act of carelessness on the part of their officers who had any authority or responsibility in acting for them. In all those cases they were liable. There were two other classes of accidents re- 70 maining. Those were, in the first place, accidents due to the individual carelessness of the men to whom the accidents happened. That class of cases was not provided for by the Bill at all. It did nothing whatever to secure compensation for accidents which happened owing to the negligence or carelessness of the individual men to whom the accidents happened—nothing whatever. Those, be believed, were at least 60 or 70 per cent. of all the accidents that happened; and as the Bill did nothing whatever in those cases, the benefit of it would be comparatively small, even if it passed entirely unaltered. Then another class of accidents was those which were due to the carelessness of comrades or fellow-workmen. What would happen in those cases? He did not deny for a moment that some of the most deplorable accidents were due to the carelessness of comrades and fellow-workmen. Take, for example, accidents in coal mines. There, in 99 cases out of 100, they were due to such carelessness. Compensation would not be secured unless negligence were proved. But how was that to be brought home to them? In almost all the cases the whole of the men were killed; and even when they were not, reference to the trials which took place would show that there was nobody capable of giving evidence as to how the accident occurred. Generally, it happened that some man had opened his lamp to light his pipe, and was blown to atoms with his unfortunate comrades. No compensation would be payable to anybody unless negligence could be proved—negligence of the master or the agent, direct or indirect; negligence of the comrades. Where no negligence could be proved, there was no compensation provided for by the Bill. It was impossible to listen to the speech of the noble Marquess without seeing that by the insurance funds referred to by Lord Dudley all those deficiencies in law were provided for. They provided for accidents in all cases without the least reference to the cause. Then why should those funds be prevented? The noble Marquess had said that the prohibition of contracting, out had become a common thing in Acts of Parliament, and that both Parties in Parliament had assented to it in certain cases. He did not deny 71 that for a moment, but each case must be decided by itself. If a contract was against public policy; if a contract was notoriously injurious to the men themselves—as, for instance, a contract for perpetual slavery, which was unknown to the law of England—Parliament had a right to prohibit that or any contracts which were against public policy; but could they say it was against public policy to have insurance funds when they knew that under the insurance system all accidents were provided for, whether due to carelessness or not? There was under that system no legislation, no painful inquiry, no antagonism between employer and employed, and the system worked with perfect smoothness between masters and men. The question was, whether this was a kind of contract which ought to be prohibited? That was the whole question. He had heard no argument from the noble Marquess in favour of prohibiting this particular kind of contract. On the contrary, he had said he fully admitted that these contracts were very right and very good. Then why prohibit or impede them? Then the noble Marquess said, "It is very true the men of the North Western Company are against the prohibition; but the men of the Great Eastern are for it." That was no argument against allowing freedom of contract. Let those men who did not wish to contract out come under the Bill. It was a question of individual freedom. A large deputation had waited upon him a few days ago, and he cross-questioned some of its members upon this subject, and more intelligent men he never had intercourse with. They spoke excellently well, and stated their case as well as any Member of their Lordships' House could have stated it. They seemed to be as intelligent upon their own subjects as any Member of that House, and perhaps a good deal more independent. They stated that a ballot of the London and North Western Railway men had been taken on the question, and that 75 per cent. of the men had voted in favour of this system of contracting out. Then why should the Government attempt to abolish it? It was a very curious thing that the noble Marquess did not say one word in favour of that prohibition. His question was, could they prove that in this case it was a wise and just prohibition to 72 make? Let them consider what the benefit was to the working classes of the system of mutual insurance. It avoided litigation; it promoted watchfulness and the prevention of accidents. He was told by one of the deputation from the Elswick Works of Messrs. Armstrong that about three-fourths of the whole funds were contributed by the men, and not only that, but the large majority of the managing body were themselves working men. One of the workmen, who he was told was also a constituent and great supporter of Mr. John Morley, told him that the effect of the system was that representatives of the men went round the machinery at stated intervals to see that it was all properly guarded and that all preventible means were taken to avoid accidents; and that if accidents did occur, they would be clearly owing to the negligence of the workmen themselves. In great works like Lord Armstrong's there must be accidents occurring which were not due to the carelessness of comrades or agents of any kind, but which were pure accidents happening to individual men. Under this Bill those men would get no advantage whatever, but they all got compensation under the system of mutual insurance. The present system, therefore, clearly encouraged watchfulness; it prevented antagonism, as his noble Friend Lord Dudley had said, between employer and employed, and it established, above all, a sense of common interest. In short, it had every advantage which a system of compensation for injury could possibly have, and was better than any system which could be established under the legal obligation of an Act of Parliament. Why did noble Lords dislike it? Why did they wish to prohibit it? Some of the deputation which waited upon him were quite outspoken upon the subject. They said many of them were members of the Trades Unions, but that many of the leaders of the Trades Unions objected to the contracting-out clause, because they wanted to get the men entirely into their own hands; but the workmen wished to be free, as individual men. He strongly urged upon the House that individual liberty ought to be upheld, and it was a monstrous proposition for any Minister of the Crown to lay down that to allow this individual liberty to the men was to 73 confer a privilege upon them—to give them a privilegium.
§ THE MARQUESS OF RIPON
said, he did not apply that to the men, but to the companies which it was proposed should be released.
THE DUKE OF ARGYLL
said, it was the men themselves who made these agreements, and when a ballot was taken they voted 90 per cent. in favour of being allowed to make them. The freedom of Englishmen to act as they thought best in their own interests and for their own benefit was to be called in future a privilege, and Parliament was to judge for them. That was a monstrous doctrine to lay down. He could not help thinking that all these measures which set employers against employed would ultimately have most disastrous effects upon the working classes themselves. There was no doubt that they encouraged the idea which was continually urged in some quarters, 1hat the interests of capital and labour were antagonistic. That doctrine was simply idiotic, and ought not to be encouraged. Capital and labour were necessary to each other, and capital could not be employed freely where it was fettered by such Acts. In other respects, the effect of passing the Bill in its present shape would be most disastrous to the working classes of the country. It was quite clear that the great commercial depression and troubles which existed in all the great commercial centres of the world—in England, in America, and in Germany—were coincident with agitation, which unsettled the minds of men, which put forward the doctrine that capital was antagonistic to labour, and which destroyed confidence in the results of commercial enterprise. The old doctrine of political economists of the wages fund, that wages consisted of a certain sum of money, like so many guineas in an old woman's stocking, was now completely abandoned. It was knocked on the head chiefly, he believed, by his old friend Mr. Thornton, was finally killed by John Stuart Mill, and was now held by nobody. There was, nevertheless, a source from which all wages came. All wages must spring from commercial enterprise, and every Statute which tended to discourage commercial enterprise struck a direct blow at the working classes. Those who had 74 capital were unwilling to invest it in commercial enterprise when they did not know, from day to day, what was going to happen in the labour market, and in other directions. It was only last autumn that one of the greatest employers on the Clyde told him that was the feeling which operated on his mind. Every Bill which interfered with individual liberty and freedom, and set up the doctrine that capital was necessarily antagonistic to labour, had a directly dangerous influence on the wages fund of the working classes. His noble Friend opposite said that these funds would not be destroyed if Clause 4 were passed, but his noble Friend who had last spoken had shown that such a contention was incorrect. The deputation which waited upon him the other day represented 160,000 working men, who were against destroying the existing arrangements. What ground had his noble Friend for saying that these funds would not be destroyed? Lord Dudley had given most excellent reasons why it would be almost impossible for employers to continue them. He hoped, for the reasons which he had stated, that their Lordships would expunge Clause 4 when the time came for doing so in Committee. In the meantime, he gave his assent to the general principle of the Bill; and he and his friends went further, and said that they believed it would be far better to allow compensation to be given, by means of mutual arrangements between employers and employed, for compensation for all kinds of accidents without reference to the cause of them. He hoped, therefore, their assent to the Second Reading would not be misunderstood, because the desired Amendments could be brought forward in Committee.
§ THE MARQUESS of LONDONDERRY
asked for the indulgence of their Lordships while he addressed them for a few moments as an employer of labour and a colliery owner in the County of Durham and a member of the Durham Coalowners' Association. He cordially concurred in the decision of the noble Marquess below him not to divide on the Second Reading. In the first place, he did not think that the Bill was worthy of being rejected by their Lordships. He regarded it himself, with certain alterations, as a Bill of a harmless character; but whether those alterations were made 75 or not, he was at a loss to see how the Bill could benefit any human being. The country had had experience of a Bill of the same character as this in the Act of 1880, which, according to the noble Marquess opposite, had not proved itself in any way a success. The measure that was submitted that day added, to his mind, to the evils of the Act of 1880. He would briefly enumerate the provisions of this new Bill. In the first place, it proposed the total abolition of the doctrine of common employment by subjecting employers to the same liability to their workmen as they were under to strangers for injuries caused by the workmen of the employer; secondly, it made employers liable for injuries resulting from an absence of reasonable sanitary precautions, as if that were legal negligence; thirdly, it prohibited employers and workmen from contracting out of the Act; and, lastly, it placed the liability of employers to workmen on the same footing as to strangers—first, by removing any limit to the amount of compensation recoverable; and, second, by abandoning the special provisions of the old Act as to procedure, except that the County Courts were given jurisdiction in all cases where the amount claimed did not exceed £300; whereas, under the ordinary law affecting strangers, the limit of the County Court jurisdiction was £50. On that point he proposed to move an Amendment at the proper time. But what he wanted to bring under their Lordships' attention was the effect of the present Bill on the mining population of the Counties of Northumberland and Durham. Previous to the Act of 1880 they enjoyed considerable benefits. He would not enumerate them all, but he would briefly state that the chief benefits they enjoyed were the partial maintenance of a medical man at each colliery, and the provision until otherwise required of free house accommodation, and coals for the widows of men killed from whatever cause while following their employment. In addition, some owners maintained, or aided in maintaining, relief funds at their own collieries. There also was what was known as "smart money," a weekly sum paid by the employers to any person injured below ground in such a way as to disable him from following his employment. The amount paid was 2s. 6d. a week to a boy and 5s. a week 76 to a man for a period not exceeding six months. Then there was also a Miners' Provident Society, to which many employers voluntarily contributed a percentage of 20 per cent. of the workmen's contributions. He would now bring to their Lordships' notice the action taken by the owners in consequence of the passing of the Act of 1880. After the passing of that Act, but previous to its becoming law, a meeting of the Coalowners' Association was held, at which Returns from members of the Association were received. Those Returns showed that during the year ending September 30, 1880, money amounting to £6,119 10s. 4d. was paid by employers to workmen as smart money, and the employers also contributed £4,598 1s. 9d. to the miners' permanent relief fund. At the same meeting, the coalowners of the two counties addressed a letter to the Miners' Association. The gist of that letter was that the coalowners proposed that their previous privileges, such as their accommodation houses and smart money, should remain undisturbed, but that the owners' percentage contribution to the miners' relief fund which covered all classes of accident and also old age should be increased. The Miners' Association refused this proposal. He also wished to call attention to the following paragraph in that letter:—You are no doubt aware of the numerous donations and other privileges which for many years past have been voluntarily given by the colliery owners for the benefit of those workmen who have received injury in their employ, or, in case of death, of their representatives, the value of which amounts to £30,000 per annum, of which £6,000 per annum is represented by smart money.The payment of smart money did not end when the Bill of 1880 became law, for in the year 1891 no less than £9,000 was paid as smart money in those districts to men who were disabled. The offer of the coalowners was put forward from no sordid or grasping motive, but simply, among other things, to avoid litigation. If this measure passed, litigation would be found to be a very heavy item in the pitman's account. That offer was also put forward for the purpose of promoting harmonious and cordial feelings between employers and employed. In 1891, after the offer had been rejected, an Owners' Association was formed for each county under the Companies Acts on the lines 77 of Mutual Insurance Associations formed by the coalowners. That that policy was successful was shown by the fact that the amount of compensation paid during the 11 years from 1880 to 1891 was only £2,632 6s. 7d., while no less than £967 0s. 11d. was paid in legal expenses. On the other hand, the payments made voluntarily by employers to the miners' permanent relief fund during the same period amounted to no less than £49,264. He thought their Lordships would allow that the Employers' Liability Act had not been beneficial to those whom it was intended to benefit. If he wanted corroboration of that he found it in the evidence given by Mr. Steele, the Secretary of the Miners' Relief Fund, before the Labour Commission on August 5, 1891. Mr. Steele said that the total amount of owners' percentages paid up to 1881 was equal to 12½ per cent. on the whole contributions of the members; that since 1880 there had been a general falling-off in the owners' subscriptions, and in 1890 they were only 5.7 per cent. Mr. Steele also said—Undoubtedly the Employers' Liability Act has resulted in the decrease of the owners' percentage";and he also showed that if the owners had maintained their rate of contribution prevailing up to December, 1880—that was before the passing of the Bill— the position of the Society would have been better by nearly £40,000. He did not think he exaggerated when he said that, judging by the benefits conferred on the miners of Durham by the Act of 1880, there was not much chance of their receiving much further benefit from the Bill now before the House. The Bill, in his opinion, increased the probability of litigation, because it increased the area of liability, and it involved the risk already proved of a diminution of the voluntary payments of employers, which exceeded any payments that could be obtained under the law. He would make one statement of a personal character. He had heard it stated that if the Bill as it at present existed became law the owners, in all probability, would withdraw their subscriptions to the insurance funds. Whether the Bill passed as it stood or not, unless some circumstances of an altogether unforeseen character arose, he would in no way depart from the policy 78 he had pursued in the past. But he wished to state that, while he had been putting before the House the line taken since the passing of the Act of 1880 by the coalowners of Durham, on this point he was in a position to pledge nobody but himself. He could, however, say that the coalowners would never be wanting in doing all that possibly could be done to secure the comfort of their men, and to minimise the danger that must necessarily appertain to those following so hazardous a calling. He had had some experience of mining, and he assured those in charge of the Bill that if they thought it was going to effect a millennium for the pitmen they were as ignorant of the elementary rudiments of mining as was that right hon. Gentleman of agriculture who entertained the idea that if Parish Councils were only created there would exist in the most desolate and barren parts of this Kingdom "waving fields of golden corn."
§ LORD STALBRIDGE
said, he would not have troubled their Lordships with any remarks on this occasion but for two or three observations of the noble Marquess in moving the Second Heading. He would not detain their Lordships at any length for two reasons: first, because, as Chairman of the London and North Western Railway Company, he was sorry to say he would have to be heard again when the Bill was in Committee; and, next, that this question of contracting out of the Bill had been fought out by the men themselves. Holding the position which he had the honour to hold as Chairman of that company, he would not be doing right, therefore, in saying anything on that matter, because it would be brought before their Lordships at a later stage by another Member of the House selected by the men themselves. He wished, however, to make a few remarks on the observations which fell from the noble Marquess in introducing the Bill. In the first place, he rather hinted that some coercion must have been used on the men. That suggestion had been disposed of in the other House and in the Press. In these days it was not likely that it was in the power of Directors to influence by coercion some 60,000 men voting in, secret ballot. Such a suggestion was an insult to the intelligence of the men. 79 He could only repeat what had been said before, that the action on the part of the men was earnest and spontaneous; it came from them alone, and it was they themselves who were desirous of maintaining this power of contracting out of the Act. He wished that his noble Friend opposite had received a deputation from the men, and had heard both sides of the question. He would then have seen the earnestness with which they argued their own cause, and the reasons they brought forward in support of it. But the Members of the Government, both in their Lordships' House and in the other House of Parliament, refused to hear the arguments of the men themselves. It was perfectly true that it was one of the conditions of service in the North Western Railway Company that the men should join the insurance fund. If there had been the slightest objection to that coercion, as they called it, would not the men have taken the earliest opportunity of showing it? They had, however, by majorities of 87 per cent. and 95 per cent. declared in favour of the present system, and that was the result of spontaneous action on the part of the men themselves. The noble Marquess bad urged as a reason why the contribution now made by the employers should not be withdrawn, that under the Bill that contribution would be regarded as part of the compensation awarded to the injured workman. But such a course would be most impolitic on the part of the employers, and that seemed to him to be one of the weakest and most curious arguments ever adduced. By placing a sum of £50 or £100 in the hands of a man who was permanently injured would they not open a field to the speculative attorney, of whom they had heard so much, who would say that if he were paid so much of that ready money he would obtain a very much larger sum for the man in a Court of Law? That would be a most foolish course for any Board of Directors to take, and one which they would inevitably repent very soon. The London and North Western Directors had passed a resolution stating that if the Act passed in its present form their contribution to the fund must inevitably cease. As a matter of fact, it ceased automatically. It was given for a definite object, and if the conditions were not adhered to 80 it lapsed. No Director would ask the shareholders to contribute to the fund as largely as before with the knowledge that no benefit would be got from it. He wished to know what possible harm would accrue to those who did not want the power of contracting out by granting it to those who did want it? and he trusted in Committee to adduce further reasons why the present system, including as it did the power of contracting out, should be retained.
§ THE EARL OF SELBORNE
said, it was his duty on behalf of the Government in 1880 to move in that House the Employers' Liability Bill of that year, and upon that occasion he expressed his own inability to follow the grounds upon which the doctrine of common employment had been established. It, therefore, would not surprise their Lordships to hear that he, for one, was perfectly content that it should be abolished in the absolute manner in which that was done by the Bill, but he must warn all those interested in the question that to abolish the doctrine of common employment did not mean that everybody who was in anybody else's employment was to be compensated for all the accidents which might happen to him in that employment. In the first place, if it was his own fault, of course he was not to be compensated if he contributed in any manner to the accident. The law as it would be under this Bill was the same as at present—the workman was not in that case to be compensated. Lastly, he would only be compensated under this Bill in the way in which a stranger would be compensated. He did not suppose for a moment that every passenger on board a ship who was not in the employment of the company was entitled to be compensated for every accident by which he might be injured; he did not apprehend that everyone who visited a mine, a stranger not in the employment of the Mining Company, would, as a matter of necessity, be entitled to compensation because he might suffer from some accident or other which occurred while he happened to be down in the mine; and he did not apprehend that every visitor or guest in a private house would be compensated for every accident which might happen while he was there. Therefore, although the classes of persons who would 81 benefit by the Bill were enlarged, and although the doctrine of common employment was abolished, there would be an ample field still remaining for questioning whether, under particular circumstances, compensation was due or not. He thought it as well to say so much as that, lest the effect of the Bill should anywhere be exaggerated. No doubt within its proper limits it would operate justly in the cases where it operated at all. The only other matter which had been brought into discussion, and which arose on the present occasion only in this way —that it involved an important principle, though that was not the principle of the Bill with which they were concerned in the vote to be given on the Second Reading—the only other matter was that of the clause absolutely excluding all contracting out of the Act. He was surprised to see it stated that the noble Earl who so worthily led the Government in that House upon the occasion of speaking on this Bill in the country was reported to have said something in a general way, to the effect that a Bill was of no use if people were allowed to contract out of it, and instancing the Agricultural Improvements Act. There was no man in that House of whose judgment—when they had his real judgment—he thought more highly than his noble Friend; but if he did make that remark, and if he illustrated it by that case, he must for the moment have forgotten the difference between such a case as that which he referred to and the present. When a general rule of law had to be laid down which executed itself apart from litigation If the rule were a sound one it might be a very wise thing to take care that nobody should be at liberty to alter it or to depart from it. The Agricultural Improvements Bill was of that nature. It laid down certain rules founded upon justice which would be practically incorporated by law into every contract for tenancy of land, and which would, therefore, execute themselves just as much as the rights given in a lease. There was no obscurity about them—no uncertainty. Their application might, of course, like everything else in the world, in some possible cases become a matter of dispute, but it was not in their general nature necessary that they should be ascertained by litigation. But where 82 a remedy was given by an Act for damages to a person suffering a particular wrong, then, unless the parties met and agreed without an action, litigation was the whole thing; and to say that because a general rule of law should not be interfered with by private contracts therefore there shall be a rule of law that somebody who suffers an injury and cannot agree with the person whom he holds responsible for it as to the amount to be paid is not to be at liberty to protect himself in some better form if he can, seems to be at the least very remote from the analogy. The principle which should always be kept in. view in considering whether contracts should be allowed by way of exception from general legislation was, whether the nature of the case required the prohibition of the exercise of private judgment or not. He could understand that it might be thought unsafe to allow an unlimited power to contract out of such a remedy as this Bill gave, because of the possibility of the application of pressure or superior power on the part of the employer as against the employed; but what he could not understand was, upon what conceivable principle in dealing with a definite class of arrangements which gave to the employed as a class better and more advantageous remedies than those given by particular litigation—upon what conceivable principle that was to be prohibited he failed altogether to understand. Here their Lordships had presented to them a certain class of insurance contracts or Benefit Societies, and the question was whether any principle whatever required—he would go further and say justified—the prohibition of such contracts if their prohibition could be avoided consistently with the general intention. Some people said those insurance funds or Benefit Societies would not be prohibited; but those who subscribed enormous sums of money as employers must be judges for themselves as to that. To him it seemed the most reasonable thing in the world that they should stipulate for some advantage to themselves in return for that which they contributed. They might say—"We give £20,000—in some cases more than the contributions of the men—to an insurance fund; we shall have the benefit of the insurance fund as well as you, and we shall have that insur- 83 ance against litigation," and the men approved of that because it gave to them the immense advantage which this Bill would not give them; it covered all those classes of accidents which the Bill would not cover, and it relieved them from all those risks, liabilities, uncertainties, and costs of litigation in which the Bill would inevitably involve them. Was there any advantage in dealing with the matter in that way? They would see when the Bill reached the Committee stage; but if there was no advantage, he could not but look upon the Government policy of insisting upon this proviso as a determination to saddle this measure, proposed in the general interest of the employed, with a conditional clause depriving vast numbers of the employed of great benefits which they at present enjoyed, and for which this Bill would be no substitute whatever.
§ THE LORD CHANCELLOR (Lord HERSCHELL)
My Lords, I do not think it necessary to defend the principle of the Bill in so far as it extends the Act of 1880 and puts an end to the doctrine of so-called common employment. One observation I will make, and it is this: The noble Duke who spoke earlier in the Debate said the Bill does very little, that the extension of the Act of 1880 is very trifling, and that it is a measure for which nobody has any reason to be thankful. That is not the opinion of the mass of the working classes in this country. They have thought about the matter probably for as many years as the noble Duke has weeks, and they have come to the conclusion that it is a Bill which they earnestly and ardently desire; and not suddenly, but after agitation continued for a series of years. My Lords, I think it would be capable of easy proof that the measure is a very considerable extension of the Act of 1880, and that it confers a very great advantage upon the employed by making the question of liability for accident depend upon an issue generally of great simplicity, whether negligence can be proved, and by getting rid of all those limitations and restrictions which have in the past caused litigation to be so continuous and which have given rise to so much discussion in the Law Courts as to the law declared upon the subject. Turning to the clause round which the discussion has chiefly pro- 84 ceeded, the observations of some noble Lords would seem to indicate complete hostility to any proposal to prohibit contracting out; but I do not understand that to be the view of my noble and learned Friend who last spoke. As far as I could gather, he has given his general adhesion to the principle of prohibiting contracting out of the Bill. The clause prohibiting contracting out can be justified on two grounds: In the first place, the Bill would be a dead letter in many cases if that were not prohibited. It is well-known that in many employments not so highly organised as those which have Trades Unions there is no fund and no provision for compensation in the case of accident. Those are the cases which most need protection, and where the benefit of the Bill could only be reaped by prohibiting contracting out. In the second place, it would prevent contracting out as a principle which is against the public interest. I say a contract to contract out in such a matter is against the public interest. What does it mean? It means this: Persons are injured in the course of their work in industrial enterprises. They are not able to support themselves, and are thrown upon the community if they contract out of the provisions of the Act. The community is not bound to enforce every agreement between parties; and you are not bound to enforce any contract the result of which, on the whole, must be regarded as against the public interest. There is a great deal of confusion on the subject. The Bill does not prevent people making any promises to each other unless those promises are against the public interest; and I maintain that there is no inherent right in any two people to make engagements and to compel the community to enforce those engagements being carried out. Therefore, I say that wherever the engagement is of a nature against the public interest, it is perfectly legitimate to forbid contracting out. I do not understand that there is any great controversy about the general provision forbidding contracting out; the suggestion rather is that there ought to be some exceptions from the general provision. Of course, when we come to discuss the Bill in Committee any proposal to that effect would have to be considered. There have, however, been some observations made in the 85 course of the Debate to which I should like to call attention. In all cases, as far as I understand, in which the opinion of the employés has been taken by ballot, the alternative has been put to them, Would you prefer to retain your insurance fund, or would you have the Act, and the Act alone, without the insurance fund? I can quite understand that to a question so put the workman would make the answer that they would prefer to have the insurance fund without the Act to having the Act without the insurance fund. It should be remembered that the question is put in a manner which assumes that their choice is only between the two. I do not believe their choice is only between the two. I think better of the employers of this country than to believe it; for if the choice was between the two, it could only be by the employers showing a disregard of those who are in their employ, which I should deeply lament to think characterises any of them. The noble Marquess (Lord Londonderry) apparently entered upon this part of the case with the intention of cursing the Government proposal, but it seems to me that he blessed it altogether, because his facts proved that, notwithstanding threats or suggestions made at the time the last Employers' Liability Act was passed, employers in the North of England have continued to contribute very largely to funds of this description, and I should think it very astonishing if they had not done so. Why do they make these promises, and pay "smart money" to men who are injured? Because they do not like that a man injured in their employ should be left to charity or to the Poor Law, and they think that such a man is entitled to receive some consideration from those in whose employ he is. That is why they contribute, and I should think ill of them if they were to cease to contribute. And the Bill only comes to this: that the contribution they make is to be more complete. That is all it comes to.
§ THE LORD CHANCELLOR
I will deal with the question of litigation in a moment. We are told that the total number of cases resulting from negligence is 6 per cent. Therefore, 94 per cent. of the cases will go on as now in their nature and character of the compensa- 86 tion paid. It is only in 6 per cent. of the whole number of accidents that compensation would have to be made under the Act. It was said that employers would refuse in every case to do for their workmen in future what they thought proper to do now. It seems to me they would be most unwise if they did so, and it would show a monstrous and outrageous disregard of their employés if they were to do anything of the kind. It is said that the London and North Western contributes so largely to their employés' insurance fund in order to escape from litigation. I confess I can hardly accept that statement with gravity. That they should pay, as we have been told, £20,000 a year to escape litigation when the number of cases in which they would be liable to litigation under the old law is so very trivial indeed, that for that alone they should make this contribution is a draft upon my credulity which I am not able to honour. No; I am satisfied they make that contribution with higher and nobler motives. The noble Lord said that the proposed change in the law would compel employers to cease contributing to these funds in future. I have listened with a little surprise to that conclusion, considering what were the premises. Your Lordships are told that these are funds which bind together employer and employed, which have created good feeling and harmonious working between them, and you are told, further, that the only effect of the Government's proposal would be to compel the mine-owner to pay a premium for insurance, the repayment of which would come from the consumer of the article. Because the mine-owner may be compelled to pay some small premium of insurance, which ultimately would come out of the produce of the industry, the noble Lord would on that account abandon a system which for years has maintained harmony between employer and employed. Well, I fail to see that the conclusion is justified by the premises. I do not blame those who suggest that the funds would go to pieces. They do not like the Bill, and it is quite natural, while the Bill is in progress, that they should, practically speaking, take up an irreconcilable attitude; but it by no means follows that if the Bill is passed the better feelings of employers of labour will not prevail. The Bill, your Lordships will observe, 87 does not compel a workman to avail himself of the rights which it gives. It does not say he shall sue.
§ THE LORD CHANCELLOR
Yes, because it provides that a workman cannot contract out of the Act; it does not compel him to bring an action and to sue. No doubt there may be individuals in whose case there would not be any restraining motive at all; but is it not obvious that such cases would be so limited in number that it would be monstrous and absurd in any company or any individual, on the chance of that limited number of cases, to break up a system which they say has worked well and for the advantage of the employers and workmen? Therefore, it seems to me it is in the highest degree improbable —I should regret to believe it—that these funds will be destroyed. Certainly there is nothing in this Bill which compels such destruction. If they are destroyed it will be by those who choose to destroy them, and I entertain still the hope that even if the Bill passes in its present form no such destruction will ensue.
§ Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the whole House on Friday the 8th of December next.