The Law and the Poor

by Sir Edward Abbott Parry

But when we come to the Workmen’s Compensation Acts that is another matter altogether. The County Court judges have never received a penny for the extra work thrust on them by these Acts, and therefore there can be no indelicacy or indiscretion in speaking one’s thoughts plainly about the system.

And of the idea, and to a great extent of the achievement, of Mr. Chamberlain’s scheme—for to him must the praise and honour be given for bringing it about—one cannot speak too highly. The theory at the bottom of it is exactly the opposite of the theory at the bottom of the judges’ decision against poor Priestley. It is best put in these memorable words of Mr. Asquith:

“When a person, on his own responsibility and for his own profit, sets in motion agencies which create risks for others, he ought to be civilly responsible for his own acts.”

That is the Magna Charta of workmen’s compensation. It cannot be better stated. And the promises and intentions of the new Act were splendid. For Sir Matthew White Ridley said that the Act would prevent uncertainty, and the parties would know what their rights were, and that it provided a simple and inexpensive remedy and would prevent litigation. Mr. Chamberlain pointed out that up to then, in 1897, only 12 per cent. of accidents were dealt with, but that he hoped that now the other 88 per cent. were to be brought in.

His plan was so simple. An injured man in certain trades had only to ask for compensation, and receive it according to a fixed standard. State-paid doctors and arbitrators were to settle the details of the man’s injuries and the amount to be paid to him. In his own words, “We wish to avoid bringing in again under another name the old principle of contributory negligence.” A man was to receive compensation when injured in the service, even if he himself had been negligent.

I often think if Mr. Chamberlain had had health and strength to see the workmen’s compensation business properly through he would have dealt with the lawyers who mangled his excellent scheme much as Theseus did with Procrustes when he met him on the banks of the Cephisus. Procrustes, you will remember, was a robber of Attica with a quaint sense of humour and a bedstead. If a traveller asked his hospitality he invited him to the bed, to which he tied him. If his legs were too long he cut them off, and if his legs were too short he pulled them out to the right length. Procrustes had the calm judicial mind of the Court of Appeal, and within his narrow limits knew exactly what he wanted to do and how to do it. But it was rough on the traveller.

And it is rough on a humane, simple, wise scheme for the benefit of the poor on leaving the hands of that great reformer and statesman, Mr. Chamberlain, to find that it is being martyred by the Procrustes of the law so that it may fit his narrow bed of justice. I think some of the decisions of the Court of Appeal would have been too many for Mr. Chamberlain, and he would have severed their connection with the workmen’s compensation business as Theseus severed Procrustes’ connection with the bedstead business.

It is certainly not putting it too strongly to say that the judicial body, speaking generally, did not love the Workmen’s Compensation Act. The idea at the base of it that a man should compensate another outside the scope of contract or wrong was to them out of harmony with the English law. There never was a more honest or single-hearted judge than A. L. Smith, who was Master of the Rolls when the earliest cases came up for decision in the Court of Appeal. The social creed of “A. L.” was something between that of the Church catechism and the Sporting Times. He was beloved by rich and poor. His ideal world was one where a good-natured aristocracy would confer kindnesses on a well-mannered democracy, who should receive them in a jovial and grateful spirit. There is no doubt that he endeavoured, as did all the judges of the Court of Appeal, to rightly interpret its provisions; there is equally no doubt that the spirit of many of the interpretations placed upon the draftman’s words did not give effect to the intentions of Mr. Chamberlain and those who had passed the Act. This one can only trace to the habits of mind and social creeds of judges like “A. L.” who were wholly out of touch with the beliefs and hopes of industrial democracy. The Act of Parliament ought not to have been sent to the Court of Appeal at all. It was not founded on any legal principle, it was an insurance scheme that wanted business men to work it, and, as Mr. Chamberlain had foreseen, lawyers and litigation could in no way assist its working.

It cannot be gainsaid that the legal history of the Workmen’s Compensation Act is not a thing for lawyers to boast about. No one has a greater respect for the Court of Appeal—and, indeed, for all my spiritual, legal, and worldly pastors and masters—than I have. Humility towards those who are called to any honour amongst us is my foible. I admit I have but a poor stomach for law and that I often find the learned judgments of Appeal Courts a little indigestible, but I remember the Irishman sampling the twopenny racecourse pies, and piously murmur to myself, “Glory be to God, but they’re dam weighty.” No one would deny the learning, subtlety and weight of the judgments in the Court of Appeal on the Workmen’s Compensation Act, but, speaking as a common arbitrator who has to work the Act at first hand and make it human food for shattered men and widows and orphans, they have not tended to make my task easier, they have not simplified and assisted the scheme as a compensation scheme, and they have not been in harmony with the spoken intentions of the author of the scheme.

This, I think, to be due, in the first place, no doubt to the imperfections of the Act, in the second, to the fact that the appeals come before learned judges who have never administered the Act in cases of first instance and have had no practical experience of its working, and, in the third place, to the fact that to much of the higher judicial intellect the theory of workmen’s compensation is in itself unscientific, and therefore repugnant.