Chapter IV: Principles of Prospective Legislation for Dangerous Trades

“Quot manus atteruntur ut unus niteat articulus.”--PLINY.
_Natural History_, Book II., chap. lxiii.

He who attempts to deal with the future of industrial legislation is confronted at the outset by two obstacles. The one is inherent in most endeavours which relate to prospective law-making. The barque which sets forth into the sea of futurity should, if its voyage is to terminate in the safe anchorage of a fair haven, steer clear of those currents which only too easily carry it upon the shoals and quicksands of controversial politics. Once launched, it is scarcely possible to avoid stranding upon the sterile shore of party. And even a successful cruise must bring it perilously near the Scylla and Charybdis of government and opposition. The effort of this chapter will be to steer as even a course as possible between these opposing forces.

The second difficulty is more of a particular than general nature: particular to the subject under consideration. A study of what has gone before, especially of the historical chapter preceding this, must force the conclusion that what has up to now been achieved seems to have been more the result of accident, or of some extraneous agitating forces, than of any carefully considered or preconceived plan. How piecemeal the work has been, and how intricate a fabric! Upon what lines can so patchy a structure be developed? Upon what principle applicable to the whole code can our industrial legislation, already a congeries of partially connected details, proceed?

Students of the British Constitution will be tempted to draw an analogy from their favourite example; and indeed there is much at first sight in common between the histories of the Factory Acts and the British Constitution. The structure of each is compounded of small accretions, contributed by what seemed the necessity of the moment. But in the one case, in spite of the seemingly haphazard nature of the work, judged by the manner in which it has been performed, the British Constitution is firmly established upon a solid foundation, the independent blocks have fitted well into their time-assigned places, and have become welded together into a sound, cohesive whole in the process Mr Walter Bagehot has admirably called “the cake of custom.” How far has this been the case with the Factory Acts? Certain warring elements have gradually become adjusted; incongruous items have in certain cases been made to harmonise. The best example of this is to be found in the Consolidating Act of 1878, by which many inconsistencies were corrected. But even this admirable piece of work left the door open to the recreation of the incongruities and anomalies. In many cases the loopholes have been but too freely utilised, and exemptions and exceptions have been widely extended. These have largely tended to weaken the law and to create confusion.

This want of homogeneity in the base work suggests problems of procedure difficult of solution. In view of the danger that any weighty superstructure would threaten foundations thus composed, it might be urged that our first care should be to remodel the foundations that the base may be secure. Such a course would involve the inevitable risk of disturbing what is already firmly rooted, and the true answer is that only a few reforms in the foundation work are required. These reforms, successfully executed, would produce a basis upon which the most elaborate fabric might rest secure.

A glance at the general nature of the work, which has been ably described, reveals the fundamental doctrine that protection is necessary, protection of the wage earner against cruelty or harsh treatment, against fraud, against accident, against poisoning, even against himself. There is a small and rapidly diminishing school of thinkers, who hold that any protective law is wrong unless it be applied equally to men and women. But as men and women are not equally subject to the same risks and dangers, it is idle to argue that they can be treated in the same way. Those who are sceptical of the value of protective law would do well to remember that it was during the heyday of the Manchester School, when freedom of action, and of trade, and non-interference generally were at the zenith of their popularity, that some of the earliest Factory Acts were passed into law. If the necessity for the regulation of the labour of women and children was recognised at a time when such restrictions were eminently repugnant to the public mind, that necessity must have been great indeed. Is it suggested by the opponents of protective measures, that although such a necessity did exist in the past it has been dealt with and no longer exists? The facts go to show that the need continues, and even increases, with the volume of trade.

Statistics make it abundantly clear that there is much sickness and mortality engendered by industrial occupations, and that a large proportion of this is preventable. The method of prevention is the subject which has to be considered, and before doing so, it is desirable for a moment to refer to the historical chapter preceding this. There it is shown that there is a multitude of injunctions laid upon manufacturers in the form of rules known as “special rules.” The imposition of these rules is limited to such trades as are certified by the Secretary of State to be dangerous or injurious. The rules are all imposed with one end in view, the safety of the worker, and though they deal with an infinity of matters, the cleanliness of the operative is one of the objects most commonly designed. To effect this many forms of words have been drafted and are at present in use. In these varying forms the duty of providing and maintaining the means for cleanliness is laid upon the manufacturer, and the duty of availing himself of those means is laid upon the operative. Not only does this injunction vary in form in different trades, but different codes embracing different standards are found in separate factories in the same trade. It will be asked how did this come about? How could a sane legislature or an administration outside Bedlam permit one law for the good employer and another for the less sensitive in conscience, though more sensitive in pocket? How could such a system creep into any code of law? As a matter of fact, it is the creation of that hysterical fear of compulsion, that nervous concern for the liberty of the subject, which has carried its mischievous influence into many spheres of activity. The plea that the employers’ grievances should be heard has gradually developed into an argument that each employer should be allowed to object, and objecting, he has eventually, by a process called “arbitration,” been enabled to procure a law to his own liking.

It is scarcely necessary to demonstrate the great inconvenience and injustice which arise from such a system. Two men carry on the same trade; two standards of efficiency are demanded by the law. One manufacturer is required to set up and keep in good repair an apparatus, which is as nearly perfect as human ingenuity can devise. The other, perhaps sceptical of the advantages of such an apparatus, or more often for the sole reason that he objects to the cost and trouble of erecting it, is permitted to provide something less efficient. This system, happily described as “the creation of industrial Alsatians,” is open to five obvious objections: (1) As between the two employers it is a substantial injustice; (2) it is not less unjust to the operative, compelled in his need to accept worse conditions than his comrade; (3) it puts a premium upon resistance, in that the objecting employer is rewarded; (4) it imperils the dignity of the law; and lastly, (5) it embarrasses those who administer it.

The situation then demands redress. How can this best be effected? Two reforms, one already indicated, suggest themselves as most ripe for decision. The first is the consolidation of the special rules and the direct enactment of such of them as are common to all or many of the dangerous trades. Of this class consideration has already been given to washing appliances. Such other matters as the provision of a dining-room, the prohibition of taking meals in dusty workplaces, the provision and maintenance of mechanical apparatus for withdrawing fumes, gases, or dust, the prohibition of certain classes of persons from working in certain places and processes, might each and all be embodied in the general Acts with specific reference to particular industries. And indeed they do find a place in the general Acts, but owing sometimes to capriciousness of reference and sometimes to vagueness in form, their inclusion has failed to effect that simplicity and uniformity in the law which is so much to be desired. By such a consolidation the multiplication of codes of special rules would be avoided, and even in some cases their elimination would be secured. But not only so: an immense gain would result from the uniformity which could be achieved. If the sporadic and capricious incidence of these obligations could be abolished, the gain would be indeed enormous.

Not less simple is the reform which is called for in the employer’s power of objection and the system of arbitration. The working of the existing system has long been condemned. Nobody in the House of Commons is found to defend it; and yet, like other friendless doctrines, such as that of “common employment” in the law of Employers’ Liability, it has lived into the twentieth century. Last year an attempt was made to alter the law. Although this attempt would have been a step in advance of the present situation, it was so slight a step that it was not greeted with enthusiasm by those for whose benefit it was intended. The proposal was to substitute a system of reference for that of arbitration. Some advantages were claimed for this proposal in that uniformity would be secured. But the uniformity would have been at the expense of a thorough and stringent code of rules, which might have been acceptable to some of the employers. The referee’s court would have inevitably toned the rules down to suit the objectors. Evil as is the existing system, no alteration would be a gain which, while it purchased uniformity at such a cost and amended the procedure to so trifling an extent, postponed a radical and effective change to the Greek Kalends.

Full inquiry into the alleged dangers of a trade and full hearing of the manufacturers’ case are carefully designed by the present system. This design might well be satisfied, these effects be yet retained, and without revolutionary change additional advantages be secured; the advantages of a decision of the Secretary of State, unjeopardised either by arbitration or by reference, given after consultation not only with employers but with workpeople, and subject only to the control of Parliament. Legal provision should be made for full inquiry (such as it is now the practice to make by departmental committees) into the special conditions of the trade alleged to be dangerous; if, on the conclusion of the inquiry, regulation by Special Rules be recommended, and the Secretary of State certify the trade to be dangerous, he should issue to the manufacturers, and by public notice in the factories or workshops to the workpeople, a copy of the rules he proposes to make. The manufacturers and workpeople should be entitled to make objection in writing to the rules, or any of them, within one month of the receipt of such notice. Then the Secretary of State, in consultation with the Chief Inspector of Factories and the recommenders of the rules, should consider any objections so made, and the rules as drawn up after such consideration should be laid on the Table of both Houses for forty days, and have the force of law if during that period no objection to them be raised. It might often be desirable that the rules should be considered individually by Parliament, and provision for such consideration should be made. Under this scheme the clumsiness and delay now inevitable would be averted, and with proper safeguards for his interest being retained the manufacturers’ power of rejection would be transferred to Parliament.

Other reforms in the regulation of dangerous trades demand mention. It is true of most poisonous substances in use in dangerous trades that adults whose constitution is fairly established can resist their danger more easily than can young persons. This is especially true of lead, whose insidious character has often been dwelt upon by scientists and statesmen; the inevitableness of its action is now recognised, and wherever risk of poisoning by this agency is established, there are to be found regulations and restrictions of a more or less effective nature. But it is also true of other substances, the absorption of which is injurious, and in all cases where much dust is generated, as in the manufacture of flax or hemp, or in trades where steam is given off in considerable volume, the labour of persons of immature years should be prohibited. This would be one reform.

Again, there are other trades in which the degree of danger is peculiarly influenced by the continuity of the exposure to it. Such, for example, is the use of inflammable paints, where continuous employment during the normal period of five hours inflicts injury appreciably in excess of that caused by exposure of the same duration but broken in its continuity. Shortened spells of work were recommended by the Dangerous Trades Committee in the indiarubber trade, where carbon bisulphide is used, and in the painting of ships with inflammable paints. The special rules applying to indiarubber works embodied this recommendation, and there should be no great difficulty in extending the principle to other trades where it is obvious that the danger of employment is increased by long periods of exposure to these deleterious influences. Such trades as bronzing in lithographic works, in wallpaper, and in paper-staining works would greatly benefit by such a provision.

Another reform was recommended by the Dangerous Trades Committee, which made its final report in 1899. All officials who have had occasion and opportunity to investigate the subject are convinced that many deaths occur which are primarily due to some industrial occupation, but are never so classified or reported. Diseases of occupation are so numerous and varied in character, and liable to disclose themselves in such diverse symptoms, that the initial cause of illness is often lost sight of, or still oftener never discovered. It consequently arises that the statistics of illness and death from industrial causes are most imperfect. Any improvement in the manner of obtaining such statistics and eventually of striking at the _causa causans_ would be valuable. All cases of death where the person has worked in a certified dangerous trade, or in a trade to which any of the consolidated special rules are applicable, within a prescribed period before death, should be reported to the coroner, who would, if he thought fit, conduct an inquiry into the circumstances of the case.

No chapter dealing with the future government of dangerous trades would be complete without an appeal for drastic and thorough measures. Loose wording in the rules, or, still worse, small omissions, may involve mischief out of all proportion to their apparent significance or to the value of the compromise effected. Numerous instances of the injury caused by the admission of small concessions to protesting manufacturers could be given. Possibly none is more striking than that of the bottling of aerated waters. Conducted under proper conditions there is no reason why the operatives should be subject to any but unimportant and minor casualties, but conducted as it often is, grave accidents occur with a persistent and alarming regularity. Many cases of persons losing their eyesight, and even cases of death, from injuries received by the bursting of bottles could be quoted. The rules as originally outlined by the Dangerous Trades Committee contained provisions for the protection of all persons engaged in the labelling of bottles, but in the rules as finally issued to and accepted by the manufacturers, persons engaged in labelling bottles standing in cases were exempted from the safeguards. From this simple omission, many accidents and much suffering have resulted. One is tempted to ask how, in the first place, this apparently small precaution was omitted, and when its importance was discovered, why the defect was not remedied. The answer to the first question is probably that the manufacturers demurred as to its necessity, upon which for the sake of peace and economy of time and temper their view was adopted. This is but a surmise. The explanation of the subsequent inaction requires no surmise. After the danger had been established, Sir Matthew White Ridley, in answer to a question upon the occurrence of one of these accidents, said in the House of Commons:--“I have not the power at pleasure to make or alter special rules. They must be settled either by arrangement with the employers or by arbitration, and in the present case I cannot regard the occurrence of a single accident, much as I regret it, as sufficient reason for re-opening a question which has just been settled, after long and difficult negotiations.” From this answer the importance of thoroughness in translating the recommendations of committees into special rules becomes obvious.

Nor is it sufficient to hope that by persuasion or agreement with employers rules suggested by the Factory Department or the Secretary of State will be effectually carried out. In some cases they may be, in others they will not. The same unfortunate results proceed from such a course as are to be traced to the existing system of arbitration. It has been shown how that system is unjust both to employers and workpeople, how it encourages the careless and irresponsible employer, how it derogates from the dignity of the law and embarrasses its administrators. This is true of persuasion.

As in human nature there is every gradation of sensitiveness of conscience, so must there be in the factory, if reliance be placed on the forces of moral suasion alone, a corresponding gradation of conditions from excellence and thoroughness to indifference and neglect. Uniformity in these matters is an urgent necessity; and uniformity is incompatible with the substitution of persuasion for compulsory powers.

Let thoroughness, then, be the watchword of those whose prerogative it is to frame these protective measures. Let the loopholes for escape from the provisions of the rules be closed up; let the channels for contracting out of just obligations be carefully dammed; and do not let small pretexts of irksomeness, or the employer’s scepticism, or the manager’s contempt, or the workpeople’s want of care, weigh in the balance for a moment against the health, the well-being, and the lives of masses of working men and women.

For a strong Government and a humane House of Commons, the few reforms indicated would be but a light undertaking. They would put no undue strain upon the executive or the legislature; and they would, directly and indirectly, prevent a large amount of suffering, now patiently borne by a lowly and an inarticulate portion of the community. If simplicity, uniformity, and thoroughness be established in the government of the trades which carry grave risk to those engaged in them, the national conscience will be relieved of an oppressive burden, sometimes perhaps but dimly realised, but always real, and assuredly its removal will enhance the security and confidence with which this generation entrusts to its heirs the great destinies of our race.

NOTE.--The year 1901 has witnessed the efforts of the Government and the House of Commons to amend and consolidate the law relating to Factories and Workshops. In this effort, so far as dangerous trades are concerned, certain changes have been effected. There is a prohibition of eating meals in factories and workshops where lead, arsenic, or other poisonous substance is so used as to cause dust or fumes. Power, too, is granted to the Secretary of State to prohibit, limit, or control the use of any material or process; but although he had not this power before, he could practically exercise it under section 28 of the Act of 1895. Electrical generating works, and those railways which connect factories with each other and the main lines, are now brought within the law for certain purposes; and dangerous trades conducted in domestic factories or workshops can now be regulated.

But the most important alteration is that which transfers the responsibility for the special rules from an arbitrator or umpire to the Secretary of State. Under the new law the Secretary of State may frame regulations, and if they are not accepted, modified, or withdrawn, he must (unless the objection to them is withdrawn, or is, in his opinion, frivolous) order a public inquiry to be held by “a competent person.” The Chief Inspector, and any person affected by the draft rules, may appear at the inquiry either in person or by counsel, solicitor, or agent. This inquiry will take the place of the present arbitration, and the person holding the inquiry has, unlike the arbitrator or umpire, no power of adjudication. He will report to the Secretary of State, who is not bound to adopt his recommendations. The responsibility for the rules will rest with the Secretary of State, subject only to the control of Parliament (the rules will lie on the table for forty days), and in this lies the main advance effected. This advance may, however, prove more theoretical than practical, for it is unlikely that the Secretary of State will reject the advice of the person whom he has specially selected to advise him. The Government insisted on retaining the competent person, in spite of the contention of the reformers that reliance should be placed in the Committee of Inquiry, in whose minds all the circumstances and evidence taken would still be fresh, and in the Secretary of State’s permanent official advisers.

After full credit has been given for the transference of the final responsibility, the question arises: Are the two main defects of the present system remedied? Can uniformity be said to have been achieved, when we find that the new regulations “may provide for the exemption of any specified class of factories or workshops either absolutely or subject to conditions”? And is it satisfactory that we should have still with us, in the form of the “competent person,” in one of the most important advisory positions in the State, “the man in the street,” “the irresponsible outsider” so properly described by Mr Ritchie in his introductory speech on 28th March 1901?

H. J. TENNANT.