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PECORD OFFICE
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One solution would be to alter the position of the Chief Secretary by re-creating the office of Lieutenant-Governor. I do not recommend that this course should be even considered at the moment, but I am not sure that it will not eventually prove to be the soundest.
Any other solution must be more or less of a makeshift. The only practicable one seems to be that now in operation, namely, for the Governor's Secretary to keep in exceedingly close touch with the Chief Secretary, and, when any question comes up which involves political considerations, or important considerations of general policy, to give the Chief Secretary an opportunity of recording an opinion before the case is submitted to Your Excellency. I do not know if the other Officers of State are aware that the Governor's Secretary does (under Your Excellency's instructions) occasionally refer to the Chief Secretary papers submitted by them before they go to Your Excel- lency, but I think that it should be made clear to them, not only that Your Excellency has the right to consult the Chief Secretary as indicated (this, I think, they will admit) but also that the Chief Secretary should have free opportunity of offering his advice. There is I think no need to state this position to the Ministers at present, though the need may possibly arise in the future. It is probably recognized that the Chief Secretary's right to be present at Executive Committee meetings gives him the right to discuss with Your Excellency any matters which may arise at such meetings.
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6. THE SPEAKER.
The importance of setting up sound traditions was so vital that it would have been highly desirable that the first Speaker should have been nominated. This, how- ever, in view of the fact that the Legislative Council had an elected Vice-President, was impossible. The result has been most unfortunate. The Speaker has allowed a number of thoroughly unsound practices to grow up. If any question is put to him on a point of order" he never stops to think whether it is really a point of order within his competence to decide or not. In consequence he has frequently allowed himself to be trapped into interpreting provisions of the Order in Council, and when doing so has I regret to say, allowed himself to be guided chiefly by what he thinks the Council wishes him to say. Early in the Budget debate he produced a long, unintelligible, but in many places clearly incorrect, interpretation of Article 87 (1), from several of the positions laid down in which he was afterwards forced, in practice, to resile. The other day, in spite of my calling his attention to Article 48 (2) he produced an obiter dictum that all decisions of Executive Committees must be reported to the Council. In connexion with Article 22 he produced the astounding theory that under paragraph (1) (a) an Officer of State could claim priority for a motion only for the purpose of presenting it, and not for the purpose of proceeding with it. He was obliged to go back on this ruling the next day, when, immediately after the Financial Secretary had presented a motion under this Article a member, quoting the ruling of the previous day, claimed to be allowed to move an adjournment. His claim, obviously in order if the ruling was correct, was disallowed. He further laid down that a declaration under Article 22 (1) (b) could only be made when the motion was before the House, and defined this as meaning after he had actually put the questions and before he had declared the result of the voting. He has actually committed himself, in pursuance of this ruling, to a declaration of his opinion that certification by message to him is only of effect if the message reaches him in time for him to deliver it to the Council while the question is still before them! The certification of the Enabling Bill and Income Tax Amending Bill is therefore, in his opinion, inoperative! Still more preposterous was his ruling that Article 22 (1) does not override the provisions of the Standing Orders regarding a quorum. It is there- fore possible, if a "certification" is in sight, for members to block it for the time by going out and leaving less than twenty members present. This was actually done in the case of the Supplementary Vote for Holiday Warrants, and I am told, on good authority, that the Speaker himself actually instigated members to the action. He has established a pernicious practice by which, after question time and before public business begins, members may get up and propound questions, on any matter whatever, for solution by the Speaker.
On many occasions he had displayed gross partiality, not only by his rulings, but by actually making remarks on points raised in debate.
He has, in short. made no attempt to restrict himself to his proper functions,
or to perform his duties in a proper judicial spirit.
He does, however, deserve credit for considerable firmness and for quickness in decision.
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7. THE PUBLIC SERVICES COMMISSION.
2.
Our final draft of the Order in Council provided for a Commission not necessarily composed entirely of officials. The Secretary of State gave no reasons for not accepting this recommendation, and the Public Services Commission must consist of the Chief Secretary as Chairman and "such other persons in the Public Service as the Governor may appoint as members. In fact, it consists of the three Officers of State. While I consider this most desirable at first, I consider that a time may come when a change would be desirable. There are many reasons in favour of an unofficial element, and the presence of such an element would be particularly desirable, if, as I consider essential, the right to advise in regard to appointments is taken away from Executive Committees."
The Public Services Commission has worked smoothly, and, on the whole, expeditiously, and its institution was undoubtedly a sound measure. involves a slight delay in cases of appointments, and in such disciplinary cases as Its operation would not have gone before the Executive Council. The delay is caused not by waiting for meetings, for practically all papers are dealt with by circulation, but by the fact that the papers, before going to the Governor have to be seen by three officers instead of one, and that the Financial Secretary and the Attorney-General, being grossly overworked, have not always time to attend to papers on the day on which they reach them. The number of disciplinary cases in which appeals have been made to Your Excellency or the State Council has been enormous, a number of old cases, decided sometimes as long as five or six years ago, having been revived, partly owing to dismissed employees having fallen on harder times than usual owing to the depression, and partly owing to vague hopes that the new Constitution offered a chance of old decisions being reconsidered. A number of appeals are still made to the Chief Secretary. As he has now no disciplinary powers, outside his own departments, these are treated as appeals to the Governor. All appeals do not go to the Public Services Commission, who decided, with Your Excellency's approval, that trivial cases in which the facts are clear should be submitted to the Governor by their Chairman direct. Such cases used to be disposed of by the Colonial Secretary without reference to the Governor. The idea of the present procedure is not that the Public Services Com- mission delegate their duty of advising to the Chairman, but that he advises the Governor that the case is a simple one in which it is unnecessary for him to consult the Commission.
The
In regard to appointments, a curious position has arisen. The proper body to advise Your Excellency is, under Article 89 (1) of the Order in Council, the Public Services Commission. But, under Public Service Regulation 13, the Executive Com- mittee concerned, if any, is also consulted. This thoroughly unsound provision is consequent upon the recommendations of the Donoughmore Commission. mitting the final draft of the Order in Council to the Secretary of State I consulted When sub- my advisers as to whether this provision should be made or not. We were unanimously of the opinion, in which experience has confirmed us, that it was most unwise; but we felt that it was so essential a feature of the Donoughmore Commission Report that, although we proposed to embody it, not in the Order in Council but in regulations made by the Governor, it must be regarded as an essential part of the Constitution as accepted by the Legislative Council, and could therefore not be omitted. Governor therefore has two independent advisers in the matter of appointments, and the curious question arises as to the relative weight to be attached to their respective counsels should they differ. The Executive Committees undoubtedly regard refusal to accept their advice as an extreme step, amounting almost to a use of the Governor's reserve powers. Actually, the Governor, in regard to his acceptance or rejection of their advice, is not even bound by the considerations laid down in paragraph 1 of the Royal Instructions, as the power of advising in these cases is not given to them by the Order in Council, but by regulations laid down by the Governor. This point of view, though technically correct, is however one which the State Council and the Com- mittees would never accept, and it must be taken as inevitable that any advice given to the Governor by the Public Services Commisson against the advice of an Executive Committee will always be strongly resented.
Public Service Regulation 13 could of course be legally abrogated by the Governor himself. The same considerations which compelled me to advise, against my better judgment, that that regulation must be made, compelled me also to advise that its abrogation would have to be regarded as in fact, though not in law, as an alteration of the Constitution as accepted by the Legislative Council.