449
SPLI
PECORD OFFICE
Reference -
NC.O.882/12
T T T T T T G H I J
PUBLIC RECORD OFFICE. LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH--NOT TO|
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Governor to discharge adequately his undoubted responsibilities for efficient adminis- tration. It would also involve a departure from the procedure, consistently followed since the introduction of the Constitution, by which the Financial Secretary has corresponded directly with Executive Committees upon all proposals affecting the number and remuneration of the staff of departments under the Committee's general control, whether these proposals involved an increase or a decrease in numbers and cost, and has addressed the Governor directly as his constitutional adviser in such matters. This procedure was formally considered by the Board of Ministers as recently as the 5th June and the Board agreed that it was in accordance with the Constitution, though Ministers added that they considered the position unsatisfactory.
5. The importance of this procedure from the point of view of the maintenance of the Governor's influence in establishment matters arises from the fact that without it the Governor would be totally unable to keep in touch with developments of salary and cadre questions in their various stages. You will appreciate that the later the stage at which the Governor becomes informed of proposals affecting salaries and cadres, the more difficult it is for him to intervene without causing something in the nature of a political crisis. For example, Ministers and Executive Committees have made many far-reaching proposals affecting these questions when forwarding their While draft Estimates through the Financial Secretary to the Board of Ministers. salaries and cadres are recognized by Ministers and Executive Committees, however reluctantly, as subjects assigned to the Financial Secretary, they view representations by him in regard to proposals embodied in their draft Estimates which affect salaries and cadres as normal and quite constitutional. If, however, these subjects were admitted to be subjects assigned exclusively to Executive Committees, in so far as Departments under Executive Committees are concerned, they would argue, probably with success, that the Financial Secretary had no status which entitled him to discuss salaries and cadres with an Executive Committee unless proposals had been made which seriously affected the Budget position as a whole. In short, they would say that the Financial Secretary must restrict his observations on any proposals affecting salaries and cadres in the same way as he would restrict his observations on their general policy; in other words, that he must restrict himself to the broad financial implications of their proposals. If this position were accepted the Governor would find himself without opportunity for intervention in regard to proposals such as those here con- templated until the Appropriation Bill was presented to him for his assent.
I believe that the question of the method by which the Viceroy of India and the Provincial Governors would be able to establish and maintain contact with Ministers' policies has been one of the most debated subjects during the consideration of the White Paper proposals by the Select Committee of Parliament and, if I am correctly informed. His Majesty's Government regard provision for such contact as a matter of the greatest importance. My experience of the working of the Ceylon Constitution leads me to take a similar view of the necessity for the continued maintenance of such methods as are now open to the Governor of Ceylon for keeping himself informed at all stages of the progress of events likely to affect the efficiency of the Public Service for which he is responsible to the Secretary of State.
6. I have accordingly thought it necessary to address you, with particular reference to the request of the Acting Minister for Agriculture and Lands for your express interpretation of the Schedules to the Order in Council, in the hope that you may feel able to defer, at least until there has been opportunity for a full examination of the position, any public pronouncement which would alter established procedure and would involve the practical difficulties to which I have referred and to which I shall return later in this despatch. I feel sure you will agree that the substance of the question between the Executive Committee and myself in this particular case, a question already decided by yourself upon grounds which raise no issue of procedure, does not in itself necessitate any public pronouncement upon that point.
7. Turning to the constitutional position examined in your despatch, the question of the Governor's responsibility for the efficiency of the public service is one of such fundamental importance in the operation of the Constitution that, quite apart from the particular issues raised in the Acting Minister's letter, I would be glad to be accorded some further general guidance in the matter and to be permitted to share in its con- sideration before any final decision is publicly announced. Indeed, this question is and has been since the establishment of the Constitution the most burning political question that has arisen and the only one, as you are well aware, which has occasioned serious and repeated disagreements between the Executive Committees or the State
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Council and myself. The difficulty of arriving at a conclusion upon this most important question is greatly increased by the absence of any precise definition of the position in the Order in Council.
8. The particular subject under discussion is the division of executive respon- sibility in establishment matters and it does not seem possible to obtain any guidance upon that subject from the fact that the legislature is responsible for financial provision for establishments. In this respect the position of the State Council is the same as that of the Legislative Council in the former Constitution and the Governor's power to over-ride the decision of the legislature is the same. I do not, of course, refer to questions arising under Article $7 of the Order in Council which has a special purpose. It would not seem possible, however, to conclude from Article 22, in so far as it relates to the Governor's power to disregard the refusal of the legislature to make financial provision for establishments, that there has been any transfer of that executive authority in the matter of establishments which was formerly vested in the Governor alone. If the State Council has acquired any share of that authority it can only have done so by reason of its acquisition of executive functions. I shall refer later to this aspect of the question.
9. The Board of Ministers is not expressly mentioned in your despatch as an authority sharing in the division of executive responsibility in establishment matters, but it may be convenient at this point to consider the Board's position. The Board is responsible under the Constitution for the executive act of framing the annual Budget for presentation to the Legislature and this responsibility extends, not only to proposals for expenditure upon subjects and functions in the charge of Executive Committees, but also to proposals for expenditure upon subjects and functions in the charge of the Officers of State under the Governor's direction. In respect of the latter the State Council has not been vested with executive authority, and it would not seem possible to conclude that any part of the Governor's executive responsibility for those subjects and functions, whether in the matter of policy or establishment, has passed to the Board of Ministers. Consequently it would seem difficult to conclude, by reason alone of the Board's responsibility for framing the Budget, that any executive authority in matters of establishment, at least of a positive character, is vested in the Board in respect of those subjects and functions for which Executive Committees are responsible. Indeed, as the Constitution stands, the Board has no executive authority except for finance. It can, subject to the Governor's reserve powers, prevent the adoption of a particular policy by an Executive Committee by refusing to propose to the legislature the grant of the necessary provision, but the Board has no authority to call upon any Executive Committee to give effect to any particular policy and consequently no authority to call upon any Committee to provide any particular establishment.
The Board has never claimed that it could on its own initiative, by including provision for particular services in the estimates of a department under the control of an Executive Committee, and by securing the approval of that provision by the Council, oblige the Executive Committee to see that those services were performed. Unless the Board receives from an Executive Committee a proposal for expenditure upon certain services, it has no material upon which it could decide whether or not those services could and should be performed. The Board has no authority to call upon an Executive Committee to furnish it with that material in order that it may provide the necessary funds and give directions to the Committee for their expen- diture. Any claim by the Board to exercise that authority over Executive Committees would be very strongly resented by the Committees and could not be reconciled with the responsibilities assigned to Committees in the present Constitution. Indeed, the absence of that authority has been repeatedly urged by the Board as one of the major defects in the Constitution preventing the effective co-ordination of the various activities
of
government.
Having regard to the position of the Board as described above it would seem that in searching for the constitutional authority executively responsible for establishments, it is necessary to look for another authority than the Board of Ministers.
10. It will be convenient to examine next the position of Executive Committees for it is more particularly to their position that your despatch expressly refers and it has been with them, at least in the first instance, that disagreement on establishment matters has arisen. Moreover, since Executive Committees derive their authority from the State Council in its executive capacity, an appreciation of the position of Com- mittees in establishment matters may assist in determining the position of the Council.