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CROWN AGENTS' ENQUIRY COMMITTEE:
SECOND DAY,
Monday, 15th June, 1908.
At the Colonial Office, Downing Street.
PRESENT:
COLONEL J. E. B. SEELY, D.S.O., M.P. (Chairman).
The Rt. Hon. Sir F. Mowatr, G.C.B., 1.8.9.
Sir Raru Moon. K.C.M.G.
H. J. GIBSON, Esq., C.B.
R. BAILEY. Esq., M.V.O., L.S.0.
Sir ALBERT SPICER. Bart., M.P. C. A. Hangis, Esq., C,B., CMA,
A. J. HARDING (Secretary).
Mr. H. BESTRAM Cor. C.B., called and examined.
291. (Chairman.) We are very glad to have the privi- lege of hearing your legal opinion on the different points raised before this Committee. You told me the day before yesterday that you had drawn up a sort of plan of the evidence you would like to give to the Com- mittee, and perhaps you would choose the order in which you would like to begin?-The first question I was asked, I think, was as to the legal status and posi- tion of the Crown Agents for the Colonies. As regards that I should like to say that in my opinion they are servants of the Crown in the employ of the Colonial Governments, appointed by a letter written by the Secretary of State, in the same way as every Assistant Under-Secretary in this particular department is appeinted appointing them to be Crown Agents. Such an appointment prima facie is an appointment terminable at the pleasure of the Crown, because every officer of the Crown, unless some other tenure is fixed by the terms of his appointment, holds office at the pleasure of the Crown and can be dismissed at the plea- sure of the Crown.
292. We have the letter before us appointing one of the last Crown Agents ?--I do not think I have seen that letter. (The "letter was handled to the Witness.)
293. You will see that there are no terms specified there?--In the absence of any terms specified the officer would hold at the pleasure of the Crown.
204. You think that is quite clear?-It is perfectly clear. It has been laid down in cases again and again. and it is best summarised in a brief form in Sir William Anson's book on the Law and Custom of the Constitution." volume II.. in which he says: "This brings us to the nature of official tenure. On what terme do public servants hold their offers? All offices, whether limited as to tenure by a specified time or not so limited. are held subject to one of two conditions: they are held either at pleasure or during g behaviour. and unless otherwise stated they hold at pleasure. Similarly in a case which are in the Court of Appeal in the year 1896. the case of Thinn v. The Quren, Lond Herschell, who was a Member of the Court of Appeal on that errasion musl the follegin language which will be found on page 119 of the Taw Reports for 1996 (1 Q. B. D.); "I take it that persons employed as the petitioner was in the service of the Crown, except in eases where there is some statutory provision for a higher tenure of office, are ordinarily engag on the understanding that they hold their employment at the pleasure of the Crown. So I think that there must be imported into the contract for the employment of the petitioner the term which is applic able to civil servants in general, namely, that the Crown may put an end to the employment at its pleas sure." I find nothing in the letter, which is addresse to Manam ron, which state that he holds his office on any other tenum, such as during gol behaviour, which is the way in which a Julge is appointed, and various other offrers; for instance I believe the officers of the Secretary of State for India in Conneil are appointed during good behaviour. To dismiss such a person, of course it would be necessary to show not that the Crown had the wish to dismiss, but that the officer had been guilty of some miscondurt in his office which rendered it undesirable that he should continue
to hold it. Unless such a condition is imposed, primi facie every servant of the Crown holds during the plea sure of the Crown and his appointment can be termi nated at any moment when the Crown states, by what ever form is usual in such cases, that the Crown does not desire to retain his services further. Such is the tenure under which every Civil servant holds his appointment in this country and in the Colonies.
295. (Mr. Harris.) As an inference from that, if th Secretary of State came to the conclusion that it was desirable to retire a Crown Agent at 65, there being no necessary rule or law in the matter, he could signify gather from what you say, "It is the Crown's pleasur that you should retire"?-Undoubtedly.
206. (Mr. Bailey.) Or at any age short of 657—\ any moment. That is the rule in the Civil Servic It is exercised of course reasonably and under proj conditions.
297. (Mr. Harris.) In the Civil Service I think there is an Order in Council in force with regard to that?-- Yes, there is a rule in the Civil Service under which every Civil servant, certainly in this country (it is fixed at different dates in different countries), termi- nates his appointment at 65 unless he has his service prolonged specially, which prolongation of service must be reported to Parliament.
298. (('hairman.) What is the next point you wish to bring forward I think that was almost the only point I mentioned.
299. (Mr. Harris.) 1 understand from your reply as to the status of the Crown Agents that you would hold that they are servants of the Colonial Governments paid out of Colonial funds (which, for convenience, are fumped together as une fund) and appointed by the Secretary of State as representing the Crown's final controlling power in Crown Colonies. Is not that so? -Yes,
300. Does it not follow that the Crown Agent is in employment under the Crown somewhere, though not under the Imperial Government He is appointest by rinary Civil servants in this entry in that he the Crown for a specific servies. He differs from the salary is not voted by Parliament, and he differs from the Civil servants in the Crown Colony in that his salary is not directly voted by the Crown Colony Government. He gets his salary out of a fund which is ered by certain charges which are levied on the Crown Colonies in respect of the work which the Crown Agents de
301. (hairman.) By the consent of the Secretary of Star Not only by the consent, but by the order of the Serdary of State.
32. (M. Harris) Does it not follow that a man transferred from the Imperial service to this Colonial service of a kind should be recognised by the Treasury as having been transferres) to public employmen under the Crown'--I should think it would follow rertainly. It depends upon what the Treasury ruling may be in particular cases. I do not know myself: they may lay down special rubs as regards what known as the Civil Service, but certainly the Civil servant and the Crown Agent are equally officers of the Crown, and a man who passes from the Crown
MINUTES OF EVIDENCE.
Mr. H. B. Cox, C.B.
service, as a Crown Agent, to other service under the Crown is only passing to a different kind of service, and the service is in both cases service under the Crown.
2103. (('hairman.) You are clear as to that?—Yes. 304. (Mr. Harris.) I wanted to bring out the point ather more clearly. The Treasury, I know, because I have had to argue it with them, have held that a man transferred from Imperial service to the service of the British South Africa Company is not transferred to service under the Crown, and I think on the whole, under the Acts they are right; but they have simi larly held that a man transferred to be a Crown Agent forfeits all claim on the Imperial Government. Are they not wrong in that I do not think the Treasury can be correct in that view, and certainly The two cases of transference of services to the British South Africa Company and transfer to service as a Crown Agent are entirely distinct. In the one case the service is under a chartered company to which has been granted the administration and government ertain territories which are, protectorates of the Crown, and in the other case the transfer of service as to service under the Crown, although of a different chracter to the service from which the man has been transferred.
245, (Sir Ralph Mour.) Their office is controlled by Secretary of State in the case of the Crown Agents? Undoubteslly,
9, (Mr. Harris) I think there is no doubt that
Treasury never raise a question as to the contin unty of service in the case of a man transferred sny to Maza or another Crown Colony; do they not always pay their share of his pension?-Certainly; it is Service under the Crown under the Government of Malta,
367, (Chairman.) What has been the practic, do you know, in the Crown Agents Office? Has the ser kace there been reckoned as continuous on a transfer fran a department of the Civil Servier-The only I know of is the case of Mr. Keith, who was a clerk in this office, and was afterwards transferred, or rather, removed himself, with the consent, of course, of the Secretary of State, to be secretary to the Crown Agents. He afterwards desired to come back into the Colonial Office, and he re-entered the Colonial Coffee, and I believe the Treasury, on that necasion, agred to consider his two periods of service in the Colonial Office as continuous for the purposes of pen- sion.
308. Was a special arrangement made in that case There was correspondence, but I do not know that there was anything that I could describe as being a special arrangement.
309, (Sir Ralph Moor.) I presume, in that case of Mr. Keith, the perind he was serving in the Crown Agents would be a period of service not pensionable at all! I cannot tell you, as a matter of fact, how that
was,
310. That would be a difficulty with regard to the question of pension, because that period while he was serving in the Crown Agents Office would be pension- able from that reserve fund of the Crown Agents, which is a Colonial fund?—Yes; but I think the point Mr. Harris desired to make was this, in which I agree, that the service under the Crown Agents did not constitute such a bronk of service as would dis- entitle him to draw a pension for the earlier period. You see, in the first instance he served in the Colonial Office for a period which would not carry pension; then he went to the Crown Agents and he stayed there, I think, a year or more; he then came back to the Colonial Office, and his previous service in the Colt- ial Office and his subsequent service in the Colonial Office were allowed to count as one period, so that he did not lose as he would otherwise have done, on account of a break of service, the benefit of the first poris he had served in the Colonial Office from the fact that he entered the Crown Agents Office in between.
311. But presumably he lost the period when he was in the Crown Agents Office as counting for pension- able service-He would lose the grant from Imperial Funds undoubtedly, but under the direction of the Secretary of State he was made pensionable for that
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[16 June 1008.
period, short as it was, from the Crown Agents' fund. That would be a matter for direction from the Secre- tary of State.
312. (Sir Francis Muwatt.) Can you tell me upon what grounds it was held that in the case of an oliver leaving for any purpose the pensionable service of the Government and going into a service which is not Government service at all the change did not put an ond to his previous service as counting for pension - I have not seen the correspondence with regard to Mr. Keith, but in my opinion, which I expressed be- fore Sir Francis Mowatt came in, service under the Crown Agents is service under the Crown.
313. 1 should have thought that what you have stated to be your opinion was not consistent with the clauses of the Superannuation Act. The Super- annuation Act allows pensions solely on a service terminated from one of three causes-age, permanent incapacity, or abolition of office. There is no power
to give pensions for any service pot terminated by one of these three causes. That this is service under the Crown I dụ not dispute, but it certainly is not service, I should say, within the Superannuation Act.-Per- haps not.
914. Suppose, for instance, man had gone from the Colonial Oilce into Army or Navy service. It would still be service under the Crown, but it would certainly not fall within the purview of the Super- annuation Act. However, if that was settled, we need not perhaps disenss it further.
815. (Chairman.) On the point of status I wanted to ask you some questions, and also later about re sponsibility: firstly, in the event of defalcation; secondly, the responsibility for servants in all cases, and finally, the reserve fund. On the point of status, which we are on. it seems to be uncertain how far their status is sufficiently within the terms of Crown Service to render them entitled to pensions for the service they have under the Crown Agents in the absence of express provisions, such as were laid down in the case of Mr. Keith. You cannot say for certainl That is when they come back to the Civil Service? 316. Yes. I cannot say for certain; it is a disputed point.
917. Or on final retirement --Or on final retirement. 318. When they come back to the public service it is a question as to how far their Crown Agents' service counts, unless there has been a special letter written, as in the case of Mr. Keith, in which case I think there is no question. is there-A question would arise not only I think in the case of Mr. Keith but in the case of Sir Montagu Ommanney.
319. What happened in the ease of Sir Montaga Ommanney I cannot tell you what happened in the ease of Sir Montagu Omniannez ¿ I never saw the papers with the terms under which he took office in the Colonial Office. He took office, of course, as Per- manent Under-Secretary of State, but how far his pre- vious service as Crown Agent counted for pension I cannot tell you.
320. You do not know I do not know; I have not seen the minutes upon which that was done,
321. (Mr. Gibson.) His service in the Crown Agents was not counted in his ultimate service --I think I know as much as this, that Sir Montagu Ommanney received two separate pensions, one from Imperial funds as Permanent Under-Secretary of State in the Colonial Office and another pension in respect of his service as a Crown Agent out of the Crown Agenta' fund.
322. (Sir Francis Mowatt.) He received & third military pension, did he not?—I believe Sir Montagu had previously commuted his pension in respect of his service as a Royal Engineer.
323, (Chairman.) In this case the question as k whether the service in the Crown Agents Office counted for pension did not arise, because he drew a separate Crown Agents' pension ?-That is so.
324. Had he not done so it would have arisen? — Yes.
325. With regard to the point of status, we asked Sir Ernest Blake whether, in his view, he and the staff were members of the Civil Service in any shape
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