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CROWN AGENTS' ENQUIRY COMMITTEE:
SECOND, DAY,
Monday, 15th June, 1908.
At the Colonial Office, Downing Street.
PRESENT:
COLONEL J. E. D. SEELY, D.§.0., M.P. (Charman).
The Rt. Hon. Sir F. MowATT, GC.B., 1.8.9.
Sir RALPH MOOR. K.U.M.G.
H. J. GIBSON. Esq., V.B.
R. BAILEY. Esq., M.V.O., L.$.0.
Sir ALBERT SHICER, Bart., M.P. C. A. HARRIS, Esq., 4'.B., C'.M.ti.
A. J. HARDING (Secretary).
Mr. II. BERTRAM Cox. C.B., called and examined.
201. (Chairman.) We are very glad to have the privi lege of hearing your legal opinyon 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 appointed. appointing them to be Crown Agents. Such an appointment primi 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 handed to the Witness.)
203. 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.
294. You think that is quite clear?--It is perfectly clear. It has been laid down in cases again and again. and it is fast 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 terms do public servants hold their offices? All offices, whether limited as to tenure by a specified time or not so limited, are held subj ct to one of two conditions: they are holl either at pleasure' or 'during good behaviour. and unless otherwise stated they held at pleasur Similarly in a case which an in the Court of Appeal in the year 1898, the case of Dunn v. The Queen. Lord Herschell, who was a Member of the Court of Appeal, on that veasia mel the following language which will be found on page 119 of the I aw Reports for 1806 (1 Q. B. D.): "I take it that persons employed as the petitioner was in the service of the Crown, except in cases where there is some statutory provision for a higher tenure of office, are ordinarily engaged on the understanding that they d 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 rivil servants in general, namely, that the Crown may put an end to the employment at its plen stir". I find nothing in the letter, which is addressed to Ma * which stat that he holds his office
on any other tenure, such as during gol behaviour. which is the way in which a Judge is appointed, and various other officers; for instance I believe the officers of the Secretary of State for Tudia in Council 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 misconduct in his offic which rendered it undesirable that he should continu
to hold it. Unless such a condition is imposed, primò furic every servant of the Crown holds during the plea- sure of the Crown and his appointment can be term- 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 hi 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 n necessary rule or law in the matter, he could signify 1 gather from what you say, "It is the Crown's pleasu that you should retire"-Undoubtedly.
296. (Mr. Bailey.) Or at any age short of G5 ?— \` any moment. That is the rule in the Civil Service It is exercised of course reasonably and under proj conditions..
297, (Mr. Harris.) In the Civil Service 1 think there is an Onler 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 86 unless he has his service prolonged specially, which prolongation of service must be reported to Parliament.
2. (Chairman.) What is the next point you wish to bring forward?-I think that was almost the only point I mentioned.
299. (Mr. Harris.) I understand from your reply as to the status of the Crown Agents that you would holl that they are servants of the Colonial Governments paid out of Colonial funds (which, for convenience, are lumped together as one fund) and appointed by the Secretary of State as representing the Crown's Ginal controlling power in Crown Colonies. Is not that sol ~Yts.
300. Does it not follow that the Crown Agent is in employment under the Crown somewhere, though not under the Imperial Governme He is appointed by the Crown for a specific vie. He differs from the ondary Civil vants in this country in that hi salary is not vobal by Parliament, l he differs fro 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 18 created by certain charges which are levied on thy Crown Colonies in respect of the work which the Crown Agents de.
301. (airman.) By the consent of the Secretary of Stag Nod only by the consent, but by the order of the Secretary of State.
32. (M. Harris.) Does it not follow that a man transferret from the Imperial service to this Colonial service of a kind should be recognised by the Treasury as having been transferred to pulle employment under the Crown? 1 should think it would follow. certainly. It depends upon what the Treasury ruling may be in particular cases. I do not know myself:
they may lay down special rules as regards what is known as the Civil Service, but certainly the Civil Servant and the Crown Agent are equally officers of the Crown, and a man who pass 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.
3113. (Chairman.) You are clear as to that?—Yes. 304, (1. 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 hell 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 1 think on the whole, under the Acts they are right; but they have simi larly held that a man transferred to be a Crown Agout forfeits all claim on the Imperial Government. A they not wrong in that?-1 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 thee service is under a chartered company to which has been granted the administration and government < vertain territories which are protectorates of the Crown, and in the other case the transfer of service 1st service under the Crown, although of a different eterneter to the service from which the man has been tran-ferred.
36, (Sir Balph Moor.) Th-ir oflice is controlled by Secretary of State in the case of the Crown Agents? Undoubtedly.
4, (M). Harris.) I think there is no doubt that the Treasury never raise a question as to the contin- uty of service in the case of a man transferred say to Mata or another Crown Colony; do they not always Lay their share of his, pension ?—Certainly; it is Service under the Crown under the Government of Malta.
IT, (Chairman.) What has bơm the practics, du you know, in the Crown Agents Office? Has the ser- Vas there lven reckoned as continuous on a transfer
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department of the Civil Service?--The only
1 know of is the case of Mr. Keith, who was a clock 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 'rown Agents. He afterwards desired to come back into the Colonial Office, and he re-entered the Colonial Orlice, and I believe the Treasury, on that occasion, agrod to consider his two periods of service in the Colonial Office as continuous for the purposen of pen- sin.
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.
909, (Sir Bulph Moor.) 1 presume, in that case of Mr. Keith, the period he was serving in the Crown Agents would be a period of service not pensionable at all cannot tell you, as
matter of fact, how that
319, 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 Hot constitute such a break 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 Colo- nial Office and his subsequent service in the Colonial Office were allowed to count as one period, so that he did not lose, as would otherwise have done, on account of a break of service, the benefit of the first period 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 Funda undoubtedly, but under the direction of the Secretary of State he was made pensionable for that
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[15 June 1908.
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 officer 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.
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313. I 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 service terminated from one of threo causes-age, permanent incapacity, or abolition of office. There is no power to give pensions for any service not terminated by one That this is service under the of these three causes. Crown I do not dispute, but it certainly is not service, I should say, within the Superannuation Act.--Per- haps not.
314. Suppose, for instance, a man had gone from the Colonial Office into Aring 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 discuss it further,
315. (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 certain? That is when they come back to the Civil Service? 316. Yes. I cannot say for certain; it is a disputed point.
317. 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 Montaga Ommanney.
319. What happened in the case of Sir Montagu Ommanney-I cannot tell you what happened in the case of Sir Montagu Ommanney; 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 Agenta 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 a 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 t 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? —
Yea.
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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