PUBLIC RECORD OFFICE
Reference :-
LLC.O.885
19 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
16
15 June 1908.]
CROWN AGENTS' ENQUIRY COMMITTEE:
Mr. H. B. Cox, C.B.
or form, and his view is certainly not; that they are wholly independent of practically everybody, but I asked him from the papers, whether it is a fact that they were eligible for the Imperial Service Order and whether they could wear a uniform of any kind?-- All three Crown Agents certainly wear the uniform of the Civil Service. I do not know whether the junior members of their staff have been allowed by His Majesty to wear Civil Service uniform, but certainly the three Crown Agents have, and also members of the Crown Agents' staff have received the Imperial Service Order and also, I believe, the Imperial Service Medal, which, at all events, would be an indication that they were considered by His Majesty at the time those honours were given to be persons entitled to them, that is to say, persons in the service of the Crown.
326. Is there any provision in connection with the Imperial Service Order or with regard to the creation of the Imperial Service Medal, that the recipient must be in the Civil Service? Do you know what the words are cannot tell you the exact words, but I certainly always understood it was confined. at all events, to service under the Crown, which is quite sufficient of itself to indicate what I think cannot be disputed on other grounds, that the Crown Agents are servants of the Crown. As I said, they are cer- tainly not in the same position as ordinary Civil servants in this country. For instance, their salaries are not paid by money provided by Parliament, nor ar: their pensions but people can be servants of the Crown without being members of the ordinary Civil Service of this country.
327. (Sir Francis Mowatt.) Your attention has been no doubt directed to expressions in the *Memoranluna by Sir Penrose Julyan, and on page 6. in the middle of the second paragraph, speaking of early days, I find this: It was still found necessary by the several Colonial Governments that they should be represented, in comparatively private and semi-officia! capacities, by Agents empowered to transact for them all such financial, commercial and other business as was not undertaken by the Cub nisl Ofice itself. This was the case both with the Crown Colonies," and so on. Then if you will turn to † Colonial Office to frezsurg, Downing Street, 26th November, 1880." Sir Robert Herbert says: "No closer connection with, or more direct responsibility for, the transaction of the Agency than previously existed has been involved in this removal of the Crown Agents' Office; and, a pre- viously, they net in the discharge of their business not in any sense as Agents of Her Majesty's Govern- ment, but as the Agents of each Colony that employs them "That paragraph I have always taken as stating the business arrangement of the Crown Agents Office.
****
9. Surdy this is dealing with the responsibility of the Crown rather for what they do—no el ser connection or more dir et responsibility is involved; they art not in any ins the agents of Her Majesty's Government, but as the agents of vach Colony that employs them. Is that consistent with being in the service of the Crown, do you think?----1 think so certainly the service of the Colony is in a sense the service of the Crown. They are employed by the Governments of the Colonies; the Governor of the Colony represents His Majesty and the service in the Colonien is Crown service.
324. You must not pass that too far. E should have said that being in the service of the Crown qua direct control, or the advantages which con from being in the recognised service of the State, was not quite consistent with that expression. - † night point out that the Crown Agents act under the directions of the Secretary of State, for, instance their not being allowed to alter the general organisation of their office without leave from the Secretary of State: payments from their reserve fund are ordered by the Secretary of State, and they have to consult him before they can make them; similarly their original title was " Agents- General for the Crown Colonies." a title which seems to me to be more intelligible on the face of it than the term "Crown Agents for the Colonies." Sir Penrose Julyan in a letter of the 14th May, 1963, paragraph 31. wrote as follows • “We log to observe in conclusion that the title of ' Agents-General for Crown Colonies'
• See No. 4 in t. 375.
+ No, Kim C. 3075
is in the present day inappropriate, and is productive of considerable inconvenience and trouble. In the first place we are not Agents for Crown Colonies only, as we are largely employed for representative Colonies also" (that of course has now ceased; they are now Agents only for Crown Colonies and all the Colonies under responsible Governments have appointed commercial and financial agents of their own); " and in the second, apprehensions seem somewhat extensively to exist even anong officers of Colonial Governments, that we are private agents, open to engagements from all quarters, and the result is we are frequently called upon to reply to applications which, if it were known we were officers of the Crown, we should never be troubled with. Wo would most respectfully submit that a more fitting designation would be 'Crown Agents for the Colonies," and we trust that we may be authorised to assume that title." That is to say the Crown Agents, at that time at all events, whatever may be the view held by Crown Agents at the present day, considend they were ser vants of the Crown, and that it was desirable under certain circumstances to emphasise their position and their title. The result of that letter, which concerned a great many other matters, was that this matter went through without any demur, the Colonial Office con- sulted the Treasury, the Treasury saw no objection to the title, and the Secretary of State authorised the Crown Agents to assume that title which they have held ever since.
330. 1 raised the point as to service under the Crown really with regard to how far it was service available for the purposes of pension. I do not question that it is service subject to control, and to that extent of course it is service under the Crown.-I was direct- ing my remarks more specifically to questions from the Chairman with regard to the tenure and status of the Crown Agents, as to whether for instance they held office during pleasure, whether they held office during good behaviour, or whether they were officers of the Crown at all.
331. (Chairman.) Your evidence upon this point has beon peculiarly interesting, because it is strikingly at variance with the view which appears to prevail in the Crown Agents Office?--With regard to that I can only say that if they hold any different view now, it is not a view they have always held. because in 1863 they regarded themselves as officers of the Crown.
332. (Sir Ralph Moor.) Would you say that the Crown Agents were a Department created by the Seen. tary of State ur ervated by the Crown Colonies whom they serve?-A Department created by the Secretary af State undoubtedly.
333. (Chairman.) What is your view upon this mat- ter. On the one hand it may be contended, as Sir Ralph Moor points out, that the Crown Agents Office is in effect a Department of the Colonial Office, becauso they were created by the Secretary of State for the Colonies, and they make no change in their staff or in any way in relation to it without the consent of the Secretary of State; on the other hand Mr. Harris would contend that, while we are all agreed apparently that they are Crown servants, to shy that it is a Department of the Colonial Office is not correct, and They are more like the Emigration Ollivers ?--I do not think they can be called a Department of the Colonial Office in the strict sense, because they are allowedt a very wide discretion within certain limits. There are certain restricted limits within which the Crown Agents are allowed a very wide discretion in the con- duct of their business; in the matter for instance of raising a loan, when a Colony is authorised to borrow money, as to the time when, having regard to the state of the market, that loan should be raised, and matters of that sort.
331 (85) Francis Muratt.) I do not know if you answered the question directly, and I do not quite understand the memorandum. Your were askel
whether ir was the fact that the office of th Crown Agents was originally created by the Sea tary of State. I should rather wad this paper to mean that they were originally persons appointed by the governors of the different Colonies, and then it gus on la say that the extension of one Colomal Eninire rendered it necessary- "it was found was sary hy veral Colonial Governments that they should be represented in a semi-official capacity by agents "
MINUTES OF EVIDENCF.
Mr. II. B. Cox, C.B.
and that looks again rather as if they were created by the separate governors. At page U of the memorat- dum, at the top, there is thus passage: "This was the case both with the Crown Colonies acquired by Great Britain from other states by conquest or cession and with those other Colonies which, having institutions modelled more or less upon those of the parent country, held from the first a tuore in- dependent position than the Colonies directly subject to the Crown. Prior to the year 1833 the malaries of all these agents, and the Jensions of those win had earned them, all of whom were appointed either by the governors or by the legislatures of the Colonies enesened, appar to have been paid from Colonial funds." I am not disputing the case at all, but do you know that it is bibl ilat the office, as it now Casts, was created by the Secretary of State or whether he merely took it over ami måde such altera- tions in it as he considered necessary?—He exercised his general user-ridding power over the Culomes, not so much over the Crown Agents themselves as over th Colonies, because in the Crown Cologies, where the control of tiovernment and all other matters rests ultimately with the Scretary of State, the Secretary of State can control the Colonies in what they do For instance, if there was a Colony adopting an al lutely improper course which Parliament here could not sanction, he has the power to stop it and over-
rads it.
335. (Chairman.) And does?—Aud doeg.
336. The power has not lapsel ?--Certainly not. The was an answer to a question in the House of Cantons on the 2nd May, 1981, in which the Under-Serretary, I think, replied to the House that the Crown Agents were appanted by the Secretary of State as a guarantee to the Colonies of their respons sibility and efficiency; and I think if you come to reason it out you will se that it would obviously be difficult for five or six, or fen, or noore Crown Colonies to agree on an appointment of an agent to represent then all electively and individually. It obviously was a convinient arrangement, to put it no higher. than that. that the appointment to these three posts should be made by the Serretary of State in his gen ral control, not only of the Crown Agents them- selves, but of the Colonies for whom they act.
337. To your knowledge has any Colony ever dis puted the right of the Secretary of State to appoint à Crown Agent ?-Never to my knowledge, and I think I should have land of it if they had."
334. So that presumably it is accepted?—Yes, 330. To carry on this to the question of responsi bility, when we first met and discussed the evidence we should call, I raised a point-and the Committee agreed it was one to which they did not know the, answer as to where the ultimate responsibility rests for the money spent, or for money wasted. let us say, or for defalcations, supposing such a thing occurred, Of course, we know at present the very high standing of the Crown Agents, but, supposing in some future year you got hold of a wrong man, and that he used his position to make some large defaleation-take a very simple case; supposing he were asked either to undertake some great work or to place a loan, and he did, as he easily might do, put his hand on £100,000 and disappearel, who is responsible? Nobody at this table wens to know-In this first place the surety of the Crown Agent, who enters into a bond when he is appointed to account to His Majesty for all moneys which come under his hand,
340. When that is all gone, what then?—The ques- tion turns on the shape, so to speak, of the aetion or proceling against the Crown. The Crown is not responsible for the criminal default of its officer. The King can do no wrong." The Crown cannot b sue for a tort.
311. Who bears the loss-the taxpayers of the Colony or the taxpayers of this country?--It would come in the first instance out of the Reserve Fund: the Secretary of State. I suppose, would give direes tior: as to the money being paid out of the Reserve Fund to meet the deficiency.
342. That brings us to the last point I was going to ask you, thrrse fund. Who has control of that
• 21
17
[15 June 1998.
reserve fund? We understand it amounts to a very large sum now ?--Yes, the reserve fumi has always been regarded as a public fund under the completa control of the Secretary of State.
313. Has it always been so regardes ?—Always by this ullice.
I
311. (Str Ralph Moor.) A Colonial fund ?---A fund accumulated our of payments made by the Crown Colonies for certain Services rendered to them." think I am correct in saying that the actual stock in which that fund is invested is placed in the names, not only of the Crown Agents, but of the Permanent Under-Secretary of State for the Colonies. It seems to me that it is impossible in regard that res-rve tutal as the absolute property of the Crown Agents, when the stock in which any Surplus is invested is not in their names alone, and when they cannot deal with it in any way without the leave of the Secretary of State,
345. (Chairman.) So that there is no doubt in your view that the reserve fund-is under the control of the Secretary of State absolutely? Certainly.
It was created to guarantee the maintenance of the estab- lishment in the case of any sudden diercase in income, and to provide also retiring pensions and gratuities to members of the Crown Agents' staff, but these, pet- sions and gratuities have never been granted without a reference to the Secretary of State.
396. I still want to get at the true answer in this puzzle, where the responsibility rests in the case of great loss. First of all it falls on the sureties; then You think it would fall on the reserve fund?—1 admit That the question is a difficult one, because the con- dition of things as anomalous, but I do not think you could say that the Secretary of State had been negli- gent in his control of the Crown Agents, or that an action could lie against him, or that an action could lie against the Crown for damages in the event of default of a Crown Agent.
317. What about the other servants, the engineers or inspectors-They are persons employed by the Crown Agents, undoubtedly; they are not the servants of the Crown.
348. In your reply to Mr. Chamberlain, who neked you similar questions, you sail. This is a difficult question, not so much in point of law as in the appli cation of the law to the facts. I take it that the rela tion of the Crown Agents to their engineers, inspec- tors and other persons employed by them in the orlin- ary course of their business is that of principal and agent" that applies to all the employies generally? -Yes, outside their personal staff.
319,This being so, they" (the Crown Agents) "are answerable for every such art of negligence of their employees as is committed by them in the course of the service and for their benefit. If, on the other hand, their engineers, inspectors, &c., when engaged on their work for the Crown Agents, are not under their orders or control, and are, so to speak, imlepen- dent contractors" (that is, on those occasions) the He who con- Crown Agents would not be liable.
trods the work is auswerable for the workman: the remoter employer who does not control it is not answer. able.' I think the Committee would like to know if there is anything corresponding to this curious position in the Civil Service?-No, I am not aware that there is.
4192.
350. That is one of the things we are asked to advise upon? The case where it would arise, if at all, in the Civil Service would be in the ease of a great de- partment like the Admiralty, which employs contrac- tors to build its battleships and supply stores, and so In that case there have been actions. arbitra- tion, and ordinary legal proceedings, between the Admiralty and the contractors, but in the case of the Crown Agents and the Colonies, if I may go away from the contractors at the present moment, but for the fact that both are under the control of the Serre- tary of State, you undoubtedly would have legal pro- ceedings arising on various occasions, when the Crown Agents, for instance, had supplied articles which the Colorfies said were not up to sample, or not what they ordered, and so on. Cases have arisen, not often, but on one or two occasions, where there has been a dis- pute of that kind, and in that case the Secretary of State, who had the ultimate control of both of them.
C