PUBLIC RECORD OFFICE
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C.O.885
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19 PUBLIC RECORD OFFICE, LONDON
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13 June 1908.]
CROWN AGENTS' ENQUIRY COMMITTEE:
Mr. H. B. Cox, C.B.
or form, and his view is certainly not; that they a 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 Oner 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 Bervice 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 thuse 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-I cannot tell you the exact words, but ! 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 *Memoranduta by Sir Penrose Julyan," and on page 6, in the middle of the second paragraph, speaking of early days, 1 find this: "It was still found necessary by the several Colonial Governments that they should be represented, in comparatively private and semi-official capacities, by Agents empowered to transact for them all such financial, commercial and other business as was not und rtaken by the Colonial Office itself. This was the case-both with the Crown Colonies," and so on. Then if you will turn 15. *~ Colonial Office to Trensury. Downing Street. 28th November, 1880," Sir Robert Herbert says: "No closer connection with, or dire et responsibility for, the transaction of the Agency than previously existed has been involved in this ren,uval of thể Crown Agents' Oßre; and, as pore- viously, they act in the discharge of their business not in any sense as Agente of Her Majesty's Govern- ment, but as the Agents of each Clony that employs them" That paragraph I have always taken as stating the business arrangement of the Crown Agents Office.
more
99%. Surely this is dealing with the responsibility of the Crown rather for what they no closer connection or made dir et responsibility is involved;
hes et not in any
ns the agents of Hr Majesty's Government. but as the agents of vach Colony that employs them. Is that consistent with
bring in the service of the Crown, do you think * -T 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 Colonies is Crown service,
32. You must and pitss that too far. I shoul have said that being in the service of the Crown qua direct control. or the advantages which come from being in the recognised service of the State, was not quite consistent with that expression. Í naght pant 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 offics 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 origina' title was Agents- General for the Crown Colonies." a tith 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, 1863, paragraphi 31. wrote as follows - “ We beg to observe in conclusion that the title of 'Agents-General for Crown Colonies '
• Ser No. & in C. 375.
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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 Columes 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 among 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, considered 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- suited 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 fi control, and to that extent of course it is service under the Crown.-1 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 Moar.) Would you say that the Crown Agents were a Department created by the Secre- tary of State or created by the Crown Colonies whom they serve A Department created by the Secretary of 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 Culonies, 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 say that it is a Department of the Colonial Office is not correct, and they are more like the Emigration Officers? I do not think they can be called a Department of the Colonial Office in the strict sense, because they are allowed a very wile 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 raisel, and matters of that sort.
331 N Francis Moratt.) I not know if you answer the question directly, and I do not quite understand the memoentulum. You were asked
whether it Wh the fact that the other of the Crown Agents was orignally erented by the Sem tary of State. I should rather rend this paper me that they were originally persons appointed by the governors of the different Colonies, and then it goes on to say that the extension of our Colomual Empire rendered it necessary- "it was found revere sary by several Colonial Governments that they should be represented in'a s-uni-official capacity by ag nts **
MINUTES OF EVIDENCF.
Mr. H. B. Cox, C.B.
and that looks again rather us if they were created by the separate governors. At page & of the memorant- dum, at the top, there is this passage: "This was the case both with the Crown Colonies nequired by Great Britain from other states by conquest or cussion and with those other Colonies which, having institutions” modelled_more or less upon those of the parent country, held from the host a more m- depuudent position than the Colonnes directly subject to the Crown. Prior to the year 1833 the salaries of all these agents, and the pensions of those who had earned them, all of whom were appointed either by the governors or by the legislatures of the Colonies cone-enisl, appear to have been paid from Colomal funds." I am not disputing the case at all, but do you know that it is held that the office, as it now Exists, was created by the Secretary of State or whether he merely took it over and mife' such altera- tions in it as ho considered necessary?—He exercised his general over-riding power over the Colonies, not so much over rite Crown Agents themselves as over the Colonies, because in the Crown Colonies, where the contred of Government and all other matters rests. ultimately with the Sceretary of Stute, the Secretary of State can control the Colonies in what they do, For instance, if there was a Colony adopting an abse larly improper course which Parlament fiere could no Sanction, he has the power to stop it and over-
is it.
335, (Chairman.) And does?—And does.
336. The power has not lapsel --4rtainly not. The was an answer to a question in the Hutse of Commodes on the 2nd May, 11, in which the Under-Secretary, I think, replied to the House that the Crown Agents were appointed by the Secretary of State as a guarantee to the Colonics of this ir respon sibility and efficiency; and I think if you come to Tenso z nut you will see that it would obviously be difficult for five or six, or ten, or more Crown Colonies to agree on an appointment of an agent to represent them all collectively and individually. It obviously was a convenient arrangement, to put it no higher than that. that the appointment to these three posts shall be made by the Secretary of State in his general 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 a Crown Agent?-Never to my knowledge, and I think I should have heard of it if they had."
33. So that presumably it is acrepteil?—Yes. 339. To carry on this to the question of respons1- Fality, when we first met and discuss the evidence we should call. I raised a point-and the Committee agreed it was on 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 ford falcations, supposing such a thing occurrel. Of course, we know at presint the very high standing of the Crown Agents, hat, 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 in undertake some great work or to place a loan, and he did, as he easily might do, put his hand on £10,000 and disappeared, who is responsible? Noholy at this table seems to know ?—In the first place the surety of the Crown Agent, who enters into a bond when he is appointed to scronut 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 action or proceedings against the Crown. The Crown is not responsible for the criminal default of its officer, * The King ran du no wrong.” The Crown cannot b stel 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 Riserve Fund: the Secretary of State. I suppose, would give direc tion: as to the money being paid out of the Reserve Fund to meet th deficiency.
342. That brings us to the last point I was going to
ask you, th reserve fund. Who has control of that
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[15 June 190S.
reserve fund? We understand it amounts to a very large sum ow?--Yes, the reserve fund has always been regarded as a public fund under the complete control of the Secretary of State.
343. Has it always been so regardoi?—Always by tlus ollice.
I
311. (Sir Halph Moor.) A Colonial fund? A fund accumulated out of payments made by the Crown Colomes for certain services rendered to them. think I am correct in saying that the actual stock in which that fund as invested is placed in the nanes, not only of the Crown Agents, but of the Lermanent Under-Svertary of State for the Colonies. It seems to me that it is impossible to regard that reserve fund 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.
315, (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 subien deer as in income, and to provide also r tiring pensions and gratuities to members of the Crown Agents' staff, but the pen. sions and gratuities have never been granted without a reference to the Secretary of State.
346. I still want to get at the true answer to this puzzle, where the responsibility rests in the cast of great loss. First of all it falls on the sureties; then you think it would fail on the reserve fund — wimit that the question is a difficult one, because the con- dation of things is 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 coubi lie against the Crown for damages in the event of default of a Crown Agent.
317. What about the other servants, the enginers or inspectors?-They are persons employed by the Crown Agents, undoubtedly; they are not the servants
of the Crown.
318. In your reply to Mr. Chamberlain, who asked you similar questions, you said. This is a diflicult question, not so tunch 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 enginers, uuspers tors and other persons employed by them in the ordin ary course of their business is that of principal and agent that applies to all the employees generally i --Yes, outside their personal staff.
the
349.This being so, they" (the Crown Agents) "are answerable for every such act 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, indepen- dent contractors" (that is, on those occasions) Crown Agents would not be liable. He who con- trol the work is answerable for the workman: the remoter employer who does not control it is not answer- 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.
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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 case of a great de- partment like the Admiralty, which employs contrac fors to built its battleships and supply stores, and so cart. In that case there have been actions, arbitra- tions 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 Secre- tary of State, you undoubtedly would have legal pro- ceilings arising on various occasions, when the Crown Agents, for instance, had supplied articles which the Colonies 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 kinl. and in that case the Secretary of State, who had the ultimate control of both of them,
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