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C.O.882/12

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BI REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO.

35019 C.R. [No. 10].

112

No. 46.

THE SECRETARY OF STATE to THE GOVERNOR.

(Confidential.)

Downing Street, 14th May, 1932.

SIR,

I HAVE the honour to acknowledge the receipt of your Confidential despatch of the 4th of January,* in which you report fully on the circumstances of the termina- tion of the agreement of Mr. C. J. M. Hunter, Civil Engineer, Electricity Department. I have also received your telegram of the 27th of March,† from which I gather that the notice given to Mr. Hunter expired on the 12th of March.

2. In the circumstances it would appear that, in the particular case of Mr. Hunter, no further action is now possible.

3. The circumstances reported in your despatch of the 4th January have, however, caused me some anxiety, and I think it well to deal at some length with the constitutional position disclosed.

4. I have reconsidered the views expressed in my telegram of the 9th December‡ in the light of your despatch and of the precise wording of Article 87 of the Order in Council. While in normal circumstances the termination of an officer's agreement, in strict accordance with the terms of that agreement, cannot be regarded as an altera- tion in the conditions of his service, yet circumstances may obviously arise in which the officer may have a moral right to something more than the strict letter of the agreement. In such a case the Governor may properly express the opinion that the enforced termination of the agreement is, in the words of Article 87" to the prejudice of the officer " and it thereupon becomes open to the Secretary of State to refuse to approve of any vote of the Council which results in such termination, and to authorize the Governor to use the powers given by Article 87 (4) to prevent its enforcement.

:

5. There is, however, another aspect of the question which was not under my consideration at the time your telegram of the 2nd of December was received, but which has been brought to my notice as the result of discussion with Mr. Jackson, the Attorney-General, and by the perusal of your despatch of the 4th January. The position appears to be that the agreement for a further year's service with Mr. Hunter had been entered into on the advice of the Executive Committee concerned. In these circumstances you were fully entitled to enter into an agreement with Mr Hunter and to expect to be put by the State Council into a position to carry it out. The decision of the Council not to provide the necessary salary in effect was intended to compel you to use your powers to terminate Mr. Hunter's agreement, i.e., to perform an executive action which you had been advised by the Executive Committee concerned not to perform.

6. The division of responsibility between the Governor, the Executive Committee, and the State Council in establishment matters is not precisely defined, but it appears to be governed by Articles 39, 86, and 22 of the State Council Order in Council and by Article I of the Royal Instructions of the 22nd of April, 1931. In my opinion the general effect of these provisions is to require the Governor, in whom the appoint- ment and dismissal of public officers is vested, in general to follow the advice of the Executive Committee concerned on questions affecting the numbers and remuneration of the staff of the Departments under the control of that Executive Committee, except in so far as he may consider it essential to act contrary to that advice (a) for the protection of the interests of individual officers, or (b) in a matter declared by him to be of paramount importance. The declaration under (b) could in general be given only when the Governor is satisfied that his action was necessary to avoid real inefficiency in the public service.

•

7. In the particular case of Mr. Hunter, as you had in effect been advised by the Executive Committee concerned that notice of termination of his agreement should think, have been entitled to act upon that not be given to this officer, you would, advice, and if no provision for payment of salary had been made by the State Council, to declare the matter to be of paramount importance under Article 22 of the Order in Council. In justification for your action it could have been argued that efficient administration becomes impossible if the recommendations of the Executive Com-

* No. 44. + P.F. 35019 [No. 9]: not printed.

P.F. 35019 [No. 5]: not printed.

113

mittee concerned in matters of the ordinary working of the Departments under their control are liable to be reversed by the full Council on grounds which in your opinion are inadequate. The Governor is given by the Order in Council certain substantial powers which, in my opinion, he should not hesitate to use when he has reason to anticipate that inaction will result in serious inefficiency or breakdown in the administrative machinery.

I have, &c.,

C. 93053/32 [No. 2].

(No. 299.)

No. 47.

P. CUNLIFFE-LISTER

THE SECRETARY OF STATE to THE GOVERNOR.

SIR,

Downing Street, 10th June, 1932. I HAVE the honour to inform you that I have received and considered the letter* addressed to you by Sir Henry De Mel, member for Puttalam, forwarding under Article 23 (2) of the (State Council) Order in Council a joint statement sub- scribed to by himself and twenty-four other members of the State Council, setting out their reasons for objecting to the declarations made by you in respect of the Enabling Bill and the votes for Passages and Holiday Warrants. I have also received a copy of the lettert addressed to you by Mr. G. K. W. Perera, member for Matara, cover- ing a separate statement of his objections to the cases in which you have made declarations under Article 22 (1) (b) of the Order in Council.

2. I shall be glad if you will cause the writers of these statements to be informed that I have received and carefully considered their representations, but that your action was taken after prior consultation with the Secretary of State and with his full approval, and has formed the subject of a report by you to me as required by Article 23 (1) of the Order in Council. The Order in Council definitely provides special powers for the Governor in matters which he considers to be of paramount importance to the public interest, or essential to give effect to any provisions of the Order; and those powers have, in my opinion, heen properly exercised in the cases now under consideration.

3. As regards the Ordinance to enable a temporary levy to be imposed on the salaries and wages of persons employed in the Public Service, it may be pointed out to the signatories that the Governor has always had the power, subject in certain cases to the approval of the Secretary of State, and with due regard to contractual obliga- tions, to reduce the salaries or wages of Public Servants without the consent of the Legislature, while the Legislature has not the power so to reduce salaries, except in so far as its power to refuse or reduce a money vote for the payment of salaries or wages might operate to force a reduction of salaries and wages. Further, even this power of refusal or reduction of a money vote is subject to the limitations imposed on it by Article 87 of the Order in Council. The passage of the Enabling Ordinance was only rendered necessary in order to avoid the reduction of salaries and wages prejudicially affecting the pensions of the public officers concerned and the pensions of their prospective widows and orphans. It would have been entirely contrary to the spirit of the Order in Council to delegate to the Legislature the power to reduce or vary the salaries of public officers. The levy was necessitated by the financial position of the Island, and the passage of the Ordinance was quite properly considered to be of paramount importance to the public interest.

4. As regards the votes for the passages of public officers and for holiday warrants, it should be pointed out to the signatories that Article 87 of the Order in Council definitely provides for the preservation of the conditions of service of public officers. The proposal to deprive the public officers concerned of the rights in respect of Passages and Holiday Warrants had not been approved by the Secretary of State, and Article 87 (4) of the Order in Council makes definite provision for the use of the Governor's powers under Article 22 in order to preserve any rights or privileges which by Article 87 may not be varied without the approval of the Secretary of State.

* Enclosure 6 in No. 45.

† Enclosure 7 in No. 45.