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PUBLIC

RECORD OFFICE

Reference :-

PELLIC.O.882/11

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH-NOT TO

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2. 1 drafted this Article on verbal instructions given to me by His Excellency the Officer Administering the Government at Queen's House on the 8th July, and its intention is to give effect to the proposal made in the following terms at the conclusion of paragraph 10 of His Excellency the Governor's despatch No. 292 of the 7th August, assuming that proposal to be approved:

I regret therefore to feel myself constrained to recur to the alternative envisaged in that despatch by asking Your Lordship to appoint a Salaries Commission without further delay, and to cause provision to be made in the Order in Council for the carrying out; with effect from 1st October, 1931, of the decisions of Your Lordship upon the recommendations of that Commission." I feel that there are some serious difficulties in the way of including a provision of this nature in the Order in Council in view of the circumstances in which the new Constitu- tion was accepted by the Legislative Council, and I have accordingly felt bound to explain these difficulties in the observations which follow. In doing so I shall be obliged to refer also to the Governor's powers for the preservation of existing rights.

3. I have not found it possible to devise a provision in accordance with my instructions which does not involve a power in the Governor to appropriate the neces sary funds without the consent of the Council if this should be refused. It might conceivably be necessary in an extreme case that this power should be exercised in respect of the whole of the Civil List vote which, 1 understand, amounts at present to approximately, nine million rupees. Once effect had been given to the approved recommendations of the Commission, the rights acquired by public officers would be existing rights which could not be impaired without the consent of the Secretary of State and which, consequently, must be preserved, in case of necessity, by the exercise In effect the Governor's power to appropriate of the Governor's special powers.

the necessary funds, without the consent of the ('ouncil if consent is refused, must be a continuing power.

4. As indicated in the preceding paragraph, a power in the Governor to appro- priate money to the extent necessary to preserve existing rights would appear to be required even if there were no intention to use a power of that nature for the purpose of enlarging those rights. I am aware that this view is not entirely in accord with the construction put upon the Special Commissioner's proposals in paragraph 60 of the Governor's published despatch of the 2nd June, 1929, on the new Constitution and confirmed in paragraph 22 of the Secretary of State's reply of the 10th October. It seems there to be assumed that, for the preservation of existing rights, it would be sufficient that no proposal for their diminution should take effect without the consent of the Secretary of State. No difficulty would arise if the provision by which existing rights were given were one which would continue in operation if no change were made.

While this is the case in regard to pensions to officers and their dependants, the position is not the same in regard to those matters for which provision must be made in the Annual Appropriation Law, and I see no escape from the necessity of reserving to the Governor a power to appropriate funds for payments authorized by expiring laws if the Council declines to renew the expiring authority.

5. Even if existing rights are preserved only for officers whose appointments are subject to approval of the Secretary of State (Donoughmore Report, page 137, and His Excellency the Governor's published despatch of 2nd June, 1929, para- graph 60), it will be evident that the Governor's power to appropriate funds will extend, in theory, to a very considerable sum. The grant of this power may come as a surprise to the public in consequence of those passages in the despatches of His Excellency the Governor and of the Secretary of State to which I referred in the previous paragraph, but it can be used only for the preservation of rights granted by the legislature itself, and it seems possible to hope that the acceptance which has been given to the principle that existing rights cannot be impaired will make it unnecessary to use it at all. The position will be very different if a power to appro- priate money against the will of the Council is to be taken, not to preserve rights granted by its predecessor, but to discharge liabilities imposed on the Colony by the Secretary of State, after discarding the recommendations of a Committee of the present Council on the same subject.

6. It seems to me that it will be very difficult to rely at this date on the warning given in paragraph 58 of His Excellency the Governor's published despatch of the 2nd June, 1929. to justify the inclusion of this power in the Order in Council. His Excellency there said that in the event of the failure of the local Committee to solve their problem satisfactorily, he would ask for the appointment of a Salaries Com- mission from Great Britain as a condition of the grant of the new Constitution. If this had been done the Legislative Council, when the new Constitution was offered

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to them, would have had the whole position before them and could have rejected the Constitution if they were not prepared to accept the full implications of the appoint- ment of a Salaries Commission as these are explained on pages 133 to 137 of the Special Commissioners' Report. Whatever the exact meaning of paragraph 21 of the Secretary of State's despatch of the 10th October, 1929, may be, the upshot of what followed was that, without waiting to see whether the report of the local L'om- mittee was satisfactory or not-it was not received until January in the following ycar-Government offered, and the Legislative Council accepted, a new Constitution which it was definitely stated by the Secretary of State that no provision for the In view of this fact, I appointment of a Salaries Commission was to be contained. venture to suggest that it will be very difficult to justify the inclusion in the Order in Council of a provision so important in its implications in regard to the appropriation of money unless the proposal to include it were definitely put to the present Council. Moreover, it is becoming daily more difficult to impose, with justice, any further condition upon the grant of the new Constitution for, by the establishment of machinery for the registration of voters, a definite step has been taken to bring it into existence and expense is already being incurred by prospective candidates in the faith that the Constitution will be what the Legislative Council accepted. If, on the other hand, we introduce this provision into the Order without warning, it will not be easy to resist a charge of breach of faith or to dispel a resulting atmosphere exceedingly unfavourable to the success of an experiment depending so largely upon good will. There is, of course, nothing in the despatches exchanged which would preclude the appointment of a Salaries Commission, either now or at any future time, and if it is inexpedient to defer the appointment, a choice seems to lie between the early announce- ment of our intention to include in the Order in Council provision to secure the accept- ance of approved recommendations and the omission from the Order in Council of In the first case we would have to take the risk. any reference to the Commission.

of the rejection of the new Constitution altogether, and there can be little doubt that we would be accused of unfairness in introducing new conditions at this date. In the second case we would probably be asked what steps we proposed to take to give effect to the Commission's recommendations and we could only reply that they would he laid before the Council and that our action would depend on what they were and on what attitude the Council took towards them. If, as seems to be anticipated, the recommendations of a Commission would not be very startling, we might find it possible to secure their acceptance, either by the present Council or by the State Council, if we had not first issued a threat to enforce them whether they were accepted or not. But in view of what was said in the Special Commissioner's Report and in His Excellency's published despatch, little doubt would he left in any one's mind that certification," under some authority to be obtained in case of need, would be the last resort. In either case it seems difficult to avoid complicating the introduction of the new Constitution to a considerable extent.

I am, &c.,

The Honourable

The Colonial Secretary.

C. 73230/9/30 '[No. 35].

No. 22.

E. ST. J. JACKSON,

Attorney-General.

THE OFFICER ADMINISTERING THE GOVERNMENT to THE

(Confidential.)

MY LORD,

SECRETARY OF STATE.

(Received 18th August, 1930.)

Queen's House, Colombo, 29th July, 1930.

I HAVE the honour to invite Your Lordship's attention to the twelfth paragraph of my Confidential despatch of 23rd July, 1930,* on the subject of the appointment of a Salaries Commission.

2. In that paragraph I indicated the possibility of introducing a simple overseas allowance system in the shape of a 12 per cent. allowance on sterling salaries con- verted at 1s. Gd. to the rupee. I did not actually recommend the adoption of that

* No. 21.