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PUBLIC RECORD OFFICE

Reference :-

C.O.882/11

PUBLIC RECORD OFFICE, LONDON

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

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Rs.36,000/- represents the salary of the Legal Officer of State, the remaining part being due to additions to clerical staff. Omitting, however, an addition of £400 to the salary of the principal Legal Officer, which increase has already been approved by Your Lord- ship, also the provision for a second assistant legal draftsmati and a shorthand-typist whose appointments would be necessary apart from the scheme, the net additional mean cost of the scheme is little more than Rs.20,000/-.

7. I shall be glad to receive Your Lordship's approval of the scheme by telegram.

Enclosure 1 in No. 59

I have, &c.,

H. J. STANLEY.

Governor.

MEMORANDUM ON THE FUNCTIONS OF THE ATTORNEY-GENERAL IS THE NEW

CONSTITUTION.

1. The functions of the Officers of State are discussed on page 67 of the Donoughmore Report and those of the Attorney-General, in particular, on pages 70 and 71. The Commissioners were of opinion that some re-distribution of the present functions of the Attorney-General will be necessary and, in addition to directing special attention to his staff, they proposed the separation from his department of the Offer responsible for the drafting of legislation.

2

When dealing, in an earlier communication, with the subject of the staff which the Legal Draftsman's Office, when separated from the Attorney-General's Department, would require, I saw no obstacle in the way of the Commissioners' proposal, provided that the staff of the Draftsman's Office were strengthened suficiently to make possible a greatly increased output of draft legislation and were so constituted that it could function without that participation by the Attorney-General in the settlement of drafting questions which its present organization contemplates. I pointed out that the present organization, for which the Attorney-General is responsible, has not been able to meet adequately the needs of the present Govern- ment, and that we could not easily contemplate a situation in which Ministers and Executive Committees would have just cause for complaint that their efforts to discharge their responsibilities were rendered fruitless by the failure of a department of Government, not in their control, to provide them in due time with drafts of legis- lative measures which they desired or were pledged to introduce. The provision of a staff of the requisite character is not free from practical difficulty and will entail an additional expense which I estimate at, approximately, Rs.25,000 a year. apart from diffienities of that nature, certain others, more directly arising out of the Commissioners' proposals, have recently been suggested to me by the closer study of the new Constitution which the preparation of the draft Order in Council has entailed, and I feel that these should be stated in order that it may be decided whether the Commissioners' proposals will establish the best organization for the working of the new Government.

But,

3. The procedure for the origination of Bills described on pages 54 and 55 of the Donoughmore Report, paragraph 28, suggests that, apart from advice on pre- liminary legal questions, the position of the Attorney-General in regard to Bills intro- duced into the State Council will be the same as that of the other Officers of State; that is to say, he will not be concerned with any Bill which does not relate to a subject in his charge. A consequence of this procedure would be that a Minister in charge of a Bill would be expected to pilot it through the State Council and its Committees in the same way in which a Minister pilots a Bill through the House of Commons, to be thoroughly familiar with all the details of its structure, to be able to answer all questions of interpretation, and to accept or reject an amendment with full appreciation of the effect of the proposed amendment upon the other clauses of the Bill. I doubt very much whether, for several years to come, Ministers will have the necessary experience to give the Council and its Committees that assistance in the passage of Bills which will be necessary if confused legislation, with all its expensive consequences, and great waste of time in discussion, are to be avoided. I think that for several years to come lack of experience, as well as the tradition established in the present Council, will lead Ministers to turn frequently to the Attorney-General for assistance and he will not be in a position to give it. Yet if he fails to give it, he will fail in the principal duty of an Officer of State, the assistance of Ministers and Executive Committees in the formulation of their policy and in the execution of their approved

decisions.

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4. Accordingly I suggest that it will be desirable in the new Constitution that the Attorney-General should be thoroughly familar with the details of all legal measures and with the policy underlying their introduction in so far as knowledge of this may be necessary to explain those details. If he is to be in that position his duties would be substantially different from those which the Donoughmore Commission assigned to him and, by the separation of the Legal Draftsman's Office, the Attorney-General would be deprived of the easiest means of equipping himself for those duties.

3. In 1918 a Committee on the machinery of Government in England, under Lord Haldane's Chairmanship, advised that the Lord Chancellor, as the Chief Minister of the Government in the House of Lords, should be placed in the same position in regard to legislation as that which I have suggested for the Attorney-General in para- graph 4. The Committee gave as their reason the fact that there is, as a rule, no Minister in the House of Lords who can give the House that assistance in regard to Bills which it .requires, and they added that the Parliamentary Counsel's Office (in which Bills are prepared) should be placed under the Lord Chancellor and that he should be the channel through which instructions for the preparation of Bills should pass.

6. The Donoughmore Commissioners appear to have intended a restriction of the functions of the Attorney-General to something like those which English tradition assigns to his office and, in proposing the separation of the Legal Draughtsman's Office, they point out that the corresponding officers in the United Kingdom are independent of the Law Officers of the Crown. But the Attorney-General in England does not perform the same functions in regard to legislation which the Attorney-General is and will be expected to perform in Ceylon, quite apart from the actual drafting of Bills. He is not, normally, a member of the Cabinet nor, by consequence, is he concerned in the general business of Government to anything like the same extent as the Attorney- General in Ceylon. I think there can be little doubt that the new form of Govern- ment will require that the Attorney-General should continue to exercise similar func- tions to those which he exercises at present, and that, if there is any change, it will be one which will involve him more closely in the work of the Board of Ministers and the State Council and its Committees, and will lessen what contact he still retains with the functions which local law assigns to his Office and with the purely legal work of his Department. The coming situation, as I foresee it, will not permit a change in the direction suggested by the Special Commissioners, but may be found to require one in the opposite direction.

7. If my view is correct, the separation of the Legal Draftsman's Office from the Attorney-General would not assist the working of the new Constitution. The Special Commissioners suggested this step "in order that the Attorney-General may be freed from drafting responsibilities." I do not know who, in their intention, would assume them, but it will be apparent from what I have already stated that in the Council and the Board of Ministers those responsibilities will in reality remain with the legal officer of State, and that he cannot free himself from them. What is important, and indeed essential, is that he should be freed from participation in the actual drafting of legislation to the extent that the present organization of the Drafting Office requires. 8. In the duties of the Attorney-General, which have hitherto been discussed, there is nothing which suggests a need for any change in the nature of his office if it is considered sufficient that he should continue to act in the future as he has acted in the past, though it will be apparent that his duties are very different from those which tradition and our laws assign to his office. He never appears in Court and is rarely personally concerned in any way in the conduct of legal proceedings, whether civil or criminal, or with advice to Government Departments upon questions of local law. The situation is not merely that which must arise in any department of considerable size, in which much that is done in the name of the Head is necessarily done without his knowledge. The Attorney-General is much more widely dissociated in practice from the functions which belong to him by law than he should be while he retains responsibility for those functions. Having regard to the nature of the responsibilities cast upon the Attorney-General by our Codes of Procedure and other laws, it cannot be said that the practice which necessity has forced on us accords with the full inten- tion of those laws, and decisions of considerable importance to the Government and to members of the public have often to be taken by officers of his Department without that guidance from the Attorney-General which our laws presupposed when they gave him authority to make those decisions. It is to the credit of his officers that there has not been more frequent complaint, but complaints are made and are increasing in number, and I cannot view the present state of affairs with any satisfaction.