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service of the state, and who were not otherwise pro-
vided for by Parliament. The Act was necessary
because several classes of public servants were omitted
from the operation of the Act of 1834 in order to save
them from becoming liable to the abatements, but these
deductions having been abolished, it was deemed ex-
pedient to bring all civil departments under the pro-
visions of the Superannuation Act. 1 But if a super-
annuated person afterwards is appointed to office in
any part of the empire, his allowance is to be reduced
by the amount of salary received for such service. 3 The
total annual charge for civil pensions, annuities, and
superannuation allowances in Great Britain, as esti-
mated in 1869, exceeds l,600,000/. k This includes
annuities to the royal family and civil list pensions,
but not half pay and pensions for military services.

The system of superannuation by deduction from
the salaries having been tried and failed, it was decided
in 1870, in order ' to promote economy and efficiency,'
to diminish the number of established clerks as vacan-
cies occur, and introduce * men and boy writers on the
ordinary footing of commercial clerks M i.e., per diem
allowances and without superannuation. But this
system did not work well, and was afterwards con-
siderably modified. 111

In 1869, by the Act 32 & 33 Viet. 32, the Treasury
were empowered in their discretion n to commute pen-
sions to retired officers in the army and navy and clerks
in the war and admiralty departments by payment of



1 Hans. D. v. 153, p. 354 ; 22 minutes and circulars issued under

Viet. c. 26. 36 Viet. c. 23, and 39 & them, concerning pensions, and super"

40 Viet. c. 53. allow'. See 'Jol. office list, 1870, p.

35 Viet. c. 12. 216.

k Com. Pap. 1868-9, v. 35, p. 1115. ' Hans. D. v. 203, p. 1247; v.

Civil Service Superannuations alone, 208, p. 1472; v. 206, p. 1384.

including compensation allowances m See 1st, Rep. Oir. Serv. Inq.

exceeds 1,100,000/. Com. Pap. 1873, Com". Com. Pap. 1875, v. 23.

v. 7, pp. 581, 841. For Imp. Acts, " Hans. D. v. 211, p. 283.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 653

a capital sum of money, according to the estimated Superan-
duration of life of the pension holder. nuation -

On April 18, 1871, a motion was made (by a private
member) to resolve ' That it is expedient to extend
the provisions of the Pensions Commutation Act, 1869,
to all the departments of the civil service. In reply,
the chancellor of the exchequer stated that ministers
proposed to amend the said Act by taking away the
privilege of commutation as far as regards pensions on
retirement after sixty years of age, and upon a medical
certificate, and by limiting the privilege to those who
received compensatory pensions on account of the abo-
lition or reorganisation of their office. With this
restriction they proposed to extend the Act to the whole
civil service. Satisfied with this concession the mem-
ber withdrew his motion. [The Bill was accordingly
introduced and passed. p It was extended to telegraph
clerks by Act 35 & 36 Viet. c. 83, and amended by
Act 39 & 40 Viet. c. 73, and again amended in 1882
so as to admit of the commutation of a portion of a
pension.] But the Treasury would object to commute
a pension for anyone of whom there was a definite
prospect of his being again employed in the public
service.* 1

By the Superannuation Act of 1875, a special rate
of pension is allowed to persons who have been in the
civil service of the state in an ' unhealthy place.'

That all persons employed by the crown in the
civil service of the United Kingdom are entitled to
a superannuation allowance after a certain length of
service is a principle which, ratified by Act of Parlia-
ment, is now ' universally admitted,' r provided only that
he has reached the age when retirement upon a pension
is allowable, or that an earlier retirement is justified

Hans. D. v. 211, p. 1253-1259. ' Hans. D. v. 177, p. 1907 ; 57
P 34 & 35 Viet. c. 36. Geo. III. c. 65 ; extended by 4 &

1 Hans. D. v. 208, p. 1847. 5 Will. IV. c. 24.



654 THE ROYAL PREROGATIVE

by a medical certificate of incapacity for further ser-
vice. 8 But if it should afterwards appear that a pension
had been granted upon insufficient grounds, or at too
high a rate, the lords of the Treasury would revise
their decision and issue a new minute thereon.* All
Pensions pensions and retiring allowances to public servants,
granted, although payable under statutable authority, are awarded
by the lords of the Treasury, pursuant to regulations
they are empowered to make from time to time for
that purpose.

The maximum pension to a retiring civil servant
contemplated by the Superannuation Act is an amount
equal to two-thirds of his salary. But by the 9th clause
of the Act, pensions up to the full amount of the salary
may be granted ' in cases where the services were of
a peculiar and unusual degree of merit." 1 But this
power has been most sparingly exercised/

Formerly pensions were granted at the discretion
of the sovereign. But as great irregularities prevailed
in the granting of pensions by the crown, it became
necessary for Parliament to interpose its authority to
regulate and restrict the exercise of this prerogative.
Prior to the reign of Queen Anne, the crown had
assumed the right of charging its hereditary revenues
with pensions and annuities ; and it had been held that
the king had power in law to bind his successors.
But, on the accession of Queen Anne, an Act was
passed (1 Anne c. 7), forbidding the alienation of any
portion of the hereditary revenues for any term beyond
the life of the reigning monarch. On the accession of



Hans. D. 223, p. 1214. If the 1874, App. 2.

government should refuse to allow to * Case of SirW. Brown. Com. Pap.

a public officer his just claims under 1871, v. 37, p. 627.

the Superannuation Act, he could u Hans. D. v. 217, pp, 1531, 1501.

apply to the court of Queen's Bench v Case of Sir R. Hill. Com. Pap.

for a mandamus to compel the Trea- 1864, v. 30, p. 610 ; v. 32, pp. 565,

sury to pay him whatever he was 569. Ib. 1873, v. 7, pp. 556, 571.

entitled to receive, Hans. D. v. 180, Ib. 1875, v. 42, p. 675. Ib. 1877.

p. 503 ; New Zealand, Leg. Coun. Jls. v. 49, p. 587, &c.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 655

George HE. the land and other revenues of the crown,
except the revenues of the duchies of Cornwall and
Lancaster, were surrendered to Parliament, in exchange
for a fixed civil list.

The ' Civil List ' originated after the Revolution. It was then Civil list,
applied to defray the charge both of the royal household and of the t I
civil offices of government, hence the term ' civil list.' It is now j
exclusively limited to the expenses of the sovereign and of the royal
household."

In the colonies, the term ' civil list ' is applied to an enactment
which withholds certain portions of the regular expenditure of the
colony from being annually voted by the legislature. Under the
Civil List Act, it is the duty of the Treasury, when required by the
sovereign, to render assistance in the administration of the civil list,
but the extent of such interference is expressly limited, and it can
only be exercised for the benefit of the Queen. 1

The pensions which had previously been paid out of
these revenues were henceforth paid out of the civil
list. There was no limit to the amount of pensions so
long as the civil list could meet the demand ; and no
principle on which the grant of them was restrained,
save the discretion of the crown and its advisers/

The abuses of the pension list, and the enormous Abuses of
facilities it afforded for corrupt purposes, frequently sioVust,
engaged the attention of Parliament during the reign of
George III., and several Acts were passed at different
periods to regulate the grant of pensions. The consti-
tutional right of Parliament to investigate this matter,
and to control the crown in respect to all payments of
the civil list, was fully asserted and secured by Burke's
Act in 1782, z this Act forbade the granting of secret
pensions, upon the principle that Parliament had a
right to be informed of every instance of the exercise



w May, Const. Hist. v. 1, c. iv. * 22 Geo. III. c. 82. And see

1 Mr. Gladstone, Hans. I), v. 208, debate on Sir 0. W. Dilke's motion in

p. 157. regard to Civil List in Hans. D. v.

* May, Const. Hist. v. 1, pp.214, 210, pp. 251-317. Fitzmaurice, Life

215. of Lord Shelburne, v. 3, pp. 4, 80.



656 THE ROYAL PREROGATIVE

of this prerogative in order to ensure and enforce the
responsibility of the ministers of the crown. a It further
acknowledged the principle that pensions ought to be
granted for two causes only ; namely, as a royal bounty
to persons in distress, or as a reward for desert.
R e . The interference of Parliament to restrain abuses in

strained the grant of pensions continued during the succeeding
ment. reigns of George IV. and William IV. ; b and finally,
upon the accession of her present Majesty an Act was
passed which limited the right of the crown to grant
new pensions on the civil list to the sum of 1,200/. in
each year ; in addition to the pensions previously in
force. A like amount is granted to her Majesty, for
each and every successive year of her reign, cumula-
tively, for the bestowal of new pensions : such pensions,
civil list pursuant to a resolution of the House of Commons of
pensions. February 18j 133^ to be awarded only to ' such per-
sons as have just claims on the royal beneficence, or
who, by their personal services to the crown, by the
performance of duties to the public, or by their useful
discoveries in science and attainments in literature and
the arts, have merited the gracious consideration of
their sovereign and the gratitude of their country.' c
It is further required, that a list of the pensions granted
shall be annually laid before Parliament, so as to enable
the House of Commons to give its advice in regard to
their bestowal, should it desire to do so. d The prime
minister, and not the chancellor of the exchequer, is
the responsible minister upon whose advice these pen-
sions are conferred. 6

In 1861 complaint was made in the House of Commons that a



Burke's Works, v. 3, pp. 304-307. v. 35, p. 1 1 00.
And see Hans. D. v. 183, p. 423. d Com. Pap. 1861, v. 34, p. 237.

" May, Const. Hist. v. 1, pp. 217, e Mir. of'Parl. 1840, pp. 1327,1347.

218 ; see Hans. D. v. 176, p. 358. In proof of difficulty of obtaining

c 1 & 2 Viet. c. 2. Rep. of Com* one of these pensions, see Veitch's

on civil list pensions, Com. Pap. Life of Sir Win. Hamilton, pp. 284.

1837-8, v. 23, pp. 55-59. Ib. 1868-9, 294 : Quar. Rev. v. 130, p. 407.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 667

literary pension had been conferred upon an undeserving person
(Mr. Close, ' the Westmorland poet '). After due consideration of
the case, Lord Palmerston (the premier) announced that the pension
would be withdrawn. 1 '

It is now recognised as a constitutional rule, that AH pen-
all pensions should be granted by Parliament, or out of
funds set apart by Parliament for the purpose ; and
that the grant of pensions should invariably come sance of
under the cognisance of the House of Commons. 8 Even
in the case of pensions and retiring allowances awarded,
according to established practice, under the provisions
of the Superannuation Acts, the money to defray the
same must be annually voted by the House of Commons,
although the faith of Parliament might be virtually
considered as pledged to their continuance ; h and it is
only in extreme cases of grave misconduct, that a pub-
lic officer is deprived of his ordinary right to a pension. 1

By a Treasury minute dated December 22, 1873,
the Treasury is empowered to make a compassionate
allowance to widows and children in the event of the
death of a civil servant, either directly or indirectly,
from injuries received in the discharge of his duty: such
annual allowance not to exceed ten-sixtieths of the hus-
band's emoluments at the time of his death ; and not
to be less than 12. per annum.' Otherwise neither widows
the Superannuation nor the Pensions Acts confer upon orph
the Treasury any authority to grant an allowance to ofcivil
the widows and families of deceased public officers in
the civil service, howsoever strong the claim may be in
any particular instance. 1 * The only fund available for

1 Hans. D. v. 162, p. 1375 ; v. 164, of all pensioners are appended thereto,

pp. 1402-1411. Also case of R. and a list of the new pensions given.

Young. Ib. v. 186, pp. 428, 454 ; v. j Hans. D. v. 235, p. 197.

187, p. 256. i Ib. v. 218, p. 723 ; v. 226,

s Com. Pap. 1868-9, v. 35, pp. p. 782. In regard to widows of

1105-1109. labourers on public works who die

h Att.-Gen. Hans. D. v. 179, p. from injuries received in execution of

1320. In the annual estimates the their duty, see Ib. v. 217, p. 312.

sum required under Superan. Acts is k Appropriation Accts. Com. Pap.

included in one vote, but names, &c., 1875, v. 50.

VOL. I. U U



ans
vil

ssrvjiiits *



658 THE ROYAL PREROGATIVE

such a purpose is the limited amount above mentioned,
which is payable out of the civil list. This has been
occasionally resorted to, in cases of peculiar hardship
and desert. 1 And in some few instances the Treasury
have taken upon themselves to grant compassionate
allowances to widows of old servants, to save them
from poverty.

In rare and exceptional cases it has been customary
to vote a yearly ' compassionate allowance ' to widows
or children of messengers and others in the lower grade
of the civil service.

of army The widows and orphans of officers in the army and

officers^ nav 7 are entitled to pensions under certain regulations ;
but a similar bounty is not extended to the families of
deceased adjutants and quartermasters of militia regi-
ments, because these officers ' are not liable to the
dangers of foreign service common to officers in the
line.' n

By Act 56 Geo. HI. c. 73, an annuity and bene-
volent fund was established on behalf of the widows
and orphans of deceased officers and servants employed
in the customs department ; but this is purely a volun-
tary association, and is not assisted by the government,
a small poundage on salaries of persons belonging to
the society, which was originally authorised to be levied,
having been abolished by Act 34 & 35 Viet. c. 103,
sec. 20, which at the same time extended the operation
of the fund to customs officers in Scotland and Ireland.

Dr. Farr's valuable report on the Police Superannuation Funds P
gives an account of the condition and prospects of the different super-
annuation funds in England and Wales.

In the Cape Colony, by the ' Public Service Widows' Pension



1 Hans. D. v. 179, p. 788. Ib. v. n Ld. Hartington, sec. of state for

217, p. 1471 : Quar. Rev. v. 130, p. War, Hans. D. v. 183, p. 683.

414. Phillips' Insurance case, L. T.

m 1st Rep. Com e Pub. Accts, ET. Hep. N. S. v. 48, p. 81.

p. 16. Cora. Pap. 1876, v 8. Com. Pap. 1877, v. 15, p. 101.



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 669

Act,' 1874, a pension fund has been established for the benefit of
widows of civil servants in that colony.

We have now completed our review of the royal Summary
prerogative in relation to office-holders. We have seen
that the constitution has vested in the sovereign the
right of appointing, controlling, remunerating, and dis-
missing all the public servants of the crown, with an
exception in the case of certain functionaries whose
tenure of office has been made that of ' good behaviour,'
and who can only be dismissed from their employments
upon an address of the two Houses of Parliament. By
this means, the dignity and independence of the crown
in the choice of its officers and the efficiency of the
public service are secured. At the same time, adequate
protection is afforded against abuse in the distribution
of patronage and the control and dismissal of public
employes by the responsibility of ministers to Parliament
for the faithful exercise of this prerogative. Ministers
are directly accountable for maintaining the public
service in a proper state of efficiency, for selecting
qualified persons to fill all subordinate offices under the
crown, for awarding to such persons adequate remuner-
ation, and for granting them protection against op-
pression or dismissal upon insufficient or unwarrantable
grounds.

The authority that appoints to office is necessarily
competent to dismiss any insufficient or untrustworthy
servants. It is also the proper judge of their qualifica-
tions and of the remuneration they should receive. In
all such matters Parliament ought not to interfere except
in cases of manifest abuse or corruption, when it may be
called upon to exercise its inquisitorial power . q Upon
such occasions, however, the Houses of Parliament are Ri^t O f
constitutionally empowered to institute investigations to Parlia -

-i i ,1 ... , , . ment to

declare their opinion as to the manner in which this investi-

gate

q Hans. D. v 212, p. 1148. And see precedents, post, pp. 668, &c.

IT tr 2



660



THE ROYAL PREROGATIVE



rogative.



and to ad- prerogative lias been exercised in any particular instance,

v:se the IT 11 -.1 i i n

crown, in anci , " need be, either to appeal to the crown to redress
Sre-* the grievance, or to proceed to remedy it themselves by
an act of legislation.

It is also quite in accordance with constitutional
usage for either House to address the crown or to record
their opinion by resolution upon the existing state of
the various public departments generally, and to advise
the adoption of such reforms as may be calculated to
increase the efficiency of administration/ But when
fundamental changes are sought to be effected, whereby
the crown would be deprived of any of its prerogative
rights, or which transcend the scope of the lawful
authority of an order in council, the proper course would
be to bring in a Bill, embodying the substance of the
proposed regulations, in order that the same may receive
the concurrence of the whole legislature. 8 This was
the plan pursued by Mr. Burke, in 1780, in carrying
out his proposed economical reforms in the various
departments of state.*

Another indirect but powerful influence possessed by
Parliament in the control of the public service arises
from the necessity for obtaining the sanction of the legis-
lature to the supplies required for carrying on the go-
vernment and defraying the salaries of all the public
employes* ' Thus without touching the prerogative
itself its exercise is moderated. The effect of this check
upon the exercise of the royal prerogative is, that the
responsible ministers of the crown usually take care not
to advise the sovereign to do any act requiring to be



Control
exercised
by Par-
liament.



* See Debates in Parl. on Motions And see ante, concerning Minutes
for Administrative Reform. Hans, of Council on the Revised Code of
I), v. 138, pp. 2040-2133, 2154-2225, Education.

2332. Proposed resolutions in regard * 22 Geo. III. c. 82. See other
to constitution of the Office of Works, cases cited in Tomline's Law Die-
submitted to the H. of C. in 1860, tionary, verbo Office, I.
1863, and 1866. u But see ante, p. 646.

Hans. D. v. 139, pp. 695, 713.



IN REGARD TO OFFICES A1ST) PUBLIC OFFICERS. 061

supported by supplies, unless they believe that it will
meet with the approbation of Parliament, especially that
of the lower House, which is invested by the constitu-
tion with the principal control over the public purse.

Moreover, by the usage of Parliament, it has always
been considered allowable for either House to address addresses
the crown for funds to defray the salaries and other ex- %?
penses of their own establishments, pursuant to regula- expenses
tions they may themselves adopt in this behalf; and
each House is at liberty to determine the amount of re-
muneration to be allowed to their respective officers and
servants, subject to the approval of the House of Com-
mons in committee of supply/ The salaries of the
principal officers are fixed by statute, and are paid out
of the consolidated fund. Proposals for the increase of
other salaries, and generally in regard to contingent ex-
penses, must be approved by the commissioners for
regulating the offices of the House of Commons, or on
their behalf by the Speaker. But all such proposed
expenditure for either House must be included in the
estimates, and annually voted in committee of supply. w
It is customary for the government, in their own discre-
tion, to give effect to recommendations from committees
of the House of Commons, in favour of appropriations Recom-
for particular parliamentary services, by inserting items ^ons of
in the supply estimates, to the required amount, with- co . m-

. . L L J - 1 mittees.

out waiting for any formal application from the House
itself.*

The salaries and retiring allowances of the House of Salaries,
Lords establishment are fixed by the House itself/ but House* of
annually voted in committee of supply. The estimate Lords -
for the House of Lords is now prepared by a committee



'Corn. Jour., June 29, 1836; Com. Pap 1862, v. 35.

Lords Jour. April 23, 1850. Hans. See Lords Jour. Aug. 27, 1835 ;

D. v. 218, p. 762. Aug. 28, 1846 ; April 23 and July

See post, p. 662. 30, 1850; Aug. 12. 1859: June 5.

' Estimates for Civ. Serv. 1862-3. 1862.



*



662 THE ROYAL PREROGATIVE

Salaries, of the House and sent to the Treasury, by whom it is
generally accepted without dispute. 3 The salaries and
contingencies of the Lords are now ^included in the
annual estimates and voted in supply. But the Lords
are permitted to retain the right of paying for retired
allowances of their officers out of the interest of the
invested fee fund (3878). The fee fund of the House
used ordinarily to suffice to pay all these demands ; but
when a deficiency occurred application was made by the
clerk of the Parliament to the Treasury, to insert in the
estimates a sufficient sum to cover the same. Formerly
the Treasury had no knowledge or control over the fee
fund of the House of Lords, or over the appropriation
thereof. But in 1865 they suggested to the clerk of
the Parliament the expediency of following the course
adopted by the House of Commons, in regard to their
fee fund, which is regularly paid over to the con-
solidated fund, and the charges upon the same in-
cluded in the annual estimates, and voted by Parlia-
ment.

With the consent of the House of Lords in the civil
service estimates for the year ending March 31, 1870,
the salaries and expenses of the House of Lords' offices
were, for the first time, included and brought under the
control of the House of Commons. But the Treasury
do not exercise any control over this expenditure. A
portion of the fee fund was retained by the Lords in
1869, the interest of which is used to defray the retired
allowances in the Lords' offices ; but over 30,000/. is
annually paid over to the Exchequer, as extra receipts.
If this sum should prove insufficient, the balance is paid
out of current fees. b Moreover, by the Act 29 & 30

Hans. D. v. 150. p. 1128 : v. 5^02, See Hans, D. v. 177, p. 1123. Ib. v.

p. 383. 197, p. 1474; v. 202, p. 383; 3rd

b Report Com 6 Pub. Ace. p. 47. Rep. Civ. Serv. Exp. Com. Pap. 1873,

Com. Pap. 18G5, v. 10. Lords Pap. v. 7. Ev. pp. 8, 34; Civ. Serv. Est.

1807-8, v. 30, p. 881 ; Civ. Serv. Est. 1877-8, p. 01, n. Com. Pap. 1877

1*78-9. Com. Pap. 1878, v. 63. v. 57,



IN REGARD TO OFFICES AND PUBLIC OFFICERS. 663

Viet. c. 39, 33, 34, the Treasury were empowered to
insist that the Lords' fee fund should be audited ; and
they have pledged themselves to the House of Commons
to use the powers so conferred upon them. c

Applications for pensions by officers of the House
of Lords are decided upon by the House itself ; either
directly, or upon a report from the select committee on
the office of the clerk of the Parliament and usher of
the Black Eod. d

The salaries, retiring allowances, and other disburse- salaries,
ments on behalf of the establishment of the House of House of
Commons have been heretofore regulated by reports of Commons -
committees of the House, and are now settled by the
commissioners appointed by statute 6 for regulating the
offices of the House of Commons. The commissioners
consist of the Speaker of the House of Commons, the
chancellor of the exchequer, the secretaries of state,



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