LORD ASHBOURNE rose to call attention to the dismissal of the President of the Queen's College, Galway, and the Chairman of the Irish Prisons Board; and to move for copy of Order in Council 19, 1890; all correspondence between the Irish Government and the President of the Queen's College, Galway, in reference to his retirement since the date of said Order; letter of the Treasury to Irish Government of December 16, 1891; letters patent granting charter for the Queen's College, at Galway, enrolled November 30, 1863 (omitting statutes, rules, and ordinances appended thereto); all correspondence between the Chief Secretary to the Lord Lieutenant of Ireland and the Hon. C. F. Bourke, Chairman of the Irish Prisons Board, since November 1, 1894. The noble and learned Lord said, The dismissal of the President of the Queen's College, Galway, and of Mr. Bourke, Chairman of the Irish Prisons Board, involve considerations of grave importance to all who are interested in high educational questions, and who take an interest in the position and tenure of the whole Civil Service of the country. The first case is that of Mr. Moffett, the President of the Queen's College, Galway, a scholar and man of letters, to whom years have brought no loss of power, whilst they have enlarged and enriched
his experience and given him a tact and authority, which make his classes honour him and the institution which he heads, revere him. I do not desire to bring politics into connection with the name of Mr. Moffett, for politics had nothing to do with his appointment. He was appointed President of the Queen's College, Galway, in 1877 (undertaking at the same time to hold and discharge the duties of his Professorship) when the late Duke of Marlborough was Viceroy, and his politics were not those of the Government of the day. He was appointed entirely upon his merits, with the approval of the whole college and of every person who had at heart the true interests of education in Ireland. Since the date mentioned he has fulfilled all his varied duties with singular distinction and success, and thus he won the admiration and love of his pupils, no matter what their religion, politics, or position, and he has brought to the discharge of his duties as President of the Queen's College, a tact and experience which have at once obviated all friction, and largely increased the efficiency of that Institution. Outside the college, too, his modesty, his worth, and his elevation of character have won for him universal esteem. Such a life might well have been permitted to continue its useful career uninterrupted and undisturbed, but on August 13, 1890, an Order in Council was passed at the instance of the Treasury, which, speaking broadly, sought to compel all who are deemed to come within its ambit to retire at the age of 65. The Treasury, as is their wont, tried to apply this in all directions. They endeavoured to apply it to the Law officials both in England and in Ireland, but it was pointed out to them that those officials held under a tenure which was regulated by statute and by Rules of Court that have the force of Statute, and they had to abandon that contention. Then they sought to apply it to the presidents and professors of the Queen's Colleges in Ireland, I think in 1891, and Mr. Moffett and his colleagues in that year pointed out that the Order did not apply to them; that it only applied to those of the Civil Service who were controlled by heads of departments; and that the Queen's Colleges, their government, procedure, and methods were regulated
under Act of Parliament and Charter and by Statutes of the Crown. The Irish law officers were consulted, and, after full consideration, they gave an opinion in accordance with the contention of the professors and presidents of the Queen's Colleges. The Treasury practically acquiesced in the construction that was placed upon the Order, and so matters remained until August, 1892, when the present Government came into power. In 1893, on May 31st, Mr. (now Sir) E. Hamilton, the Secretary to the Treasury, gave, before the Committee on Public Accounts, evidence of high importance showing what was then the admitted attitude of the present Government and of the Treasury on this question. Sir E. Hamilton said,—
The Irish Government have informed the Treasury that they were distinctly advised by the Law Officers in Ireland in the same direction"—
that is, as the contention of the Queen's Colleges; and, later on, this question was put to him:—
The Treasury, I presume, could stop the payment of the salary, subject to the risk of a legal decision? Mr. HAMILTON: Yes; they could exercise that power, but I think they would not exercise it except under legal advice.
That is a very important piece of evidence as showing the considered views of the Government and of the Treasury on the subject. Another year went by, and in April last, Mr. Pinkerton, the Nationalist Member for Galway, directed Sir John Hibbert's attention to the matter in a Question asked in the House of Commens. Sir John Hibbert, who must, in the ordinary course, have conferred with the Irish Government as to what answer he would give, replied as follows:—
The Government are as anxious as the hon. Member himself to prevent the presidents and professors of the Queen's Colleges from continuing to hold office after they have become, by age or infirmity, less competent for the performance of their important and responsible duties. The Law Officers of the Crown in Ireland have, however, advised that the presidents and the professors are not within the terms of the Order in Council of August 15th, 1890, and that the retirement of the present holders on the ground of age, or the discontinuance of payment from the Vote in Parliament to which they are entitled, cannot be enforced under the terms of the Order. As regards the future, the Irish Government has undertaken to make it a condition of appointment, in every case, that the holder of the appointment shall retire at the age of 65, with an extension of not more than five
years in any case in which the Treasury is satisfied that an earlier retirement would be detrimental to the interests of the Public Service.
Imagine, after that reasonable answer of a most reasonable man, the surprise of the Presidents of the Queen's Colleges to receive a letter, dated October 1st, 1894, from the Castle. That letter states that there had been communication on the subject of the applicability of the Order to the Queen's Colleges between the Treasury and the Irish Government, that the present Law Officers had advised that the Order did apply, and then it proceeded to adduce this extraordinary sentence:—
In these circumstances the continuance in office of a president or professor after the age of 65, save as above mentioned, cannot be held to be in accordance with Her Majesty's will and pleasure as expressed in said Order.
It then called upon Mr. Moffett and such of his colleagues as came within the Order to fill in the superannuation form. My Lords, I have said that that is a most extraordinary sentence, containing a most astounding reason. It begs the whole question in controversy. It does not declare the absolute will of the Sovereign of her own volition and for reasons satisfactory to herself that the offices should determine, but it rests for its sole reason upon an inference which depends absolutely for its validity on the very matters not yet determined—that is, whether the College was entitled to be governed, as prescribed by Act of Parliament and Charter, by Royal Statutes, or whether it was to be regulated and controlled by Orders in Council, the suggestion now put forward—a most novel and, may I say, daring claim. On October 29 the President replied again in most dignified, temperate, and becoming language. The letter he had received treated the matter as a brand new question, as if it had never been Stirred or agitated before, and quietly asked him to withdraw on a new opinion given by the Law Officers. The President, in his reply, referred to what had already taken place, referred to former Law Officers' opinion, to a new opinion which he enclosed, given by two gentlemen of the very highest position and repute at the Irish Bar, and contended, for the reasons familiar to the Irish Government, that the Order did not apply to him. Nothing happened for three months, and the President might well
have thought that on reconsideration the Treasury wore satisfied to leave matters as they were. But on January 24 he received from the Castle a letter enclosing him a Queen's letter curtly dismissing him from office, which, I venture to think, was a harsh and a curt proceeding for such a history to such a man. Mr. Moffett had been appointed by a Queen's letter to hold office during Her Majesty's pleasure, a tenure which, by practice and precedent, means that he is to hold office as long as health and efficiency last—not to be wantonly disturbed or to be harshly dismissed. There can be no question about that. A great many high officers in this country, not only connected with education, but in the highest branches of the Public Service, hold office during pleasure, but by practice, tradition, and convenience, and the highest dictates of public policy, it is regarded that that pleasure should Only be exercised on real cause, from some demerit, from some incapacity in the person against whom it is levelled, and should not be lightly used by mere revocation of the Sovereign's pleasure, and the Sovereign should not be lightly or hastily dragged into anything which any large section of Her Majesty's subjects can say is harsh, unreasonable, and unjust. The Queen's Colleges were founded in pursuance of the Colleges Act, which was passed in the eighth and ninth years of the Queen's reign. The Galway College was incorporated by Charter, and it has been ruled ever since and is now ruled by Royal Statutes passed in pursuance of that Act of Parliament and Charter. My Lords, these Statutes could be added to at the present moment—nay more, a Statute could be passed prescribing the conditions and terms of retirement, and if it was desired to prescribe an age limit in reference to the colleges, there is the whole machinery prescribed by Statute and Charter to govern these great educational institutions in accordance with the law and the expression of the Sovereign's will. There is a very important Constitutional question involved of grave practical importance to all the Queen's Colleges, and it is a matter of deep concern as regards the necessity for the best government of these most important seats of learning whether
they are to be governed by Royal Statutes framed to carry out and develop their interests, and with special reference to their welfare, or by Orders in Council framed on average general principles without any reference whatever to the special needs and requirements of great educational institutions. My Lords, that is a constitutional question of high importance, involving great legal considerations that are well entitled to be examined into before they are lightly to be so set aside. I venture myself to suggest it is obvious that these seats of learning should not be governed by these general Orders in Council. The whole structure of these Orders indicates that they never could be for a moment intended to meet the cases of colleges or universities or seats of learning. Every clause in them has reference to departmental discipline, to heads of departments, office hours, attendance, ranks of clerks, and the idea that the suggestion ever entered into the mind of whoever framed the Order that it was to be applied to great educational institutions, strikes me as a thing that no Judge, at all events, would ever decide, if submitted to his judicial determination. It is said that the Law Officers have now advised. I do not comment upon that, but I say this—that other Law Officers and other most eminent legal authorities have given clear and strong opinion on the other way. But Law Officers can neither make nor declare the Law; that is, the prerogative of the Legislature and of Her Majesty's Courts. The President, always in respectful language, demanded, and, so far as he could, insisted, that the validity of his contention should be submitted, like that of any other subject who was aggrieved, to the decision of the Queen's Courts. The Treasury shrank from that ordeal. The clear and the only meaning of Sir Edward Hamilton's evidence is that they should shrink from it without legal opinion. They never did venture to bring it to the test of legal decision, from which I assume they either got no legal opinion upon it or were afraid to act upon it. The Irish Government shrank from argument; they would not face the Courts, and by the Queen's letter, to which I have referred, they have dismissed a President in the fulness of his powers
and in the perfection of his usefulness. This is a grave and a serious case to be justified, having regard to the circumstances which I have ventured to submit to your Lordships. The Government are in this dilemma. If they consider that now, so late in the day, after the three years spent in these vicissitudes of opinion in which they had clearly taken up a strong view—both the late Government in 1891 and the present Government in 1893–4—if they now consider that the Order applies to the President of Queen's College, Galway, in all fairness and justice, why will they not let him test the legality and soundness of the advice on which they are acting? And if the President is not within the Order in Council, and they are only proceeding despotically by the use of Her Majesty's prerogative, then I say that they are taking a course absolutely unprecedented, for which they cannot allege any substantial reason, and which I venture to think, to use a common expression, is without either rhyme or reason. In the year 1891 the late Government, acting after full consideration and yielding to the advice of their Law Officers, acquiesced in the contention, and in 1893–4 the present Government did the same. It is curious how this question came to be stirred up last October. Where was the necessity? There was no urgency, no public need, no college necessity, no scandal, no failure whatever of power or of usefulness on the part of the President in his character of either President or Professor. What can be the conceivable argument for not letting matters alone? No one could then have blamed the Government. They were going on in the even course in which their predecessors had gone, in which their own previous action had committed them. By their own public statements there had been no failure of power, no want of capacity; there was perfect satisfaction in the seat of learning, controlled, guided, and influenced by Mr. Moffett. Why was it that last October they deemed it necessary to move? Were they compelled to stir in this question? What can be the argument? New Law Officers' opinion? But, my Lords, as I have said, there are other strong opinions the other way, and the public statements to which I have referred all go to show
that, no matter what the force and weight of the recent opinion may be, there must be grave and serious cause of doubt in this conflict of high important legal opinions. I could understand the Government saying that before they acted on the new opinion they had got they would allow the President to test the matter in a Court of Law. I could understand them saying—
we will meet this case by new Queen's Statutes, as we are entitled to do with reference to Queen's College, Galway,
But I cannot understand the reasonableness of stamping out all argument and advising the Sovereign to terminate this distinguished career by harsh and arbitrary dismissal. The contention, so far as I can gather it on the correspondence, is that, having regard to the contents of the Order in Council, and what it prescribes in reference to public officials and to age, Her Majesty has been advised to act on and have regard to the policy of the Order. But the statement is hardly plausible even on the face of it, because the true analogy for a seat of learning is not a Government Department and a head with a lot of Civil Service clerks—not the contents of an order of doubtful meaning, and whoso construction is gravely impeached. The true anology is the practice of all other Universities and Colleges. Let us turn to the Dublin University, a University with which I am so proud to be connected. Take the illustrious Provost of Trinity College, Dr. Salmon, a man of European fame. He is over 70 years of age. Would not the whole literary world laugh you to scorn if you attempted to suggest that you should remove him from his place? Turning to the great University of Oxford, I find that Dr. Sewell, the head of New College, and Dr. Price, the head of Pembroke College, are passed 70; the latter is also the able Professor of Natural Philosophy. We all know that Dean Liddell, who so lately retired from the distinguished position of Dean of Christ Church, is the same age as Mr. Gladstone. We know that Pusey was able to perform with all his power the duties of Professor of Hebrew at the age of 80. We know that Jowett was able to preside over the great intellect of Balliol to advanced years. We know that Froude, the
illustrious man so lately removed from us, was almost 70 when he was appointed, and that Sir Henry Acland, full of years and honours, has only just retired from the performance of his great duties at the age, I believe, of little short of 80. Cambridge presents the same position. I believe, without going into details, there are nine heads of houses who are over 65, while two of them may be fairly said to be over 70. I ask why was it that this Irish President of an Irish college, this distinguished scholar, is chased from his position by an arbitrary dismissal—which kills argument, which stifles objection, which cannot be answered, and which refuses to follow the analogy of all other seats of learning in this country. I impute no motives. I am willing to rest the case of this distinguished scholar upon eloquent fact, and I hope that even still the Government will recognise the contention made by the President, not on his own behalf, but on behalf of the colleges with which he is connected. The second case to which I have to ask your Lordships' attention involves the construction of the same Order in Council. It raises some different considerations, but considerations that affect the whole Civil Service of the country. Mr. Bourke was appointed in the year 1868 Inspector-General of the Irish Prisons. Ten years later he was appointed Chairman of the Irish Prisons Board. The tenure of his office, like that of many of the great officials in the Civil Service, is during pleasure. He has been about 27 years in office, and he is now 62 years of age. He is in full possession of all his faculties and powers; he is as capable an official now as he was on the day he was appointed; he has a thorough knowledge of his work; he has ample experience of every one of his duties, and he takes the deepest interest in their discharge. The many noble Lords who have filled the great position of Lord Lieutenant of Ireland, and in whose presence I speak, must know from their experience in administering the duties of that high office the zeal and the knowledge which Mr. Bourke always brought to the discharge of his difficult, responsible, and even unpopular duties. Mr. Bourke was greatly surprised in the
month of November last to receive the following letter from Mr. Morley:—
Chief Secretary's Office,
Nov. 5, 1894.
My dear Sir,—by the tenth section of the Order in Council of the 15th day of August, 1890, it is laid down that, it shall be competent for the head of any Department to call upon any officer in it to retire at the age of 60 on such pension as by the length of his service he is qualified to receive. I understand that you came with in the possible operation of this section two years ago, or, in other words, that you attained the age of 62 a couple of months ago. It is my duty to say—and I say it with reluctance because it may be personally disagreeable to you—that the time has come when it is desirable that you should retire from the General Prisons Board under the section to which I have referred. I have to make this request in what Government conceive to be the interest of the public service. I need not say that I shall be very glad to recommend the Treasury to award you the full pension to which you are entitled by length of service.
A very important paragraph with which to close the letter, becauses it indicates with unmistakable clearness the attitude which Mr. Morley felt bound to assume in reference to the capacity and the services of Mr. Bourke. The tenth section of the Order referred to in that letter, so far as it is necessary to trouble your Lordships with it, is as follows:—
It shall be competent for the head of any department to call upon any officer of such department to retire at the age of 60 on such pension as, by the length of his service, he is qualified to receive. Retirement shall be compulsory for every officer on attaining 65 years of age.
Mr. Bourke's reply was very clear and dignified, and no unworthy reply for a public servant in his prominent position to make to the Chief Secretary. He pointed out he was not within the Order; that either he or his Board, of which he was Chairman, was the head of the Department; and that if there were any reasons or precedent that could be urged against his contention he respectfully asked that they might be submitted to him that he might examine them, take counsel on them, and deal with them as he thought right. Mr. Bourke contended that in official correspondence he had always been treated by other Public Departments as the Head of his Department; that it was he who had to arrange for the passing of the Estimates; and that it was he who had to send up superannuation forms which alone legally justified the Treasury in awarding superannuations. Mr. Morley, a man of
ability, and, I suppose, carefully advised, felt that his position hardly stood the test of examination and criticism to which it had been, subjected, and, accordingly, he took absolutely new ground, and the taking of that new ground condemns and shows the fallacy of his previous contention. He still said Mr. Bourke was not the Head of his Department; but he passes that by, and goes on rapidly to say that he was further advised that he held office during the Lord Lieutenant's pleasure, and that the Lord Lieutenant might determine that pleasure at any time. My Lords, that letter contains a sentence—
§ LORD ASHBOURNE
The letter of November 28 1894—the new ground letter. That letter contains this interesting sentence:—'I referred to the Order in Council in the letter which I had the honour to address to you on November 5, not as being itself valid for the determination of the office, but as having guided the exercise of His Excellency's discretion. When His Excellency arrives at the conclusion that the Order would promote the interests of the Public Service by its application in a particular case, it becomes the duty of the Lord Lieutenant to resort to the power which is undoubtedly vested in him.What does that mean? Does it mean that when, the Order in Council has been appealed to unsuccessfully the Lord Lieutenant can be advised to amend his hand and to promptly dismiss the too-successful reasoner, reminding him that his strictly legal tenure is at the pleasure of the Lord Lieutenant? I did not say lightly that this was a question far transcending the importance of Mr. Bourke's own personal feelings. It is a question vitally affecting every Civil Servant who holds by the tenure of pleasure. Mr. Bourke would be false to the traditions of public life and to the higher classes of Civil Servants who hold under this tenure if he had acquiesced without great examination and care in this proceeding. I ask again, What is the meaning—the Constitutional meaning—by practice of precedent, of this tenure "during pleasure"? It does not mean that a public servant so holding can be despotically dismissed on the mere ipse dixit of the Minister who advises in the exercise of the pleasure. That would be Americanizing our institutions. If at each time a new Minister comes into office it was de 408 sired to put in a new and put out an old official, it is obvious that such a system would strike a grave and serious blow at the continuity of the Civil Service of the country. Every one knows that by tradition, by practice, and by every requirement of public life, the durability of a Civil Service appointment rests not on pleasure in the ordinary sense of the term, but on pleasure to be exercised judicially and constitutionally. In Tod's Parliamentary Government it is laid down that—The Crown possesses an absolute legal power to dismiss any of its servants on the advice of responsible Ministers; but it has, nevertheless, been recognised as a rule that persons holding non-political offices under the Crown should only be dismissed for incompetence or misconduct.That is a reasonable safeguard, and Mr. Bourke, in all his correspondence, has challenged whether any charge whatever could be made against his competence or his conduct, and that challenge has never been taken up. Mr. Bourke asked for an interview with the Lord Lieutenant—whom I should have been glad to see in his place—and in that interview Mr. Bourke conducted himself with a moderation and a restraint such as might be expected from any public officer in the presence of the representative of the Sovereign. When Mr. Bourke asked whether any charge was brought against his conduct, Lord Houghton absolutely refused to go into the subject, but said he would prefer the application of the tenth section rather than to have to advise the dismissal on the ground of the cessation of pleasure. Mr. Bourke, during the correspondence in letter after letter, tried to have his dismissal placed on any distinct ground whatever. If it were placed on the tenth section, which was Mr. Morley's first contention, he then desired to test the applicability of the section in a Court of Law. Nothing could be fairer; a public servant must and should have legal rights. If Mr. Bourke was dismissed on legal grounds, and if he were advised that the legal ground did not apply, surely he was entitled to demand that matter should be investigated, like every wrong to a subject, in a Court of Law. If the dismissal were put on the cessation of pleasure, Mr. Bourke could only submit, but if the two topics were, intertwined and mixed up together he could do absolutely nothing; he was just as 409 fettered and hampered as any slave who had his hands tied. In letter after letter, enclosing the highest legal opinion, he tried to have the grounds of objection against him separated, and he pointed out the difficulty which had occurred in Sir Thomas Brady's case, owing to the grounds not having been kept separate. The Master of the Rolls, a most able Judge, decided in that case that Mr. Brady did come within the Order in Council, and that ended the matter so far as he was concerned. Mr. Brady appealed, as was within his right, to the Court of Appeal, and one of the Judges agreed that he did come within the Order in Council; but the other two Judges absolutely refused to go into that topic, because, as they said, it appeared from the correspondence that the Lord Lieutenant had expressed his will that the tenure should cease, they could not consider, and would not consider anything else. I will now read a paragraph from the letter of Mr. Bourke, dated January 16, 1895:—If his Excellency will intimate to me, either directly or indirectly, that he removes or dismisses me from office, but that my removal is conditional on the applicability of the Order in Council in cases such as mine, then I shall have that construction of the Order decided upon in a Court of Law at once. If his Excellency does not do so, then it merely comes to this, that the Crown or his Excellency may call upon any Civil Servant to resign because the Crown or his Excellency is advised some Order in Council applies to offices such as that held by the particular servant, and no opportunity is to be given to have the soundness of the advice tested by the ordinary tribunals. I beg respectfully to say that such a power was never, as I am advised, asserted or exercised before, and that it is unjust and oppressive in my case.That letter is a fair find temperate statement of the difficulties in which Mr. Bourke was placed. It comes, then, really to this—that the Irish Government refused to stand on the Order under which it was said, in the first instance, Mr. Bourke should go; they would not allow Mr. Bourke to test the soundness of their position in a Court of Law, and they cover their arbitrary action in a power of dismissal that was only intended to apply to cases of either misconduct or incapacity. Mr. Morley must have felt that it was unreasonable and indefensible to deny a public servant the opportunity of testing the soundness of his legal position. Of course, Mr. 410 Morley is a master of language, and he used this curious sentence:—As to the legal rights to which you refer, these will, no doubt, at the proper time, should the occasion arise, receive due consideration from the Law Officers of the Government.Was there ever a more ridiculous suggestion made than is contained in that sentence? The issue was knit; the contention of each party was set out abundantly in the letters; this was the proper time for action, and it was idle and absurd to suggest that the Law Officers, in what they consider proper time, were to be permitted to get on two tall stools and sit in judgment on their own opinions. Mr. Bourke was the head of his department; under the ordinary application of the rule he should retire at the age of 65; but there is absolutely no precedent in the whole Civil Service of the country where this section has been applied to the head of a department like Mr. Bourke If there is such a precedent, the Government are bound to state it, and until they do I assert boldly that no such precedent exists. No Civil Servant who holds on this tenure of either Royal or Viceregal pleasure will be safe if this treatment of Mr. Bourke is sanctioned. Such prerogative action, such despotic action, is full of peril to the stability of the whole Civil Service, and it is contrary to the whole practice and tradition of our English public life. My Lords, in neither of the cases to which I have asked your attention have I imputed motives. I have endeavoured not to use any language or words exaggerated beyond the bare necessity of adequate description. The cases are, I venture to think, entitled to grave consideration. They are entitled to the anxious attention of all who are interested in higher education and of all who are interested also in the security and protection of the Civil Servants of the Empire.
§ EARL SPENCER
My Lords, I always feel at some disadvantage in following an able lawyer like the noble and learned Lord who has just sat down, when he produces many opinions of a legal kind. But I feel bound to rise at once to give the answer to the speech of the noble and learned Lord, and I shall not trouble your Lordships at any great length. The noble and learned Lord founds his speech on what he considers to be the peril to 411 the stability of the whole Civil Service by the application of certain rules in the two cases which he has quoted. I will venture to entirely deny that statement. I affirm, whatever you may think of the application of the rules to these cases—a matter which I shall deal with presently—that these rules are of the highest importance to the Public Service, and that they conduce enormously to the efficiency of the Public Service. Now, my Lords, these rules and the Order in Council referred to were made on the very able Report of the Commission which sat on the Civil Service, a Commission that was presided over by Sir Matthew Ridley, a very able Member of Parliament, who belongs to the Party of the noble Marquess opposite. That Commission made several recommendations for the benefit of the efficiency of the Public Service. They recommended, amongst other things, that there should be no exception to the rule of retirement, except in cases of certain scheduled officers; an officer so scheduled, on being asked by the Government to do so, might extend his service for a further period, which was never to exceed five years. They recommended also that at the age of 60 a man might be required to retire by the Head of his Department on such a pension as, by length of service, he was entitled to receive. They also recommended that the rules should be made uniform and applicable to the whole Service, and should be embodied in an Order in Council having statutory effect. I will now call attention to an opinion which, I think, will be respected on the other side. On February 9, 1891, a question was asked in another place in regard to the application of the Order in Council, and the then Chancellor of the Exchequer, Mr. Goschen, answered it. The first, part referred to the question whether the Government should proceed by Order in Council and not by Act of Parliament. With regard to the policy of the Order in Council, the right hon. Gentleman gave the following expression of his opinions:—Civil Servants appointed before the date of the Order in Council were not exempted from the possible retirement at the age of 60 (a recommendation of the Royal Commission), because it was only a formal statement of the existing practice. It is now competent for the Head of a Department to call upon any officer in the Department to retire at the age of 60. Heads of Departments have for years exercised 412 their powers, and in some Departments it is a formally promulgated rule of service.That is the general policy. I entirely agree with the noble and learned Lord that this rule should not be harshly applied. It should not be applied in what, I think, he called a tyrannical manner. But it must be employed for the good of the Public Service, and having due regard to fair consideration of the persons to whom it is applied. I will now come to the particular cases to which the noble and learned Lord refers. He began with the case of the President of Queen's College, Galway. I entirely join with him in all that he has said as to the good services of Dr. Moffett. He is a distinguished man. He has served with diligence and fidelity, and great efficiency and eminence, in the position in which he is placed. But what is the history of the case? It does not date from last year or the year before. It began, as the noble and learned Lord has said, in the year 1890, when attention was called to the fact that Dr. Moffett was over the age of 65 mentioned in the Order in Council. It was the Treasury which first drew attention to this, and it was the duty of the Treasury to carry out this part of the Order in Council. No doubt the Irish Government communicated with the President of the Galway College, as the noble Lord has said, and the President of the Galway College—in conjunction, I believe, with the Presidents of the Cork and Belfast Colleges—protested against the application of the Order to himself and those gentlemen. The matter was then referred to the Law Officers, and their opinion was that the Order did not apply to them. I am quite ready to admit that. What followed after that? There is an important Committee of the House of Commons whose business it is to look into the application of the Public Funds—the Public Accounts Committee. In the years 1893 and 1894 they repeatedly called the attention of the Treasury to the fact that Dr. Moffett, whom they considered one of the permanent Civil Servants, was not included in the Order, and that he was above the age when he ought to have retired by the Order in Council. The answer which was given by my Friend Sir John Hibbert in the House of Commons was, no doubt, such as that which the noble and 413 learned Lord represented it to be. He then stated that the Law Officers had given their opinion upon the matter, and that they did not consider that the President of the Galway College came under the Order in Council. After that the Public Accounts Committee again called the attention of the Government to the facts connected with the case, and then the Treasury—who always held the view that the President of the Galway College came under the Order—referred the case to the Law Officers again, and obtained their opinion. That opinion was concurred in by the Law Officers in Ireland, and after that the letter to which the noble and learned Lord referred was sent to the President of the Galway College, asking him to make a Return such as they were bound to ask for under the Order in Council. I believe that a considerable time elapsed before the letter saying that the Queen's pleasure had been taken, and that the President of the Galway College must retire. Not only before, but even after that letter was sent, it is, I believe, the opinion of the Legal Advisers of the Government that the Petition of Right, to which reference has been made, might have been presented by the President of the College. It did not rest with Her Majesty's Government to say that the case should go to a Law Court. They were satisfied with the opinion which the Law Officers had given. They were fortified in that opinion by the opinion of the Public Accounts Committee, and it was not, therefore, for them to lay the matter before a superior Court. It was for the President himself and his friends to do that. It is quite open to him to make that application now.
§ EARL SPENCER
So I am instructed. The noble and learned Lord drew an eloquent comparison between the position which this gentleman occupies and that occupied by the Presidents and the heads of Colleges at the University. He named specially a gentleman whom I always feel it a great pleasure to have known—Dr. Salmon, the Head of Trinity College, Dublin. I venture to say that the case of the Presidents and Professors of the Queen's Colleges stands on an entirely different footing from the 414 case of those gentlemen. Are they, or are they not, Civil Servants of the Crown? If they are not, they are not entitled to any superannuation orders. But if they are, then the question as to whether they come under the Order in Council or whether they do not is settled. I understand that Professors and others have already received pensions as Civil Servants; and there is no question that the President of the Galway College is entitled to a pension, and would claim it, when he retires. It is upon that ground chiefly that the Government, with their advisers, believe that the President of the Galway College stands on quite a different footing to those other distinguished men at the other Universities to whom the noble and learned Lord referred. If he is not under the Order in Council, he is not entitled to superannuation; but as he does claim superannuation, he is like all other permanent Civil Servants of the Crown. With regard to the Order in Council, what I understand is this—that it expresses Her Majesty's pleasure as to what should be done in certain circumstances. It does not of itself carry any power of dismissal. It directs the policy which should be carried out by whomsoever is the Head of the Department; and the Head of the Department acts under other powers of dismissal or retirement, if he chooses to put the Order in Council in force. I do not think I need say anything further with regard to the case of Dr. Moffett. Now as to the case of Mr. Bourke. I wish to say at first that it is painful for me to have to speak in any way upon the subject, because Mr. Bourke not only served under me for the eight years during which I held the high post of Lord Lieutenant, but he was also a personal friend of mine. In referring to the case, I hope I shall not say anything which will hurt Mr. Bourke's feelings, as I am sure that that would be the last thing I should desire to do. The noble and learned Lord says that Mr. Bourke does not come under the Order in Council.
§ EARL SPENCER
I understand that even Mr. Bourke, in his letter, admits that he comes under part of Section 10—namely, that which will require him to retire at the age of 65.
§ EARL SPENCER
Then how can he divide the section and say that one part of it applies to him and the other does not?
§ EARL SPENCER
He contends, I know, that the first part refers to the Heads of Departments, and that the second part does not. I quite accept that. I maintain that the Lord Lieutenant is the Head of the Department, in the sense of that Order in Council, most clearly and distinctly. I believe that that can be found in the judgments which have been given in parallel cases. There is the Act of 1877, which constituted the Prisons Board. Under that Act I maintain that it is most clearly laid down—no one can candidly read that Act and not admit it—that the Lord Lieutenant must be the Head of the Office. I will further quote the Lord Chief Baron, or Lord Justice Fitzgibbon—I forget which—who says that whoever has the power of dismissal must also be the Head of the Office. Every one admits that the Lord Lieutenant has the power of dismissal. What does the Act of 1877 lay down? It not only says that the Lord Lieutenant shall appoint to the Prisons Board, but the fourth Section says—Whenever, from time to time, any vacancy upon the General Prisons Board shall occur by reason of the death, removal, or resignation of any member thereof, or otherwise, the Lord Lieutenant may, by the like warrant, appoint some other fit person to fill such vacancy.And further—Any act or thing required or authorized to be done by the General Prisons Board may be done by any one or more members of the Board, as the Lord Lieutenant may direct; and the said Board shall, in the exercise of their powers and jurisdiction as under this Act, conform to any directions which may, from time to time, be given them by the Lord Lieutenant.I maintain that those words absolutely point to the Lord Lieutenant as the person who appoints, who may dismiss, and who has control over the Prisons Board. From that I argue, therefore, that the Lord Lieutenant is the head to which the first part of the Section refers—namely, that part which shows that he may, after 60 years of age, remove an officer in the Civil Service. I believe that, in the opinions which have been given by the distinguished Judges in Ireland, your 416 Lordships will find that the Order in Council refers to the whole of the Heads, and all the Civil Servants who receive a salary above a certain class. Therefore, according to the legal opinions which have been given in Ireland, it is quite clear that Heads of Departments like Mr. Bourke can be removed under the Order in Council by the Lord Lieutenant, who, I maintain, is the head of the offices. Now, the noble and learned Lord referred to the correspondence of my right hon. Friend the Chief Secretary. While speaking of correspondence, I will at once say that I think Mr. Charles Bourke in his letters used the most excellent language, and that there is not a word in that correspondence to which any exception can be taken, always differing, of course, from him in the view which he took. The noble Lord says that Mr. Morley in his first letter unsuccessfully appealed to the Order in Council, and subsequently fell back on the power of the Lord Lieutenant to dismiss at pleasure. I maintain that it is perfectly and absolutely clear that the Order in Council of itself did not give any power of dismissal at all. With reference to a similar case, that of Sir Thomas Brady, tried on appeal before the Chief Baron, that Judge stated that—It seems to be admitted on all hands that the Order in Council of August 15, 1890, did not and could not determine the office.Nothing can be more clear than that expression of opinion. Lord Justice Fitzgibbon concurred in the view that an officer cannot be deprived of his office by the Treasury Minute. My right hon. Friend, no doubt, in the first instance, wrote this letter without referring to the other powers of the Lord Lieutenant, but he did that in order to make the fall, which he knew would be a heavy one, if possible, lighter; and he wished to refer to the indication of Her Majesty's pleasure as directed in the Order in Council rather than to the arbitrary powers which the Lord Lieutenant holds. But, as I have said, the Order in Council of itself is only the indication of Her Majesty's pleasure; the carrying out of that Order must depend on the other powers and upon whoever thinks it good to carry out the Order in Council. I maintain in that case that the Lord Lieutenant is the person at the head of the offices. He in that case pointed out, and desired to carry 417 out, the spirit of the Order in Council, and he did this by the powers which belonged to him. It only remains for me to ask with regard to the discretion which has been used, "Has that discretion been properly used or not? Has it been used harshly?" I maintain this—that there may be in the public service many a man who has worked hard and zealously, and who on that account deserves the thanks of the public; at the same time he may have certain qualities which do not render him a desirable agent when improvements and changes are going to be made in that Department. All I have to say with regard to Mr. Bourke is that, in the opinion of the Irish Government, he was not a person who could well and easily and smoothly carry out certain changes which the Irish Government think necessary in the Prison Service; and therefore, on that account, and on that account alone, the Lord Lieutenant thought it desirable and necessary to carry out the clause of the Order in Council. I do not think it necessary to add anything more to what I have said. I shall conclude by saving that Her Majesty's Government will have no objection to give the Papers for which the noble Lord has moved.
§ THE MARQUESS OF LONDONDERRY
thought that no answer had been given by the noble Earl to the charge which had been made by his noble and learned Friend against the action of the Government in dismissing summarily two capable officials—action which was almost of an unjustifiable character. Those two officials owed a debt of gratitude to his noble Friend for the clear and explicit manner in which he had placed before the country the cruel conduct of the Irish Executive with regard to them. He would go further and say that the public servants of the country owed his noble Friend a debt of gratitude in calling attention to the treatment of the two officials, because it was treatment that might be extended to any public servant who at the present moment relied on what was called the pleasure of the Queen as a security for his appointment, and, on the conviction that so long as he discharged his duties to the satisfaction of Her Majesty, he might look upon the tenure of his appointment as a permanency. It was true enough to say 418 that the theory of the public service in this country was based on Her Majesty's pleasure, but the practice was that so long as public servants discharged their duties satisfactorily they knew that they might look upon their position as permanent and free from attack. He could not imagine a more lamentable condition of affairs in connection with public servants than that which existed in America. He trusted that the same methods of changing the Civil Service with the various Administrations would never be adopted in this country. The damage which was inflicted upon the interests of America by an adhesion to this system had been well recognised by the President of the Board of Trade in his able work on the American Constitution, wherein the right hon. Gentleman stated that the system "has lowered the general tone of the public morals." But he asked their Lordships to remember that the public service included other officials besides Civil Servants. There were officers in the Army and Navy, all of whom owed their offices to the pleasure of the Queen. The whole pension and superannuation code showed the permanency of the public service, notwithstanding the technical term of "pleasure." This code also showed that the permanency of the service was recognised by the law. The expenditure of public money for pensions had been made the ground for this, but it was impossible not to recognise that officers had really no claim to the large amount of money annually provided for their retiring pensions if it was conceded that they were really liable to dismissal by the arbitrary act of the Government. His noble Friend, therefore, in defending those two officials was, in reality, defending all public servants, whether Civil, military, or naval. Dealing with the case of Mr. Bourke, he maintained that the Chairman of the Prisons Board was the head of his Department. As such he had been always recognised, and as such he had been invariably addressed by the Treasury. It was illogical to plead the Order in Council as a justification for the dismissal by the Lord Lieutenant. Either the Order in Council held good or it did not. They all knew that it had been decided that it did not hold good—in the first place, because Mr. Bourke was Head of his Department; in the second place, because 419 Mr. Bourke was only 62 years of age. The statements in Mr. Morley's letter of January 15 were absolutely illogical. The Government ought not to attempt to ride on two horses. They ought to give Mr. Bourke an opportunity of testing the matter in a Court of Law, or they should say they refused to give him that opportunity, because they knew they would be defeated in a Court of Law. They pursued an arbitrary course in dismissing Mr. Bourke without rhyme or reason. The noble Earl referred to the case of Sir Thomas Brady, but Mr. Bourke asked that they should follow the example of Sir Thomas Brady. That case was not a parallel one. Sir T. Brady was 71, and he was accorded the opportunity of testing his claim in a Court of Law. The Executive should give Mr. Bourke the same opportunity as was given to Sir T. Brady by the late Lord Lieutenant. Mr. Bourke put the matter in a nutshell, when he very truly said—If I am to be arbitrarily dismissed the construction of the Order is a matter of indifference, but if not it is a question of vital importance.He concurred in that statement, and he thought that the right of appeal should be given to Mr. Bourke as it was given to Sir Thomas Brady. Mr. Bourke's dismissal could be defended only on one of three Grounds—either he was guilty of misconduct, or he was incapable of discharging his duties, or it was proposed to consolidate various offices. As to the latter he need not say anything, and as to incapacity or misconduct no charge whatever need be made. No charge could be made, or they would not have recommended him for full pension. He thought the action of the Irish Executive was arbitrary, unjust, and absolutely indefensible. Mr. Bourke had effected great improvements in the Irish prisons, and now their sanitary condition compared favourably with prisons in any part of the country, Along with this the expenditure had been reduced to a considerable extent, and therefore Mr. Bourke had a right to be treated with common decency by the Executive. He passed to the case of Dr. Moffett. They had yet to learn from the noble Earl why Dr. Moffett had been dismissed. No reason whatever had been given; and Dr. Moffett was as capable now as he ever was of discharging his duties. Why did not the Irish Executive allow Dr. 420 Moffett to raise the question in a Court of Law? The noble Earl hinted that it was possible for Dr. Moffett to re-open the matter in a Court of Law. How was he told to do that after the Queen's letter? Perhaps the Lord Chancellor would explain that. It seemed to him a very curious thing to find the Law Officers of the present day called in and their opinions quoted directly in opposition to the Law Officers of the last Government. It was like turning the Law Officers into a kind of political agent. As to the question of age, Dr. Moffett was not so advanced in life as the Heads of other Colleges and Universities, including Trinity College. Such a man as Dr. Moffett was a credit to the College, and in giving no valid reason for his dismissal, the Executive had treated Dr. Moffett, if possible, more unjustly than they had treated Mr. Bourke. He could not but think there was something more than met the eye in his dismissal. He had already referred to the opinion held of Dr. Moffett by the Council of Queen's College, Galway. The resolution declaring that they viewed with regret the action of the Government, and considered that considerable damage was done to the interests of the College in removing Dr. Moffett, especially at this time, was carried with only one dissentient—Professor Pye. It had been suggested in the Independent that Mr. Pye could not be considered to be an absolutely disinterested person in the matter, but as to that he would say nothing. He might mention that there had been some curious appointments in Ireland recently to posts rendered vacant by the deaths of three valued friends of his own who had been Lords Lieutenant. A learned Professor of Trinity College had said recently in Dublin that when Mr. Morley should leave Office it would be possible to say of him that no man had ever done so much to elevate the Irish people, for he had shown that no Irishman was too unprincipled or too incompetent to hold Her Majesty's Commission of the Peace. Appointments such as these made in succession to Mr. Bourke and Dr. Moffett injured honourable and worthy men. The matter could not rest where it was, and he did not think that this summary dismissal of able public servants could be recognised when the noble Marquess (Lord Salisbury) should return to the Ministerial Bench. 421 There might be retaliation. He hoped earnestly that when the Unionist Party should return to power the two appointments of successors to Mr. Bourke and Dr. Moffett would be regarded as never having been made. It might be said that a policy of retaliation in these matters would be antagonistic to English views and was only adopted in America. That was true; but if this policy were hereafter adopted in this country it would be due to the action of the present Government, upon whom the responsibility would rest.
§ THE LORD CHANCELLOR (Lord HERSCHELL)
I cannot help expressing regret at the concluding observations of the noble Marquess. They were beside the case with which we are dealing, which is a case utterly independent of Party or political considerations, and they converted a perfectly fair and proper subject for unimpassioned discussion into a subject of Party attack. I do not deny that this question is one of considerable importance, but it is not such a question as my noble and learned Friend the noble Marquess represents it to be. It is the case of two members of the Civil Service who have been retired on a pension in accordance, as is alleged by the Government, with the law of the land—in other words, in accordance with an Order in Council not made by the present Government, but an Order for which noble Lords on my left are responsible. It is in accordance with the provisions of that Order in Council that the Government have done what they have. My noble and learned Friend alluded to the retirement of Dr. Moffett, and spoke of it as dismissal. But if a Civil Servant of the Crown is dismissed for misconduct, I apprehend that it is not usual that he should retire with a pension. It is not, to use words in their ordinary meaning, to say that an officer who is retired in accordance with this Order in Council has been dismissed from his office, and it would be unfair to the officer to use any such mode of expression. Many Civil Servants have been retired under this Order of the Privy Council, and I should not like to say of any of them that they have been dismissed. We were advised, rightly or wrongly, that the cases to which attention has been drawn to-day come within the Order in Council, and the Government acted upon that advice. My noble and learned Friend has spoken 422 as though this were a new exercise of power by the authorities of the day, but Sir Thomas Brady was retired by the late Government just as Dr. Moffett has been retired now. If Dr. Moffett was "dismissed," Sir Thomas Brady was dismissed also, and Sir Thomas Brady protested just as earnestly as Dr. Moffett that his case did not come within the Order in Council. My noble and learned Friend says that Dr. Moffett had the opinions of high legal authorities in support of his contention that his case ought to be excluded from the Order. Well, so had Sir Thomas Brady, and yet the Government of the day disregarded the legal opinions upon which Sir Thomas Brady relied, and acted upon the advice of their own Law Officers.
§ THE LORD CHANCELLOR
They gave him no more opportunity than Dr. Moffett has at the present moment. Sir Thomas Brady brought his Petition of Right, and it was heard by the Master of the Rolls in the Court of Appeal, and, if he had the right to Petition, just the same right exists at present. There is no distinction between that case and the present one. My noble and learned Friend (Lord Ashbourne) shakes his head. Well, I have read the decision of the Court of Appeal, and I assert that there is no distinction between the two cases. It is true that there might be a question as to the extent to which the matter could be considered by a Court of Law. I understand that there was a difference of view upon the point among the learned Judges of the Court of Appeal. One of the Judges took the view that it was open to them to dismiss the Order in Council and to consider whether it applied to the particular case, but Chief Baron Pallas and Lord Justice Barry took a different view. But all I say now is this, that Dr. Moffett had precisely the same right to go to the Court of Appeal as Sir Thomas Brady had Therefore, I do not think it is quite fair to speak as though this were a new and unprecedented exercise of power by the present Government. Sir Thomas Brady raised exactly the same point as has been raised in Mr. Bourke's case, for he said—I am Head of my Department and you are, therefore, not entitled to dismiss me; I do not come with in the Order.423 I quite agree that this policy of retirement at a certain age is not a policy not open to question, and that there is a great deal to be said for it and against it. I am not personally very much enamoured of it; but the question was discussed by a Committee of great weight, and they came to the conclusion that it was a wise and expedient policy, on the ground that, although you may under a system of retirement at the age of 65 or 70 lose some men who still have years of work in them, you get rid, on the other hand, of inefficient men occupying high posts, whose continuance in those posts would be detrimental to the Public Service. Whether this policy be a right or a wrong policy, so long as it exists ought it not to be impartially and inflexibly carried out? If you make exceptions to the application of this policy you do gross injustice to men in whose case it has been rigidly enforced. There is no justification for making such exceptions. The rule must either be vigorously and universally applied, or you must agree upon definite exceptions which shall not depend upon the caprice of the Government of the day. Many a job would be likely to be done if the carrying out of the Order in Council were to depend upon the favour of the authorities. The only safeguard against abuse is its rigorous application. The question then arises whether a given case comes within the Order in Council. I do not think that you will doubt that the question in the cases to which attention has been drawn were advised by their English and Irish Law Advisers.
§ THE LORD CHANCELLOR
The Government of the day must take the best advice they can get on any given subject. The Government were bound to take the advice of the English Law Officers as well as of the Irish Law Officers, for it would be bad to have different systems administered in Ireland and England respectively under one and the same Order in Council. The Treasury accordingly took the opinion of the English Law Officers, and it was then found desirable to ascertain whether the present Irish Law Officers concurred with the English Law Officers. If they had dissented, and taken the same view as their predecessors, then no doubt the Government would have had 424 to make up their minds as best they could. But the opinion of the present Irish Law Officers did not coincide with that previously given, but was in accordance with the opinion of the English Law Officers. What was the Government to do under those circumstances? I think all of your Lordships who look at this matter candidly will admit that the Government cannot be blamed if, being thus advised both by the English and Irish Law Officers that the case was within the Order in Council, they acted upon those opinions. And that is the whole of Dr. Moffett's case. It may well be that that gentleman could have continued some years longer doing good service, but that is true of many men who have been retired under this Order, and not alone of Dr. Moffett. The only policy to be pursued in these cases is to deal with all alike and to act strictly upon what the Order in Council has provided. This case, of course, differs entirely from that of many English University officials to whom reference has been made. These are not Civil Servants of the Crown at all; the Irish Professors are, and it is as such they become entitled to their pension. If the English University officer was dismissed he would simply cease to hold office, and would not receive one penny of public money, but the Irish Professors receive the public money on their retirement in precisely the same way as any other Civil Servant of the Crown. Before I pass from that I should like to read a comment of the Chief Baron in Sir Thomas Brady's case in the Court of Appeal. He says, first of all, that the Order in Council does not in itself work any dismissal, or removal, or retirement, but that that must be the specific act of the Crown; and then he proceeds:—In my opinion the effect of the Order was to impose a duty on the Lord Lieutenant to institute inquiries into the various offices that were held at his pleasure, to ascertain the ages of persons who held those offices, and to take such advice as he best could as to the purview of this Order in Council, and as to the persons who come within it, and, having ascertained the facts, then to do the thing his Sovereign commanded him to do—that is, to return the offices of those who, in his opinion, were within it.In this case I say that that duty, and nothing but that duty, has been discharged. Now with reference to the case of Mr. Bourke, the power of calling upon a Civil Servant of the Crown to 425 retire at the age of 60 was no new power introduced by the Order in Council. It existed before, and, my noble and learned Friend to the contrary notwithstanding, it was frequently acted upon both before and after the Ridley Commission. Your Lordships will understand at once why I should have the greatest objections to giving the names of cases, but I can assure your Lordships that there are many cases during many years past in England in which those holding high offices in the Civil Service have at the age of 60 been requested to retire precisely as Mr. Bourke was. Let me read from an answer made by Mr. Goschen in the House of Commons on February 19, 1891, in which he said that Civil Servants—Were not exempt from the possible retirement at the ago of 60, because that is only the formal statement of an existing practice. It is now open for the Head of a Department to call upon any officer in that department to retire at the age of 60, and Heads of Departments have for years exercised that power.The ordinary course, then, has been followed in the present case. My noble and learned Friend says that the Chief Secretary first rested himself on a clause in the Order in Council, then having abandoned that position he rested himself on the prerogative of dismissal. There is a fallacy in all that. If a person is retired under the Order in Council, his office ceases by the pleasure of the Crown. That is the only way in which he ceases to hold office. The Order in Council does not retire him; it merely says the Head of the Department may call upon him to retire. Therefore, it was really no new ground my right hon. Friend relied on; it was the necessary sequel to that which had gone previously—namely, that he had been called upon to retire. It is said that Mr. Bourke was himself the Head of the Department within the meaning of the Order in Council. On that question the advice received has been that he was not, and upon that question I should have no hesitation in expressing my own opinion to the same effect. I understand the Head of a Department to be the authority who has power to control, to order, to dismiss. I apprehend all permanent Civil Servants of the Crown have a Head of their Department, who is responsible to Parliament. I think any other would be a most 426 dangerous doctrine. To suppose that a Civil Servant can say: "I am the Head of my Department; nobody has authority over me; nobody can determine whether I should do this or that, or how long I shall remain in the public service," seems to me an impossible position. You will always find, in the case of every Civil Servant, that the Head of his Department is some one who is responsible to Parliament. And especially having regard to the sections of the Act of Parliament which my noble Friend has read out, how can it be doubted that this official was under the Lord Lieutenant? Can he be said to be the Head of his Department when there is another head, whose orders and directions he is bound to follow? I can entertain no doubt that this gentleman was not the Head of his Department within the meaning of this Order, but that the Lord Lieutenant was. I cannot help saying one word in conclusion, because this question does seem to me to raise serious considerations. It was never a pleasant thing when the Head of a Department is required in terms of an Order in Council to call upon a public servant to retire, but if it was not to be left to the judgment of the Minister or Head of the Department, whoever he might be, if it was to be open to the friends of the officer in Parliament to come forward and say—"You are not justified in doing this action unless you can point out misconduct on his part," why, you would get rid of the effect of the Order in Council altogether, and you would deprive yourself of all the advantage intended to be given by the provision requiring retirement after 60. The very object is, that the Minister, if he act honestly and fairly, according to the best of his judgment in the public interest, ought not to be compelled to come to Parliament and justify by proof of inefficiency or misconduct what he has done. If you insist upon that, you will make the Order in Council a dead letter, and you will seriously intefere with the interests of the public service. I cannot but think that when your Lordships consider the matter you will come to the conclusion that whether the cases be or be not within the Order in Council, the Government are not guilty of any of the base motives which the noble Marquess is pleased to attribute to them, but have simply endeavoured to 427 carry out what they believe to be rules and orders which have been laid down for the guidance of the public service.
§ EARL COWPER
considered this was a matter involving great principles, and particularly the principle of whether the heads of the Queen's Colleges in Ireland were really to be considered in the light of ordinary Civil Servants to whom the rule of retirement at the age of 65 was to apply. As had been well pointed out, some of our most distinguished professors were already far beyond that age, and to make a hard-and-fast rule that at 65 a professor must retire would be to lose the services of most distinguished men when, as regarded their work, they might be said still to be in their prime. As far as the Order went, it was compulsory at 65, but at 60 a retirement might be required for reasons shown, whilst the age might also be extended to 70; therefore, between the ages of 60 and 70 it was entirely at the option of the Lord Lieutenant to get rid of any professor or continue him in office as he chose. In his opinion this left a great opening for jobbery, if any one was inclined to practise it, and it would be far better if the professors in Ireland, as in England, were allowed to remain in each case until the day of death or the good sense of the holder of the office told him it was time to make way for a younger man. Although jobbery might be practically extinct in England, it was not yet quite extinct on the other side of the Channel, and it was all the more necessary, therefore, if possible, to guard against any suspicion whatever. Sometimes the Lord Lieutenant had a difficult duty to perform even in appointing to offices. When he was in Ireland he appointed as Provost of Trinity Dr. Jellett. Dr. Jellett was not a supporter of the then Government, and great pressure was put upon him (Earl Cowper) to appoint other people who were favourable to the Government, but who, in his opinion, were not equally good men for the particular office. He considered such appointments should be practically permanent, so that it should not be possible to remove the holders. Dr. Moffett was not a supporter of the Government, and if his successor should be, what imputations it would expose the Government to. The Debate had conclusively shown that Dr. Moffett was still fitted in every way to discharge his 428 duties; he was not retired for any fault; but simply that, the Government might carry out a general principle which, in this particular way, had never been put in practice before. Everybody knew that Dr. Moffett was doing good work and was perfectly competent, and many people would believe that the action of the Government was attributable to political reasons, particularly if it should turn out that his successor were a Home Ruler. If the present law did unfortunately allow the removal of heads of colleges, it ought, to be allowed to remain practically a dead letter.
§ LORD HALSBURY
desired to put plainly before their Lordships what he understood to be the complaint. The complaint was this—Either accuse me of incompetency or misconduct, or, if you say it is the operation of a rule which has been established in the Civil Service, whereas I deny it, let me have some form in which that matter can be tried, not by the arbitrary will of the Government of the day, but of some judicial tribunal. The noble Lord on the Woolsack had expressed a strong opinion as to one part of this case—namely, as to whether Mr. Bourke was Head of the Department or not; but he had designedly avoided treating the question of the competency of the holder of an office, held during the pleasure of the Crown, of trying the question whether or not he was properly dismissed by a Petition of Right. The noble Earl opposite said that course was open to the holder, but the noble Lord on the Woolsack did not echo that proposition, but rather intimated his determination not to express an opinion.
§ THE LORD CHANCELLOR
I said the question had been dealt with by the Irish Court of Appeal. I did not express any definite opinion upon it, but I said if it could be tried in Sir Thomas Brady's case it could be in this, and if it be not on a Petition of Right I know of no method by which it could be tried. This case may yet come up on a Petition of Right, and, unless it is absolutely necessary, I desire to avoid expressing any opinion on a case which may be argued before us.
§ LORD HALSBURY
would have thought that that disinclination to express an opinion in such circumstances would have applied equally well to the point as to whether this gentleman was the Head of a Department, which might 429 also be argued before them, but there was no reticence on the part of the Lord Chancellor on that branch of the subject. He should be under the same reticence himself, but there were some questions which were absolutely unarguable, and to say that a person could bring a petition of right against the Queen in respect to an office held during pleasure was nothing less than ridiculous. There could be no such right. The very form of the appointment and the nature of the tenure rendered it absolutely impossible to allege as against Her Majesty that there was any right. In the litigation by Sir Thomas Brady that very point arose, and all that was now asked was, that, the Government should give them an opportunity of testing whether these regulations under the Orders in Council did or did not apply to such and such offices. If they went before a Court of Law, and proceeded upon a petition of right or anything which lay in the pleasures of the Crown as the determining factor, the Court of Law would at once say they had nothing to do with it. As he understood it, two of the Judges of the Court of Appeal in Ireland had said so, stating that they could not give any opinion because Her Majesty, having dismissed the holder of the office, they could not go behind Her Majesty's pleasure.
§ LORD HALSBURY
said, the noble Lord read a passage from the Chief Baron's judgment, which was fatal to the question being determined on a Petition of Rights. It was Her Majesty who dismissed and imposed the duty upon Her officers of carrying out Her determination. He observed a sort of alternative argument. First of all the policy did not apply, but the letter did, and then the letter did and the policy did not. Did any human being suggest that the Ridley Commission entertained the question of Professors, or Heads of Colleges, or persons in that position at all? The language of the Order in Council was conclusive against it. No such phrases would have been used in it if they had been certain that was a question they were entertaining, and if they did entertain it they took no evidence upon it. On the question of policy he could understand a clerk entering the Public Service when young, and 430 ultimately arriving at an age when he was entitled to a retiring pension at certain rates. But at what period of life were professors generally appointed? Whatsort of professors would there be if they were appointed at an age when they could, according to the Civil Service Regulations, obtain full pensions? As to Mr. Bourke—that gentleman denied that the Order applied to him. He said he was not subordinate to the Head of any Department, but he was himself the Head of his Department. That was his position, and he wanted that question to be tried in some form or other. If the decision went against him, he would be content. What Mr. Bourke asked the Government not to do was to call upon him to resign within the Rule, and, if he tried that question not by the question of the rule, but answer him by saying, "Oh, you only hold during pleasure," that was not fair. Mr. Morley's correspondence did not disclose what course he would take. It was fair if the right hon. Gentleman should say, "Well, I am going to dismiss you, in pursuance of my power as Chief Secretary, advising the Lord Lieutenant," in which case, there was a question of policy, which might come before Parliament; but if the right hon. Gentleman said "I am bound to do it, not because I have any objection to you, not because there is any reason why you should be dismissed from office, but because I am forced by this arbitrary rule, and you are within it and it is improper to make any distinctions," the question would be one upon which a court might give a judicial opinion. Up to the present, however, it was said, "No, I dismiss you; I do not tell you why: that is the determination of pleasure." The Lord Chancellor had given his opinion as to the question whether or not Mr. Bourke was the head of his Department. If he understood his noble Friend's argument there was no head of a Department in this country except Her Majesty. He supposed that the Lord Lieutenant was in the same position in Ireland as Her Majesty was here. He had a strong suspicion that "head of a Department" was not capable of exact definition, but in this country we spoke of the Treasury, the Home Office, and so on; and whoever was the head of each of those Departments it certainly never was supposed 431 to be Her Majesty. Judging from the Papers, Mr. Bourke had always been consulted as the head of the Prisons Board. It was hard now he should be told he was not the head of his Department, but that the Lord Lieutenant was. That seemed to be playing fast and loose with language, and not calculated to aid the public service. He could not say that the Lord Chancellor's opening observations encouraged one to say this was not a Party question, because it was a case with the noble and learned Lord of argumentum ad hominem—"we have done this and you have done the same." This was a matter which ought to be absolutely independent of Party. It was a question which affected the whole Civil Service of the country, and if the noble Marquess (the Marquess of Londonderry) would excuse him he absolutely and totally repudiated the policy of retaliation which the noble Marquess suggested. Nothing could be more destructive of efficiency than the supposition that whichever side got in they could turn out people and put others in. In order to avoid the necessity of that, and in order to avoid the pressure which would produce that it ought to be perfectly clear that this power of the Crown is exercised with due judicial impartiality and that people would not be put off with the sort of excuses Mr. Bourke had been put off with when he asked that they should try the question whether he was the head of his Department or not. He could tell Mr. Bourke without any difficulty that if he went into a Court of law with a Petition of Rights the Judges would tell him they had no jurisdiction. It was possible, however, for the Government and Mr. Bourke to agree to the statement of a special case, and by such means have the question whether Mr. Bourke was the head of his Department or not settled. And, of course, the same thing could be done in the case of Mr. Moffett. There could be no imputation on the Government if they yielded to what certainly appeared to be very reasonable request—namely, that Mr. Bourke and Dr. Moffett should have an opportunity of trying the question without being tripped up at the commencement of their litigation by the statement that they had no rights which the law recognised.
§ LORD MORRIS
said, he filled, at 432 the personal request of Lord Spencer, the office of visitor to Queen's College, Galway, and, therefore, he felt called upon to say a few words when the case of Dr. Moffett was being canvassed. Dr. Moffett, whose acquaintance he had had for at least 45 years, was recognised on all hands as a man of amiable and blameless character, as one who had earned for himself the respect of his colleagues and the love and admiration of the students. If their Lordships, and he particularly addressed himself to the Members of the Government, were not satisfied with the opinions which they had already received on that subject, he would read a statement made in a newspaper within the last few days by one who I was glad to see remembered his old college—namely, Mr. T. P. O'Connor. Writing in the Sun newspaper Mr. T. P. O'Connor said—Dr. Moffett, the President of Queen's College, Galway, whoso dismissal from his post is now the general topic of conversation, has been a prominent figure for nearly half a century in Irish academic life. Of the three colleges Galway is the poorest, but it has succeeded in turning out more than its share of men who have secured high places in the professions and public life at home and abroad. Dr. Moffett had to a singular degree the great art of kindling enthusiasm for learning in the most unlikely material, and all over this Empire there are hundreds of Galway students whose feelings towards him are like those Balliol men hold towards Dr. Jowott.Such was the man who had got two months' notice to quit. That was only a little more than the notice the Home Secretary should give to his kitchen-maid; it was not exactly the treatment to give to a man whose success in the administration of educational matters in Ireland had done immense service to the country. His humble judgment was quite unable to appreciate the grounds on which Dr. Moffett was dismissed. It was said that it was based on an Order in Council passed on the suggestion of a Commission presided over by his respected friend, Sir Matthew Ridley, who was himself a man that had attained to the highest honours at college. Could it be supposed for a moment that it ever entered into the head of Sir Matthew Ridley that a rule, which was suggested to regulate the attendance of clerks in offices under the Treasury, should apply to the head of a great col 433 lege? He quite agreed with his noble friend on the Woolsack that the rule should be applied rigorously; and if the rule was properly applicable to Dr. Moffett, he must bear it. But Dr. Moffett had the highest legal opinion that the rule did not apply to him. Dr. Moffett and he had been colleagues on the Senate of the Royal University for Ireland for twenty years, and when in 1891 Dr. Moffett's attention was first called to this rule, he naturally consulted his colleagues on the Senate, which included such men as the Lord Chief Baron and the ex-Lord Chancellor Ball, and they were all of opinion that the rule did not apply to the head of a college. The case was also submitted to the Law Officers, with the same result; and so the matter was allowed to drop. That decision had been accepted by his eminent Friend, Sir John Hibbert, the Secretary to the Treasury, a Gentleman with whom he had sat for several years in the House of Commons, who deserved every eulogium which had been passed upon him, but who was himself over seventy years of age. Sir John Hibbert said, in answer to a question put to him, that the thing could not be done. Then, if it could not be done in 1892, 1893, and 1894, what had enabled it to be done in the spring of 1895? It was said that the Law Officers present took a different view of the matter. But which of the Law Officers were right? Was Dr. Moffett to bow to the change in the opinion of the Law Officers on the occasion of every new appointment to the offices? Dr. Moffett had got no answer at all as to why he was to be dismissed. He called it a "dismissal," though one of the local newspapers described it as "a compulsory resignation," which was a nice way of putting it. He did not often intervene in Debates in the House, and especially in Debates on Party matters, but he hoped this was not a Party matter; but he was sometimes amazed and grieved—though that might seem a contradiction in terms—when he heard people's rights dealt with by the tu quoque argument. It was said, for instance, that the Conservative Government had done wrong in the case of Mr. Brady, the Fishery Commissioner. He did not know whether they had or not, for he had not read the papers on the matter; but supposing they had done 434 so, that was no reason why the present Government should do wrong to Dr. Moffett. He would, even at the eleventh hour, appeal to the Government to put the case of Dr. Moffett under investigation to see whether a rule which was intended to regulate the hours of Treasury clerks, really applied to the head of a College. Lord Spencer had said that a Petition of Right lay. He could not restrain himself from ejaculating "No" rather loudly when he heard that statement, he was so startled to think that anyone could have advised the noble Earl that a Petition of Right lay against the Crown at the application of an individual who held his office during pleasure, when the pleasure had disappeared. No one that was a lawyer could have suggested such a thing. It was said that Dr. Moffett was a Civil Servant, and that he was therefore subject to the rule. He had heard with amazement the definition which had been given of a Civil Servant, namely, that he was a person who got a salary from the public purse and was entitled to a pension. That was a most alarming doctrine. He had been for nearly a quarter of a century a Judge in Ireland, and had filled for some years the office of Lord Chief Justice. During that time he had drawn a salary and was entitled to a pension, but he should have been very much surprised if he had been told he was a Civil Servant. He wondered what his noble Friend, Lord Russell of Killowen, would say if he were told by some one in the Treasury that he was a Civil Servant, and that he should attend at the Courts at ten o'clock. He wondered what the late Lord Coleridge would say also, especially on the latter point. He hoped the question would not be treated as a Party question. He hoped the Government would do what everyone in Galway—and everyone in Ireland—desired they should do, for Dr. Moffett was universally respected for his services to Education. It was a matter really that was arousing a great deal of public attention. If he were a supporter of the Government he would 435 honestly advise them, in their own interest, to allow Dr. Moffett to remain, for there was growing up a feeling with regard to the case of the President of Galway College which the Government would find it difficult to meet. It could not be met by technicalities. He had a collection of extracts from the Nationalist journals of the province, every one of which—to their credit be it said—regarded with reprobation, the intended dismissal of Dr. Moffett. He asked the Government, therefore, to ponder over the matter a little longer. If the rule really applied to Dr. Moffett he must go; but if it not apply, why should he leave his position merely under the despotic use of the Queen's name? He agreed to all that Lord Ashbourne had said, except one thing—that there was no precedent for Dr. Moffett's case. There was a precedent, James II., who took the same course with the heads of Magdalene College a very short time before his fall. Absit omen! Those who were responsible for Dr. Moffett's dismissal should not be inclined to follow such a precedent.
said, that many in Ireland would be glad to hear what the Lord Chancellor had said—that there was the same administration of the law in Ireland as in England. Unfortunately, that was not the case. He should like to know whether Her Majesty's Government were going to treat the public servants in Ireland as the landlords were treated. It was not now a very good thing to be a landlord in Ireland. Would the same thing have to be said of the public servants in Ireland? He had always thought that it was a most desirable thing to have able and efficient men in the public service. That opinion was certainly held at the War Office and the Admiralty. But if an official were to be dismissed or removed, without any cause, at the mere pleasure of an individual, it was impossible to expect good and able men to enter the service. This action appeared to be part of a new scheme of economy on the part of the Government, who took advantage of the work of public officials and then, when they came near to the age entitling to a full pension, got rid of them. Or, was it that the Government, having failed to carry the Home Rule Bill, intended to act on the programme which a 436 Home Rule Government certainly would have carried out, and to remove all those who by the fearless performance of their duty had made themselves obnoxious to the Irish supporters of the Government? Mr. Morley said that Mr. Bourke had been removed for the good of the Service. He did not say what the good was; and there was no other interpretation to his words than that Mr. Bourke had proved unworthy or incapable of his post. Either Mr. Bourke was fit for his post, or he was not; and Mr. Morley had not said that he was unfit. If Mr. Bourke had not committed a fault then Mr. Morley had; and in the latter case it was Mr. Morley, and not Mr. Bourke, who ought have been removed.
§ THE EARL OF WEMYSS
wished to ask a question with regard to the dismissal of Mr. Bourke. In the correspondence on the subject there was nothing to show the grounds of Mr. Bourke's dismissal. The fact that his age was 62 was not sufficient, because it was at 65 that the Order came into operation. But from 60 to 65 a Civil Servant held office at the pleasure of the head of his Department. No one had suggested that Mr. Bourke was mentally or physically incompetent, or that he had done anything which in any way affected his position. Indeed Lord Londonderry had told the House that Mr. Bourke had actually improved the Irish prisons, and had introduded considerable reforms in prison administration. He had been anxious to hear why Mr. Bourke had been dismissed; and he had listened carefully to what Lord Spencer said. It came to this—that Mr. Bourke was dismissed, not because he was incompetent, nor because he had been guilty of any high misdemeanour but simply because he was not the man to carry out the reforms which were about to be introduced. He wished to ask this plain, straightforward question. Did Lord Spencer mean to say that there were certain reforms about to be proposed In the prisons of Ireland, which the head of the Prisons Board had declined to carry out? If that was not so—if no direct reforms had been proposed which Mr. Bourke declined to carry out—on what ground could the noble Lord stand up and tell the House, having regard to Mr. Bourke's record as a reformer, that he was dismissed because of the belief 437 of somebody, as yet unknown, that certain reforms, as yet unknown, would not be carried out by Mr. Bourke?
§ EARL SPENCER
I never stated that Mr. Bourke had refused to carry out reforms. I said that, in the opinion of the Irish Government, he was not the man to carry out certain changes, which the Government thought desirable.
I am not going to say why. It would not be in the interest of the Public Service to do so.
§ THE EARL OF WEMYSS
I am satisfied. It appears to me to be an injury to the Public Service and an injustice to the individual.
§ THE EARL OF ROSEBERY moved: "That your Lordships do now adjourn."
§ Motion agreed to.
§ House adjourned at Twenty minutes, before Eight o'clock, till Tomorrow, Four o'clock.