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Incidents of the Crown-Servant Relationship - 427

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Incidents of the Crown-Servant Relationship - 427 Incidents of the Crown- Servant Relationship IVOR L. M. RICHARDSON Christchurch, NZ. Introduction The relation between the Crown and its servants is an employment relation. As we shall see, the public interest in the proper function- ing of the executive government requires certain terms to be implied in the relationship for the benefit of the Crown. Nevertheless, the Crown servant does have some rights with respect to typical inci- dents of an employment relation. It is important for him to know the circumstances in which he may be dismissed from the govern- ment service and the procedures, if any, which must be followed by the Crown in exercising the powers of dismissal. Other aspects of the Crown-servant relationship may be of even greater importance to the civil servant in practice. For instance, what are his legal rights to his salary or to his pension if the government refuses to pay? Can he secure redress if he is transferred against his wishes to another department or ifhe is suspended from the service? Is the government obliged to grant him annual leave? It is the purpose ofthis paper to consider therights ofthe Crown servantwith regardto these matters. Even at the present time there are few statutes which govern the employment of Crown servants_in the United Kingdom. The struc- ture of the civil service in the United Kingdom rests upon regula- tions issued under the prerogative powers of the Crown. On the other hand, in the Commonwealth countries such as Australia, Canada, New Zealand and South Africa conditions of service under the Crown are regulated by statute and the rights and duties of the Crown and its servants are mainly questions of statutory construct- ion. In this study I shall concentrate on the position of Crown serv- ants in the United Kingdom, though I shall frequently refer to Com- *Ivor L. M. Richardson, LL.B. (New Zealand), LL.M., S.J.D. (Michigan) ; Solicitor of the Supreme Court of New Zealand. 19551 Incidents-of the'Crown-Servant Relationship 425 monwealth decisions to help illustrate matters of general principle. The nature and effect ofpublic policy on the Crown-servant relation will be considered first, and then each incident of the relation-dis- Missal, suspension, transfer, leave, arrears of salary, and pension rights-willbedealtwith separately. Before approaching the analysis the distinction should be noted between military and civil servants of the Crown, for, as we shall see, the failure of the courts to . ap- preciate the significance of that distinction has caused much con- fusion in this area. Distinction between Military and Civil Servants pf the Crown . , When we use the term "Crown servant"; we normally think of a' person employed in the administration of an executive function of government under the control of the Crown. This excludes from the definition the holders of political and judicial offices. Crown servants are either military; or non-military servants and, except where otherwise indicated, I shall use the term "civil servant" 1 as synonymous with non-military servant ofthe Crown. No useful purpose can be served by trying to analogise from the military servant's relationship with the Crown to that of the civil servant, and indeed it is dangerous to do so because the relation- ships between the Crown and its military and non-military servants, respectively, are basically dissimilar. In the first place, military serv- ants have a status under the Crown, 2 whereas non-military servants have a contractual relationship with the Crown.' In the second place, by its prerogative rights the Crown has absolute control of the arm- ed forces,4 whereas ,any implied powers of the Crown regarding its relations with its non-military servants are based on public policy 1 The usual definition of civil servants is: those servants of the Crown other than holders of political or judicial offices, who are employed in a civil capacity and whose remuneration is paid wholly and directly out of moneys provided by Parliament (Report of Royal Commission on the Civil Service 1929-1931 (Tomlin Commission) p. 4). No distinction is made between non-industrial and industrial civil servants, or between those employed in the social service and those employed in other departments (letter to the writer from an official of Her Majesty's Treasury dated 18th June 1954). 2 See, for example, Leaman v: The King, [1920] 3 K.B. 663 ; McArthur v. The King, [1943] 3 D.L.R. 225, at pp. 265 and-279 ; Cooke v. The King, [1929] Ex. C.R. 20; Commonwealth v. Quince (1943), 68 C.L.R. 227, at pp. 234-5. a See Reilly v. The King, [1934] A.C. 176 ; Robertson v. Minister of Pensions, [1949] 1 K.B. 227 ; Coker v. The Queen (1898), .16 N.Z.L.R. 193 ; Lucy v. The Commonwealth (1923), 33 C.L.R. 229; Dunn v: The Queen, [1896] 1 Q.B. 116, at p. 119 ; ould v. Stuart, [1896] A.C. 575, at p. 577. 4 See Clode, Military Forces' of the Crown (1869), Vol. 2, pp. 36 ff., Grant v. Secretary of State for India (1877), 2 C.P.D. -445 ; and the refer- . ences cited in footnote 2 supra. 426 THE CANADIAN BAR REVIEW [VOL . XXXIII and not on the prerogatives ofthe Crown.' And, flowing from these basic distinctions are numerous consequences such as that, in the absence of statutory provisions, military servants cannot resign their commissions except by permission of the Crown,' whereas civil servants may resign at any time-indeed, it was held that a for- mer military officer had no redress although he had been detained in the army beyond his period of service against his will;' that mili- tary servants of the Crown owe obedience to a separate corpus juris, whereas there is no such duty on the part of civil servants ;' that in all the armed forces elaborate provisions are made for fami- ly allowances and for deductions from pay for that purpose, where- as there are no such provisions affecting civil servants ; and, not only are civil servants free to join trade unions but in the Whitley Councils in the United Kingdom representatives of the government and of the civil servants endeavour to work out from time to time comditions of service which will satisfy both the Crown and its civil employees, whereas there are no similar provisions affecting the military branch of the Crown's service. For these reasons it is necessary to exercise the utmost care when attempting to draw comparisons and make analogies between any aspects ofthe relations between the Crown and its military and non military servants, respectively. Although this paper is restricted to a consideration of the position of civil servants of the Crown, it will from time to time be necessary to refer to rules governing condi- tions of service of military servants because of the tendency of some 5 See p. 427, footnote 14 infra. 5 Hearson v. Churchill and others, [1892] 2 Q.B. 144 ; Parker v. Lord Clive (1769), 4 Burr. 2419. The distinctive position of members of the armed forces, however, is not so clear in time of war when, as happened in the Second World War, civilians are seconded to industries and are not entitled to leave an employment without permission of a department of the government. Again, there may well be a difference in the relationship between persons voluntarily serving in the armed forces in peacetime and the Crown, on the one hand, and that between the Crown and persons conscripted into the armed forces during a "total" war or under draft laws in peacetime, on the other. Perhaps the answer is that, in time of "total" war, the normal relations between the Crown and its citizens are suspend- ed or, rather, raised to the higher plane of compulsory fulfilment of the duty of allegiance, and compulsory service in the military forces in time of peace may likewise be explained in terms of fulfilment of that duty. Or perhaps we may say that, by a legal fiction, the subject is deemed to have enlisted voluntarily, or deemed to have agreed to work in any position when requested by the government in such circumstances ; that is to say, that as a result of the ties between the Crown and the subject, the subject, in the eyes of the law, impliedly and irrevocably (so long as he remains subject to the jurisdiction of the Crown), agrees to place himself at the disposal of the government in time of emergency. 7 Kynaston v. Attorney-General (1933), 49 T.L.R. 300. 8 McArthur v. The King, supra footnote 2, at p. 265. 1955] Incidents of the Crown-Servant Relationship - 427 courts to apply to civil servants, by analogy, rules which are proper- ly applicable only to military servants ofthe Crown. Nature and Effect ofPublic Policy It is not necessary for our purposes to consider the numerous cases relating to the power ofthe Crown to enter into contracts ofservice. Although there is considerable confusion as to whether, in the Ab- sence of statutory authority; the Crown can engage servants on terms other than dismissal at pleasure,' it can hardly be doubted that the relationship between civil servants of the Crown and the Crown is one of contract." In short, the Crown has capacity to con- tract with its non-military servants." Such engagements are certainly contracts, but they are contracts of a special kind and do not have all the incidents of similar con- . tracts between subject and subject. The reason why contracts bet ween the Crown and its civil servants are not treated in the same way as other contracts is because of the public interest in the proper functioning of the government service.
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