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 functioning 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 incidents of an employment relation. It is important for him to know the circumstances in which he may be dismissed from the government 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 regulations 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 construction. In this study I shall concentrate on the position of Crown servants 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.

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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 . appreciate the significance of that distinction has caused much confusion 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 relationships between the Crown and its military and non-military servants, respectively, are basically dissimilar. In the first place, military servants 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 armed 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.

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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 former military officer had no redress although he had been detained in the army beyond his period of service against his will;' that military 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, whereas 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 conditions 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 suspended 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.

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courts to apply to civil servants, by analogy, rules which are properly 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 contract 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. This idea of the public interest requires that the needs of efficient administration be taken into account. Normally it is in the best interests of the Crown that it should not bind itselfas to its future action. For this reason Crown servants are generally dismissible at pleasure." But this is not because it is "unconstitutional" for the Crown to employ a servant who is dismissible only for cause." Nor is the basis for the Crown's implied power of dismissal at pleasure in the prerogative, as was pointed out in an important Privy Council case." Fundamentally, s See generally J. D. B. Mitchell, The Contracts of Public Authorities (1954) pp. 32 ff. 10 See the references cited in footnote 3 supra. "In New South Wales v. Bardolph (1934), 52 C.L.R. 455, Evatt J., speaking of the Crown's capacity to contract, said at p. .475 : "No doubt the King had special powers, privileges, immunities and prerogatives. But he never seems to have been regarded as being less powerful to enter into contracts than one of his subjects." 12 Dunn v. The Queen, supra footnote 3 ; Gould v. Stuart, supra footnote 3 ; Shenton v. Smith, [1895] A.C. 229. 11 Although Lord Halsbury in De Dohsé v. R. (1897), 66 L.J.Q.B. 422n, at p. 423, suggested that any limitation on the right of dismissal is "unconstitutional", it is not supported by other authority. 14 Shenton v. Smith, supra footnote 12, per Lord Hobhouse at p. 234: "They [their lordships] consider that, unless in special circumstances where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown ; not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service". Furthermore, those who would rest the Crown's right on' the prerogative overlook the fact that the claim was not made by the Crown with regard..to -.its-.civil employees ûn- til late in the nineteenth century and eighteenth century records appear to deny the existence of such a right,

428 THE CANADIAN BAR REVIEW [VOL. XXXIII it is considered to be the public good, public policy, or the public interest in the efficient functioning of the civil service, which is both the reason and thejustification for the rule.15 The writer does not believe the cases justify the flat statement that, in the absence of statutory authority, the Crown cannot contract with its servants so as to give them tenure of office during good behaviour." The public interest in the functioning of the civil service is important but it does not require that all civil servants should be dismissible at pleasure unless appointed under a statute autho- rising other types of tenure of office." It is important to remember the public interest in the sanctity of contract, which was suggested in Attorney General v. Lindegren" to be even more important in relation to government contracts than to private ones. The public interest simply demands that a dismissal at pleasure provision be "ordinarily" implied into the contract for the benefit ofthe Crown." The executive freedom is in this way preserved to the extent required by public policy and, in the case of "special contracts"," that is where in the circumstances it is in the best interests of the Crown (as an added incentive for a particular person to join the Crown's is For example, see De Dohsé v. R., supra footnote 13, per Brett M.R. at p. 422; Dunn v. The Queen, supra footnote 3, per Lord Herschell at p. 119. 161n the following recent cases the courts held that the Crown could effectively contract to employ servants on terms other than dismissal at will: Reilly v. The King, supra footnote 3 ; Cameron v. Lord Advocate, [1952] S.C. 165 ; McLean v. Vancouver Harbour Board Commissioners (1936), 51 B.C.R. 169; Genois v. The King, [1938] 1 D.L.R. 807. See too Robertson v. Minister of Pensions, supra footnote 3. Recent cases which take the view that the Crown has no such power are : Terrell v. Secretary of State for the Colonies, [1953] 2 Q.B. 482; Rodwell v. Thomas, [1944] K.B. 596 (where the court unfortunately overlooked the decision in Reilly v. The King, supra) ; and Lucas v. Lucas and High Commissioner for India, [1943] P. 68 (which is discussed in detail at pp. 451-453 infra). 1TIt is difficult to appreciate why the Crown should not pay for any mistakes of judgment on the part of its employment officers, if it later regrets its action in engaging a servant who is subject to dismissal only for cause. In such a case the efficiency of governmental administration is not destroyed as the Crown has the power to suspend or transfer any officer (see pp. 440-443 infra) ; it puts the Treasury to extremely little extra expense; and the Crown would be setting a good example to its subjects instead of engaging in conduct considered reprehensible when practised by an individual. Furthermore, Parliament can at any time abolish an office, thereby discharging the Crown's obligations under a "special contract", or achieve the same result in practice (though not in theory) by refusing to appropriate funds for payment of the salary attached to an office. In theory of course the -lack of an appropriation does not affect the validity of a public contract (New South Wales v. Bardolph, supra footnote 11), but, even though the' contract is valid, a claimant will in practice fail to get redress if Parliament refuses to vote the necessary funds. 18 (1819), 6 Price 287. is Dunn v. The Queen, supra footnote 3, per Lord Herschell at p. 119. 20 Shenton v. Smith, supra footnote 12, at pp. 234-5, per Lord Hobhouse.

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service or for other reasons), the Crown can expressly exclude the implied term by entering into a contract under which the civil. servant is dismissible only for cause. We are dealing here with an implied term and not with an in- flexible rule of law. The pervading effect of public policy, which seeks to prevent the Crown from fettering its executive freedom, is expressed as an implied term of the contract of service. As it is only an implied term and not a limitation on the Crown's capacity to contract, it will be excluded by an express term to the contrary whereits exclusion is in the public interest." As I have said, it is generally.in the public interest that civil servants should be dismissible at pleasure. But public policyis not im- mutable" and in case of a "special contract" it is not in the public interest that the Crown.should be unable to give civil servants tenure of office during good behaviour. In short, public policy does not require an unfettered right ôf dismissal in all cases : it leaves it to the Crown, whenever necessary in the public interest, to, exclude the implied power of dismissal', at pleasure.". Although public interest

zi Robertson v. Minister of Pensions, supra footnote 3; Cameron v. Lord Advocate, supra footnote' 16 ; Genois v. The King, supra footnote 16. as It is important to note too that public policy may change with conditions and its application wilt, always depend on the circumstances of the case. The justification advaned by Groves J. in Grant v. Secretary of State for India, supra footnote 4, at p. 453, that "the safety of the- realm and possibly the existence of the Indian empire" depended on the existence of an unfettered right of dismissal, becomes ridiculous when applied to an industrial civil servant or to a, junior clerk in a government department. It is worthwhile noting in this connection that the United Kingdom government has not felt the need to rely on dismissal powers in coping with the infiltration of subversives into the government service . As we shall see, the Crown's rights to transfer and suspend its servants afford adequate protection in this respect . . sa In a, stimulating article entitled "A General Theory of Public Con- tracts" (1951), 63 Jurid. Rev. 60, J. D. B. Mitchell examines the field of conflict between the two concepts of sovereignty and of sanctity of contracts . He develops what he calls' the theory of governmental effective- ness, which would require that no contract be enforced in any case where some essential government activity would thereby be rendered impos- sible. This reduces the doctrine of public policy, which has at times been equated with "expediency", to reasonable proportions and at the same time serves to avoid many of'the weighty arguments chargeable against the droctrine in this area (e.g., that thereunder the Crown need not consider itself bound even by commercial contracts), while conceding the pre-eminence of public necessity"this fundamental principle of effective grovernment" . Ht considers, however, that the priority of private rights under contracts with the Crown should be recognized by the fact that, where their surrender is required, compensation is payable . It is sub. gested, with diffidence, that there is à simpler and more logical explana-* tion-specific performance cannot be enforced against the Crown (Crowir Proceedings Act, 1947, 10 and, l l` Geo. VI, c. 44, s. 21) . Consequently, a Crown servant can only recover damages, and restoration to his former position is a matter of grace and not of legal right. Another way of ar- riving at the same result Mitchell reaches is to say, as is suggested in this

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in the efficient running of the civil service imposes the general rule that the Crown should have considerable freedom, so far as future employment in the government service is concerned, it does not impose a blanket incapacity on the Crown to limit its future executive action under contracts of service whenever circumstances warrant such special treatment. Although it may appear so at first sight, this is not a different concept of public policy from that applied to contracts between private persons. In the case of all contracts it is clear that public policy is always a matter to be determined by the courts .24 Whether or not the parties insert a term attempting to exclude the operation of public policy, the courts must retain an over-riding power to de- clare a provision of a contract contrary to public policy. But, there is this important difference between public and private contracts. If the Crown has capacity to enter into contracts of the type under consideration(and it has capacity to enter into contracts ofservice25), the courts will attach a great deal of weight to two factors which are not present to the same extent in the case of private contracts. First, the public interest in the sanctity of contract is particularly important in the case of public contracts because of the reliance placed by private persons on the fact that the Crown is one of the contracting parties. Secondly, when the Crown enters into a contract of service under which the implied term as to public policy is expressly excluded, it considers it is in the best interests of the public and of the proper functioning of the government service to do so. The courts still determine the application of public policy to contracts of service with the Crown but the presence of these two factors will be considered largely determinative of the matter .2s

article, that the rule of public policy is only an implied term of the contract and, like all implied terms, may be excluded by an express term to the contrary. 24 See generally, Cheshire and Fifoot, Law of Contract (3rd ed., 1952) pp. 279 ff. 26 See the references cited in footnote 3 supra. 26 It is possible that in very exceptional circumstances a court might strike down such a contract on the ground that it violated public policy. But a court will normally accept the Crown's expressed view that it is in the public interest in the particular circumstances to bind the Crown's future action by provisions in the contract of service. Cf . Fender v. St. John- Mildmay, [1937] A.C. 1, per Lord Atkin at p. 12: "the [public policy] doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds. . . . In popular language . . . the contract should be given the benefit of the doubt." For practical purposes, then, we may say that the Crown may, whenever it is in the public interest, exclude the implied power of dismissal at pleasure .

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General Aspects of the Contract of Service The principle of public policy applies not only to the dismissal power but also to other aspects of the relation between the Crown and its servants, such as the- powers to suspend and transfer civil servants, and the pension, salary and leave rights of civil servants. As the Chief Justice of Néw Zealand pointed out:" "the wel- fare of the State must at all times be paramount in determining the relation ofthe Crown and the public servant" . A term is implied into every incident of the contract of service as a result of the theory that the Crown should not (not cannot) bind its future executive action. The term implied is simply that the Crown has not contracted so as to affect its future freedom of action. Thus, in the absence of an express indication in the contract of service, it will be presumed that the Crown has not agreed to give up the powers to dismiss, suspend or transfer the civil servant'at its pleasure, and that it has not bound itself either to grant pensions and leave rights or not to alter the conditions of service without the consent of the; civil servant. As this general implied term, which is applied to all aspects of the Crown-servant relationship, is strongly implied- on the grounds of public policy, the courts are -reluctant to exclude its operation unless the contract of service clearly intends to do, so. As we shall see, this doctrine of the implied term accounts for the fact that many of the civil service regulations are regarded as' directory and not as binding terms of the contract. But, although this is the position, it is still true to say, as did Starke J. in an Australian case :" "Service under the Crown involves, in the case of civil ;officers, a contract of service-peculiar in its conditions, no doubt,: and in many cases subject to statutory provisions and qualifications -but still a contract". What then is the effect of provisions of statutes and regulations relating to such matters as promotion, increases in pay, annual and sick leave, and the like, on the contract of service? This de pends on whether or not the provisions form part of the contract with the Crown, and it is easier to understand the complex and confusing position if we consider first the'position of the established civil servant in the United Kingdom whose employment is affected by regulations made under the prerogative and not by statutes, or regulations made under statutes. There is no easy answer to the question, Is either the Crown or the civil servant

27 Deynzer v. Campbell and others, [1950] N.Z.L.R. 790, per O'Leary C.J. at p.- 810. 28 Lucy v. The Commonwealth, supra footnote 3, at p. 253.

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bound by these regulations made under the prerogative? In fact, three possible answers could be given : (i) that neither party is directly and contractually bound by the regulations, which constitute mere statements of policy, but, if either party does not observe their terms or if the Crown changes its "policy", the Crown may exercise its power of dismissal at pleasure or the servant may resign immediately, as the case may be; (ii) that the regulations bind the civil servant but not the Crown, and in that respect the contract is purely unilateral; (iii) that the regulations become terms of the contract binding both the Crown and the civil servant. From the viewpoint of theory, the third answer seems to be the correct one-that the regulations do confer certain rights on a person when he enters into the civil service of the Crown. Into this contract embracing the regulations, however, is imported the idea that the Crown normally will not fetter its power of dismissal at pleasure, which, in effect, means that it normally will not fetter its future executive action. As we saw, this is not a limitation on the Crown's capacity to contract-it simply means that, unless this idea is expressly or impliedly excluded in the public interest by a contract, it is presumed that it still operates. It means too that, in the absence of a special contract, the only enforceable rights of a civil servant relate to those terms which do not affect his future employment by the Crown. So far as the future service is concerned, civil service regulations are directory only, if they attempt to limit in any way this power of dismissal it will, and it takes an express contract, which in the particular circumstances is not contrary to public policy," to limit or exclude this power. On the other hand, rights arising in respect of past service are -enforceable . Another approach, which is basically similar in results, is to say that the parties to the contract do not intend some of the regulations to give rise to legal rights upon the formation of the contract of service. But this approach and the third possibility are merely two ways of looking at the same thing, for the only reason why the parties do not intend that certain of the regulations should not give rise to binding rights and duties is because they are both aware of the general governmental policy that seeks as a general rule to prevent the Crown from fettering its executive freedom. Nevertheless, the parties are free, by their contract, to restrict the operation of the implied terms in the public interest - the point being that the courts are reluctant to do so unless the contract of service shows that it was clearly intended.' 0 29 See pp. 429 and 430 and footnote 26 supra. 11 See pp. 427-430 supra.

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The more important incidents of this contract will be examined separately, but before discussing the effect of provisions in statutes and regulations made under statutes on contracts of service with the Crown, one further question affecting -civil servants in the United Kingdom should be considered. If the civil servant under- takes to follow the regulations in force at the time he enters the service of the Crown, how, far is he affected by subsequent regulations promulgated by the' Crown? On the one hand, it may be said that he is not bound; by the new regulations but that, if he does not exercise his right to resign, then he is presumed to have agreed to a variation of the contract or, alternatively, that each change is a new contract, 'the Crown having dismissed and reap- pointed the civil servant. On the other hand, it may be argued that he is bound by the new regulations because certain terms are implied into all contracts of service. The implied term that the Crown does not contract so as tobind its future executive action in any respect (which may itself be excluded by the contract of service) applies only to conditions of service in the future and does not operate retrospectively to affect rights in respect of past service under the contract. There is one case which supports the first view. In Worthington v. Robinson" a supervisor, of Inland Revenue was reduced in rank for failing to comply with an order which he considered outside the scope of his duties and his claim for damages was dismissed by the Court of Queen's Bench. Rigby L.J. evidently favoured the first .view for he said: 32 "The plaintiff was one of the, civil servants ,of the Crown, and is bound by the rules that govern that service. I have never heard of such a thing as a civil servant, holding office at pleasure, having â right to question,the acts of those civil servants who have dismissed him from his office. I treat what has happened as a dismissal because, though in effect he has been reduced to a lower position his new appointment is in fact a re- appointment." Again, in Shenton v. Smith Lord Hobhouse said" that the particular regulations were alterable from time to time without any assent on the part of Crown servants, which could not be done if they were part of a contract with the servants. But he then explained that whether or not a civil servant is entitled to keep his office until dismissed according to the procedure prescrib- ,ed in the regulations depends on the nature of the regulations. It appears that his lordship meant that, unless, by a special contract,

31 (1896), 75 L.T.R. 446. 32 Ibid., at p. 447. 33 Supra footnote 12.

434 THE CANADIAN BAR REVIEW [VOL. XXXIII the provisions of the regulations are made part of the contract of service, they do not operate to restrict the Crown's implied power of dismissal at pleasure. This, in fact, supports the latter and not the former view. In the light of my earlier discussion it seems more consistent with the nature and application of the doctrine of public policy to contracts of service with the Crown to say that there is an implied term enabling the Crown to alter the conditions of service. This, of course, does not enable it to affect rights of the civil servant in respect of completed service-for example, to reduce his salary retrospectively. The argument that the civil servant in the United Kingdom is not bound by new regulations because he has the right to resign in such a case is not persuasive, for he always has the right to resign whether or not he is so bound.14 The view suggested here is supported in the analogous case of a subsequent statute changing the conditions of service of non- military servants of the Crown whose contracts of service are made under statutory authority. In the New Zealand case of Coker v. The Queen Williams J. said: 11 "If a person is appointed by the Crown to an office to the holder of which rights are given by statute, I conceive there can be no doubt that there is a contract by the Crown with the holder of the office that he should hold it upon the terms which the statute prescribes, and that he can sue in respect to the contract under the Crown Suits Act. If Parlia- ment thinks fit, by a later enactment, to vary the statutory rights, and so alter the contract, he can sue on the contract as altered." Again, in the Australian case of Day v. Hunkin 16 Latham C.J. rejected the proposition of Rigby L.J. in Worthington's case that every change in the terms of the engagement involves a dismissal and re-engagement of the civil servant by the Crown as incon-' venient, and said :" "But the terms of all such contracts [fixing the salary of the public servant] are, as I have just said, prescribed by the statute. If the statute, properly construed, provides that salaries may be altered from time to time in accordance with the Act, then the contract of employment itself provides for the alteration 34 Cf. in this respect the position of military servants of the Crown who are bound to continue in the service of the Crown even if their pay is reduced without their consent (Leaman v. The King, supra footnote 2) . In the case of a similar reduction in salary it is submitted that the civil servant could resign immediately, not so much, however, because of the change in conditions of service, but because he always has that right unless it is excluded (in the same way as the power of dismissal at pleasure, i.e. by the contract of service itself). 35 Supra footnote 3, at p. 194. 11 (1938), 61 C.L.R. 65. 37 Ibid., at p. 75.

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of the salaries, and such alteration is not"a breach of the contract." In the same way it is suggested that the normal contract of service provides, by the implied term to which I have referred, that salary and other conditions, of service may be altered from time to time and such alterations are not breaches of contract. There is one statement in Coker's case, which does not appear to be quite accurate. Williams J. referred to "an office to the holder of which rights are given by statute" . In fact the rights are created by the contract of service-the statute is simply an offer that certain provisions will give rights to those persons who bring themselves within its scope.. This they do by entering into a contract of service .with the Crown whereby those statutory provisions automatically become terms of the contract, and the rights, themselves arise, not from the statute, but from the contract made under it. Now this doctrine of~ public policy also intrudes itself into contracts made under statutes providing for a civil service and here again the difficulty is Ito determine how many of the statutory provisions are binding terms of the contract and how many are merely directory, in the sense that they are intended to be read subject to implied terms associated with the Crown's power of dismissal at pleasure. It is perhaps more correct to say that the "directory" terms do not; create legal rights and obligations because they are to be read in conjunction with the implied terms and are not intended to have binding effect. If the intention of the statute, however, is clearly to make the provisions relating to tenure, promotion, leave, 'and the like, binding, then these implied powers are to that extent excluded ." Nevertheless, the language of the statute has to be very clear before the courts will exclude any of the implied powers of the Crown. A good explanation of the application of public policy to contracts of service with they Crown was given by Gresson J. in the New Zealand case of Deynzer v. Campbell and others, where he said" (but only with reference to a civil service established by statute) : "The [Public Service] Commission is bound to have regard to the public interest, and to regard private or individual interest as subordinate thereto. The terms of service of a public servant are, except to the extent that statute otherwise ordains, subject to this qualification dictated by public policy, no matter to what service the servant may belong, whether it be naval, mili- 33 See Gould v. Stuart, supra footnote 3. 3s Supra footnote 27, at p. 825. It is clear that, despite the all-embracing nature of the last-quoted sentence, the relationship between the Crown and its military servants is not contractual.

436 THE CANADIAN BAR REVIEW [VOL . XXXIII tary or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based, demands that qualification. . . . In spite of some dicta to the contrary the relationship between the Crown and its servants is truly contractual. . . . the terms of the contract are to be found, except for any implied terms, in the statutes." The application of the theory of public policy to contracts of service under the Crown may, however, best be studied by considering separately the more important incidents of the contract such as dismissal, suspension and transfer provisions, and leave, salary and pension claims.

Dismissal As the earlier discussion has indicated, the most important problem is to determine to what extent the doctrine of public policy affects both the power of dismissal and any restrictions placed upon the exercise of that power by the contract of service. I shall first consider the position where there are statutory provisions relating to, dismissal and then round off the discussion by summarising the general effect of public policy on the powers of dismissal of the Crown under its contracts ofservice with its civil employees. There have been few cases where the application of statutory provisions as terms of the contract of service with the Crown has arisen, and they were all decisions under dominion laws. Ryder v. Foley4° was a claim for damages for wrongful dismissal from the police force of Queensland, Australia. Section 6 of the state Police Act provided (inter alia) that the Commissioner of Police "upon sufficient proof of misconduct or unfitness to be submitted for the approval of the Government shall have power to dismiss any ser- geants and constables". It was held by the High Court of Australia that, considering all the provisions of the act together, the section was supplementary only and did not exclude the general rule that a servant of the Crown holds office during pleasure. The general rule was in fact recognized in other sections of the statute and the. approach of the court is evident from the statement of Barton J. : 41 "What then is the reading of sec. 6 which would bring it into har- mony with secs. 12 and 15", and also from the statement of O'Con- nor J.42 that "It would seem very unlikely that the well-known incident of dismissal at pleasure, which attaches to all contracts be- 40 (1906), 4 C.L.R. 422. 41 Ibid., at p. 444. 42 Ibid., at p. 452.

1955] Incidents of the Crown-Servant Relationship _ 437

tween public servants and the Government, would be so materially altered without some more formal and direct language than that which is used in the section under consideration" . This case is not important in itself, but it does indicate the approach of the courts to this.problem-.that the power of dismissal at pleasure is strongly implied 44 all cases and, applying the canon of construction that all sections of a statute (and the implied term of dismissal at pleasure is treated almost as a section of the statute), should, where possible, be given effect, will not be rejected unless clearly excluded by the sections ofthe statute-and is, for that reason, an aid in under- standing the other and more difficult cases on the problem. In Venkatâ Rao v. Secretary of State for India in Council" the appellant, who had held office in the civil service of the Crownin India, claimed damages for wrongful dismissal from his office on the grounds that the procedure prescribed by rulè xiv of the Civil Service Classification Rules, 1920-1924, made under section 96, subsection 2, of the Government of India.Act, was not followed at the official inquiry which preceded the dismissal. Section ,96B (1) expressly provided that, "Subject to the provisions of-this Act and of the rules made thereunder, every person in the civil service of.the Crown in India holds office'during His Majesty's pleasure . . ." and section 96B (2) enabled rules to be made "for regulating the classification of the civil service', in India, the methods of their recruit- ment, their conditions of service, pay and allowances, and discipline and conduct". Certain rules were made which contained provisions for proper departmental inquiry -before dismissal and for appeal against dismissal, and it was found on the facts that the prescribed procedure had not been followed in the case. The Judicial Committee held that the rules did not in any way limit the legal right of the Crown to dismiss at pleasure, and Lord Roche said: 44 "Sect. 96B in express terms states that office is held during pleasure. There is therefore no need for the implication of this term and no room for its exclusion. The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itselffor acceptance ." He supported his conclusions - by 'referring to the inconvenience which would be caused if the courts could control the government in the detailed management of its affairs, and to the provisions in the rules for redress of grievances by administrative process and the provision in the statute reaffirming the supreme authority of the 43 [1937] A.C. ,248. - 44 lh1d., at p. 256.

438 THE CANADIAN BAR REVIEW [VOL. XXXIII Secretary of State over the civil service. But it is suggested that the rationale for the decision is the board's view that, if there is a power of dismissal at pleasure, the exercise of it cannot be wrongful, and that to provide a procedure for its exercise in effect abridges that power so that dismissal is not then at the Crown's pleasure. But is this correct? After all, the Crown must exercise its power ofdismis- sal through the proper authority and, indeed, in a case" decided on the same day as Yenkata Rao's, the Judicial Committee did not see any inconsistency in maintaining the Crown's power of dismissal at pleasure under the same act but declaring wrongful and in- operative the dismissal of a civil servant by an authority subordinate to that by which he was appointed, which was contrary to another clause of section 96B, subsection 1, ofthe act. The question is, Is a substantive right or power of dismissal at pleasure limited if a certain procedure has to be followed in order to constitute a valid exercise of the power? Of course, if the regu lations attempted to prevent the dismissal of the servant except on certain grounds, that would abridge the power of dismissal at pleasure, but should regulations or statutory provisions be regarded as "directory" only if they simply relate to the method of exercising that power? This distinction would not have affected the decision in Yenkata Rao's case because there the regulations also purported to abridge the substance of the power of dismissal, since dismissal had to be "for good and sufficient reasons". But, had the substance ofthe power not been affected by the regulations, would their lordships' refusal to accept the submission that their treatment of the section left the words "subject to the rules" appearing in it super- fluous and ineffective have been justifiable? Could they then have justifiably said, as they did," that they simply regarded "the terms of the section as containing a statutory and solemn assurance that the tenure of office, though at pleasure, will not be subject to capri- cious or arbitrary action, but will be regulated by rule"? Shortly after the Privy Council's decision in Yenkata Rao's case the High Court of Australia, in Fletcher v. Nott," had another dissatisfied policeman before it claiming damages for wrongful dismissal. Section 12 of the Police Regulation Act, 1899, of New South Wales provided that rules might be made by the governor "for the general government and discipline of the members of the police force", but the court held that the rules (which incidentally purported to limit the grounds for dismissal) did not create legal rights so

°s Rangachari v. Secretary of State for India in Council, [19371 I.A.C. 40 . 46 Supra footnote 43, at p. 257. 47 (1938), 60 C.L.R. 55.

1955] Incidents of thé Crown-Servant Relationship 439

that members of the force could be dismissed only if the procedure set forth in the rules was followed. The judges unanimously held that the rules in question were directory only and that, on a construction of the statute and the regulations themselves, it was not intended that they should form any part of the contract and so give legally enforceable rights to a constable entering into the service of the Crown. Latham C. J., after referring to Yenkata Rao's case, said : 4e "Thus it is recognised by the highest judicial authority that there is no necessary inconsistency between an officer of the Crown holding his appointment at pleasure, and the existence of rules, either contained in a statute' or made under a statutory power, which purport to regulate the manner in which an officer is to be dismissed. Such rules do not,' legally limit the power or manner of dismissal." Although this may be so where the procedure is provided for by regulations, it does not follow that the same conclusion will be reached where the statute itself prescribes the procedure to be followed. It is_ reasonable tô say that the rules of procedure contained in statutory regulations are not binding on the Crown and do not confer legal rights on civil servants because such regulations would not be merely for the government and discipline of the service or necessary and convenient for carrying out or giving effect to the statute, and therefore would be ultra vires the rule- making authority. In broader terms, under a statute in which the implied power of dismissal at will is not excluded, the power to make regulations affecting employment under the Crown does not include the power to make rules derogating from the rights, either substantive or procedural, of the Crown under the statute, or rules altering the legal position of the Crown under the statute. But surely, if the method of dismissal is prescribed by statute, it must,be followed by the Crown when it wishes to dismiss a civil servant. In all these cases the courts have, in fact, held that ,the relevant regulations or, statutory provisions still recognized the right of the Crown to dismiss its servants at will. Once we start with the assumption that the Crown has an implied power of dismissal at pleasure, then, in order for the civil servant to have a more secure tenure of office, it is necessary to have in the contract an express or implied exclusion of that power and the most that can safely be said is that the courts are very reluctant to spell out such an exclusion. The reason why that power is implied in all contracts of 48 Ibid., at p. 69.

440 THE CANADIAN BAR REVIEW [VOL . XXXIII service with the Crown is because of the public interest in the efficient functioning of the government service. I have discussed in detail the nature and effect of the doctrine of public policy in this area and pointed out that, where it is in the public interest, the Crown may by contract restrict its future executive freedom. Although the most difficult problem is to determine whether the Crown can, without statutory authority, enter into a contract of service under which the servant is dismissible otherwise than at will, it is important not to lose sight of the basic principle that a dismissal contrary to the terms of the contract of service will give rise to an action for damages. For instance, in Gould v. Stuart," Lucy v. The Commonwealth° and Williamson v. The Common- wealth" the government employee recovered damages for wrongful dismissal. On the other hand, as has already been explained, where the Crown has not limited its power of dismissal at pleasure, there is no possibility of an action for damages being successful. I have suggested ,52 however, that, though the Crown may have an unfettered power of dismissal at will in its substantive aspects, the exercise of the power may be subject to procedural requirements. Whether or not this is so depends on whether or not the procedural regulations are purely directory or are intended to become terms of the contract of service and so give legally enforceable rights. This in turn depends on the construction of the contract of service and of the regulations or statutory provisions in question. It is worthwhile noting too that the payment of a stipulated sum in lieu of the notice required under the contract of service is not inconsistent with the existence of the Crown's power of dis missal at pleasure. In Noble v. Government of Newfoundland," where such a claim succeeded, the judge, Emerson J., stressed that it was not an action for damages for wrongful dismissal (although the plaintiff was dismissible at pleasure), but simply a claim for a sum certain due under a special contract. It is in the public interest that the Crown should honour obligations of this type, which it has freely entered into by contract.

Suspension Slingsby's and other early cases" illustrate the special right of the Crown to suspend its servants at its pleasure. Although courts 4s Supra footnote 3. s° Supra footnote 3. si (1907), 5 C.L.R. 174. 52 Supra, pp. 438-439 . 53 (1902), 8 Nfld. R. 571. 54 (1680), 3 Swans. 178. And see Cloete v. Reg. (1854), 8 Moo. P.C . Cas . 484 ; and Johnstone v. Sutton (1786), 1 T.R. 493, at pp. 525-6 and 538 .

3955] Incidents of thé Crown-Servant Relationship 441 have at times equated this right with the right of dismissal at pleasure, there is a distinction between them and one can exist in a case where- the other is expressly or impliedly excluded. There is also a difference between the common-law and the statutory right of suspension, and the effects of a suspension depend on the cate- gory into which the right falls. The courts have in some cases viewed suspension as a species of dismissal. Thus in Vaillancourt v. The king 55 a Canadian government railways' . employee was suspended under a statutory pro vision "until further orders". He was later dismissed and the Ex- chequer Court held that, on the construction of the relevant rules and regulations in force at! the time, an employee was dismissible without notice in .such circumstances as existed in that case, but Audette J., speaking of the suspension, said :" "What does suspension mean, if not suspension of work which carries with it suspension of the right to', wages? . . . Does not this amount to dismissal?" Again, in WallwOrk v. Fielding" a police officer who had been suspended under"a statutory provision for "suspension at pleasure" was unable to recover his salary during the period of suspension as the court considered the relationship of employer and employee was terminated during that period. These two cases are no authority, however, for the proposition that, if the Crown exercises its common-law power of suspension, there is no duty to pay the officer his' salary during the period of suspension because in both or ;them the power of suspension ex- ercised was a special statutory power ; nor are they authority for the proposition that suspension is a necessary incident ofthe power of dismissal at pleasure. The danger of reading too much into these two. cases is clearly borne out by later Australian decisions. In Hunk'in v. Siebert" an officer in the public service of South Aus- tralia was suspended from; his duties until a chargé of larceny on which he had been arrested had been dealt with. The statutory provision for suspension did not affect the civil servant's right to salary.in such a case, but a section of the governing'statute express- Iy.reserved the Crown's power of dismissal at pleasure. The officer was acquitted of the charge but the Governor in Council subse- quently dismissed him from the service and purported to make the dismissal operative as from the date of suspension. Rich, Dixon and McTiernan JJ., in a combined judgment, said : 11 "The Crown's

ss [19271 Ex. C.R. 21 . 66 Ibid., at p. 25. s' (1921), 38 T.L.R. 441 . es (1934), 51 C.L.R. 538 . "Ibid., at p. 541 .

442 THE CANADIAN BAR REVIEW [VOL . XXXIII power of suspending its servants from office existed at common law and is of great antiquity. The manner of its exercise depended upon the nature of the office. Its exercise did not have the effect of provisionally or temporarily vacating the office, and did not necessarily deprive the officer of the right to salary". But the court held, first, that the Public Service Act, with its provision for suspension in certain circumstances, operated to define exclusively the oc- casions and mode of exercise of the power to suspend. Secondly, it expressly discounted the suggestion that suspension is an incident or concomitant of the power of dismissal and that, therefore, the reservation of the power of dismissal without cause necessarily carried with it a power of suspension . Browne v. Commissioner for Railwayss° was a New South Wales decision in which the latter point was upheld. So, then, there are two distinct types of suspension-suspension at common law does not have the effect, as does suspension under a statute, of provisionally or temporarily vacating the office, and it follows that it does not automatically terminate the right to salary." Furthermore, the Crown has the two distinct rights of suspension at pleasure and dismissal at pleasure and, in each case where a statute prescribes special conditions, the common-law right is excluded.

Transfers within the Public Service The liability of a civil servant to be transferred from post to post at the discretion of the Crown,is another of the terms implied in the contract of service on the grounds of public policy and, like the power of suspension, it is distinctive and not dependent on the power of dismissal. In Deynzer v. Campbell and others 62 the issue was whether the New Zealand Public Service Commission had the power to transfer the appellant, who had refused to answer a

so (1936), 36 S.R.N.S.W. 21. ei In this connection there is an interesting comparison with suspension under ecclesiastical law. English ecclesiastical law recognizes two types of suspension-suspension ab officio, which does not entail the loss by the suspended clergyman of his right to profits and emoluments, and suspension a benefzcio, which does have that effect -see Combe v. Edwards (1878), 3 P.D. 103, at pp. 113-4, per Lord Penzance. 62 Supra footnote 27. It is interesting to note that the government of the United Kingdom has made much use of this power to remove communists and fascists from sensitive positions in the public service . In con- trast with the American approach to the problem of communist infiltration, the United Kingdom government's programme has involved the exclusion of "security risks" from designated positions only, rather than from the entire civil service. See Bontecou, The English Policy as to Communists and Fascists in the Civil Service (1951), 51 Col . L. Rev. 564.

1955] Incidents of thé Crown-Servant Relationship 443

question as to whether or,, not he was a communist, from the De- partment of Scientific and Industrial Research to the Social Security Department on the grounds that he was a bad security risk. All four judges of the Court of Appeal, in upholding the power, considered that it was complementary to the power of dismissal at will, as being "indispensable to the- exercise of the duty of administration", and stressed that this implied power remained in the Crown, although the implied power of dismissal at will had been excluded by the statutory provisions . Just as in the case of. other terms implied into the contract of service, this right of the Crown may, where it is in the public interest to do so, be excluded by an express provision in the contract and is of course subject to, the provisions of the contract.

Leave The right to "leave" poses, several hypothetical problems. Looking at the matter from the point of view of principle alone, it is reasonable to say that the provisions for leave in the contract of service are subject to the implied term that the Crown will not normally fetter its future executive action. Consequently, leave may normally be taken only at a time convenient to the Crown. In a sense the civil employee of the Crown is eligible for, rather than entitled to leave unless his contract of service provides otherwise. One problem which has important practical applications is, What are the rights of a civil 'servant who has voluntarily, or com- pulsorily on reaching a certain age, retired from the Crown's employment with a backlog of accrued leave? In order that there should be an enforceable claim to compensation in respect of the accumulated leave it would be necessary to prove either that there was a contract that the Crown should' make an opportunity during the period of service to enable the employee to avail himself of the deferred leave, or that there was a contract to pay him extra remuneration for every period of leave which was not conceded for departmental reasons, or, in the case of a compulsory retirement at a certain age, that there was a contract to protract the period of service beyond that time in'', order to enable him to get the benefit of the leave." Usually it is clear on the facts if there is the type of contract contemplated in the second and third cases, but it is the first type of contract which is the difficult one to prove, or in some cases to disprove, depending on th&court's viewpoint of the nature of leave. 11 See Baker v. Williams (1912), S.R.N.S.W. 449.

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Thus, the Treasury in the United Kingdom" has taken the view that basically the provisions for leave do not confer enforceable rights on the civil servant in any circumstances,' whereas the Australian courts ss have tended to say that there may be a right to leave under the contract of service but, unless there is a contrary provision in the contract, the leave itself may be deferred because of the implied term in the contract preventing the Crown from fettering its future action. Not only is it more consistent with the contractual theory of service under the Crown to favour the Australian view, but, since there have been no English cases on the point, there is no bar to doing so as far as the civil servant in the United Kingdom is concerned. The difficulty then is mainly factual-when will the implied power of the Crown to defer leave be considered excluded by the contract of service? This was one of the two points under consideration in Obee v. Railways Commissioners for New South Wales." Section 13 of the Public Service (Amendment) Act, 1919, provided that every officer who had had fifteen years service "shall be entitled" to three months leave on full pay or six months leave on halfpay, and it was held by the New South Wales Supreme Court that the refusal of his application for leave on pay gave the plaintiff an immediate right of action. Although the court spoke of the statutory right to leave, it is more correct to say that the right was based on the contract, as the provisions of the statute became terms of the plaintiff's contract of service with the Crown. The court clearly considered, however, that the statutory provision excluded the possibility of an implied power on the part of the Crown to defer leave and, although on the facts stated in the report the court seems to have given too little weight to the implied term (which was not inconsistent with the express terms of the statutory provisions), it was, it is submitted, correct in its inter- pretation of the law. A related problem is to determine the nature of the implied term. In other words, may the Crown defer the employee's leave arbitra- rily at its pleasure or must it have good reason for doing so? In another Australian case Ferguson J. said (obiter) :" "if it could be

61 See the Treasury's Memorandum to the Royal Commission on the Civil Service (1929), Appendix 1, p. 32. sa E.g ., Christensen v. Railways Commissioners for N.S. W., [1921] S.R.N.S. W. 141 ; Obee v. Railways Commissioners for N.S . W., [1930] S.R.N.S.W. 201 ; Quinn v. Nott (1937), 57 C.L.R. 500. sc Supra footnote 65. s' Christensen v. Railways Commissioners for N.S. W., supra footnote 65, at p. 146.

1955] Incidents of the Crown-Servant Relationship 445

shown that during the continuance of his service he [the government' employee] was denied for an unreasonable time his right to leave, that would have given him a cause of action", which at, first sight seems to support the view that the Crown must have a sound reason for deferring leave. This approach suffers from the defect that it has the effect of excluding, otherwise than by . statute or contract, the implied power of the Crown to determine freely its future action; nor is the dictum of much assistance either way for, in the absence of regulatory provisions which become terms of the contract of service, it is very unlikely that the exercise of the pleasure would ever be considered "unreasonable" or that it would ever be held that the right to leave was denied for an "unreasonable" time. What we have just said does not affect the possibility of excluding the implied termit simply means that, if this implied power of the. Crown is one of the terms of the contract of service, its exercise cannot be questioned. A final note. Unless the contract of service provides otherwise, the only right to leave is a 'right to leave at some future time, which necessarily implies that, in order to avail himself of it, the govern ment employee must remain in the service of the Crown. Conse- quently, if retirement on reaching a certain age is compulsory and if at that time the Crown servant has not had the benefit of his leave on full pay, then (unless of course the contract of service provides otherwise) he will not be entitled to pay in lieu.of the deferred leave."

Arrears of Pay The importance of distinguishing between military and non-military servants of the Crown was pointed out at the beginning of this paper. The relationships between the Crown and its military and civil servants, respectively, I are basically dissimilar." For this reason, although military servants of the Crown have no legally enforceable rights to their pay," it does not follow that civil employees ofthe Crown cannot recover arrears ofpay. Again, the right of a civil servant to sue for arrears of pay cannot be questioned on the grounds of public policy-the services have been performed and the Crown should pay for what it has re ceived, particiularly as, if it were dissatisfied, it could (failing provisions to the contrary in the contract of service) have dispensed "Baker v. Williams, supra, footnote 63. ss See pp. 425-427 supra. I '° For example, see Leaman v. The King, supra footnote 2; Ex parte Napier (1852), L.J.Q.B .D. 332; Smith v. Lord Advocate (1897), 25,S .C. 112; Cooke v. The King, supra footnote 2.

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with his services at will. It cannot affect the Crown's future exercise of its power of dismissal at will to give civil servants a legal right to salary for past services. Furthermore, with a few exceptions, it is of the essence of a contract of service that there should be some consideration for the work performed by the servant and that he should have a legally enforceable right to recover payments due under the contract. It has, however, been held in the latest English case on the point -Lucas v. Lucas and High Commissioner for India"-that a civil servant cannot recover arrears of salary. It is submitted, with respect, that this decision is based on the false analogy oftheundoubt- ed inability of military servants of the Crown to recover pay, on an inadequate survey of the relevant decisions on the point, and on a failure to appreciate the true relationship between the Crown and its civil servants. So, in order to clear up the confusion caused by the Lucas case, it is worthwhile to consider all the cases in which this question has been raised before the courts of the United King- dom and also to examine some relevant Dominion decisions .72 It is not profitable to consider cases arising before the nineteenth century because, up to that time, the feudal concept of office as being a property right 73 was virtually taken for granted. The ear liest nineteenth century case I have found is Crawfurd v. Attorney- General,74 decided in 1819, where certain commissioners appointed by the Crown unsuccessfully claimed compensation for their services. The case is not particularly helpful because the court seems to have decided simply on the ground that, as no remuneration was stipulated, the commissioners had to rely on the bounty of the Crown. But the method of reasoning adopted by Richards C. B. suggests that he thought there would have been an enforceable claim for salary if a contract with the Crown had been proved, for he said. 71 "No salary was appointed, no contract was made, nor was there any treaty entered into for their remuneration : and, I consider, 71 Supra footnote 16. 72 The related question whether or not the salary of a civil servant can be assigned or attached is examined in detail by Logan, A Civil Servant and His Pay (1945), 61 L.Q. Rev. 240, and by Herring C.J. in Bertrand v. The King, [1949] V.L.R. 49. In view of those two exhaustive examina- tions of the problem, it is not proposed to cover the same ground again in this article. It is sufficient to endorse Logan's conclusion that the doctrine that the salary of a civil servant cannot be assigned or attached certainly does not apply to salary for past services and it is doubtful law so far as future instalments are concerned . Herring C.J. likewise doubts the validity of the "doctrine" and condemns its application to claims for recovery of salary by civil servants . 11 See generally, 1 Holdsworth, A History of English Law (1922) pp . 247 ff. 74 7 Price 1 . 75 Ibid., at p. 71.

1955] Incidents of the Crowh-Servant Relationship 447

therefore, that for such remuneration, the Commissioners necessarily relied on the discretion and grace of the Crown, and that they have no legal title to support a denial for any remuneration at all." Gidley v. Palmerston,7' decided three years later, was strongly relied on in Lucas's case, but it is certainly no authority for the proposition that civil servants; cannot recover arrears of salary. There the plaintiff unsuccessfully sued Lord Palmerston as Secretary at War to recover certain deductions made by the Crown from a pension allowance for the benefit of the pensioner's creditors. But, as the learned authors of Keir and Lawson's Cases in Constitutional Law point out, 77 the plaintiff adopted ordinary proceedings and tried, by suing one ofits servants, to obtain a decision against the Crown without the necessity of obtaining the royal fiat first. Whether the plaintiff could have succeeded by petition-of-right proceedings was not in question in Gidley's case nor was it adverted to in the judge- ment. In 1873, in the Australian case of Power v. The Queen," the peti- tioner sued for damages forwrongful dismissalfrom the police force and also for arrears of pay,, for the difference between the pay of a sergeant of the second class' from which rank he had been demoted, and that of and ordinary constable, in which rank he had served for the period before he was dismissed. One of the defences raised was that no petition would lie against the Crown to recover wages for services, but the Supreme Court of Victoria, although holding that because ofthe Crown's power of dismissal at pleasure the plaintiff could not recover damages for wrongful dismissal, enteredjudg- ment for the plaintiff for the arrears of pay without discussing the defence. The following year, in Thomas v. The Queen," the liability of the Crown under the Petition of Right Act was considered in detail. In holding that a petition of right for a breach of contract was main tainable against the Crown, Blackburn J., who delivered the judgment of the Court of Queen's Bench, said about Lord Somer's argument in the Banker's case", that he (Lord Somers) "here expresses a distinct and considered judgment that a petition of right would lie against the Crown for â simple contract debt, such as that for wages. . . . we do not find!, that this opinion has been questioned since, but rather the contrary ." $1 The Queen v. Doutre,s2 in which this question was raised, was a

71 (1822), 3 Brod . and Bing: 275. 77 (2nd ed., 1933) p. 225 . 78 (1873), 4 A.J.R. 144. 8° 79 (1874), L.R. 10 Q.B . 31 . (1695), 14 How. St . Tr. 1 . 83 Supra footnote 79, at p. 43.. 12 (1884), 9 App. Cas. 745.

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Canadian case which went to the Privy Council. The relevant Cana- dian statute specifically provided that subjects should have no greater remedies under it than were available in England before the pas- sing of the English Petition of Right Act, 1860. According to the law of Quebec, barristers were entitled, in the absence of any other provision, to sue for and recover on a quantum meruit in respect of the professional services rendered by them. Where a member of the Bar of Lower Canada had been retained by the government for a lengthy period in a fisheries dispute, it was held, in the absence of a contrary provision, that the term should be implied into his contract with the Crown and that he had a right against the Crown to recover his remuneration . Robertson in Civil Proceedings By and Against the Crowns' says, in effect, that a civil servant may by petition of right recover arrears of salary for past services, and he refers to the following unreported cases: "Bushe v. R (1869) Times News., May 29, result- ted in judgment for the suppliant. The claim there was in respect of the amount of salary due to him as master of the Court of Queen's Bench in Ireland, there having been various re-adjustments of offices and alterations of salary.'4 . . . Ray's Petition of Right (1888) was a claim by a sealer in the Probate Registry for a de- claration that he had not resigned his office and for payment of arrears of salary. Under the special circumstances the fiat was granted and the claim was settled."" The discussion to this point may be summed up by saying that the trend of authority (including Bushe v. R, which was an Eng- lish case in point, as well as other English and Commonwealth dicta) favoured the civil servant's right to recover his pay's-indeed, before Mulvenna v. The Admiralty," decided in 1926, there were no dicta to the contrary. This conclusion is supported by the Australian cases which, though not binding on English courts, not only endorse the rule that civil employees of the Crown have a legal right to their pay, but also explain the basis for that right. In Carey v. The Commonwealth,"' where the Crown had exer- cised its power of dismissal at pleasure of the plaintiff from the

81 (1908) pp. 338 and 354 ff. 81 Ibid., at p. 338. 86 Ibid., at p. 359. "In several other cases where the right of a civil servant to his pay might have been relevant, though it was not expressly raised by the court, the court either ignored the question or proceeded on the assumption that a civil servant had a right to recover his salary . See, Hales v. The King, [1918] W.N. 286 ; Sutton v. Attorney-General (1923), 39 T.L.R . 294 ; Pidduck and others v. The King (1924), 41 T.L.R. 51 ; and Hollinshead v. Hazleton, [1916] A.C. 428. 87 [1926] S.C. 842. 81 (1921), 30 C.L.R. 132.

1955] Incidents ôf thé Crown-Servant Relationship 449

office of Director of the Northern Territory, the plaintiff recovered his travelling and house allowance due at the time he was dismissed (his salary having been paid up to that date). Higgins J., in the High Court of Australia, said that the relation between the Crown and its servants involved a contract and added that under the agreement "The plaintiff is', no less entitled to travelling allowance until dismissal than to salary until dismissal" .11 Again, in Hunkin v. Siebert 9° the High Court of Australia affirmed the decision of the Supreme Court of South Australia (full court), which held that an officer in the public service of the state was entitled to his salary during a period of suspension and before his actual dismissal" It was argued in the Supreme-Court that there was no remedy for the recovery of back pay by a public servant, but this defence was rejected by the members of the court. Angas Parsons J., after examining some of the cases, concluded that the limitation applied only to military servants and, on the basis of the decisions in Thomas v. The Queen and Carey v. The Commonwealth, that a petition of right would lie in respect of a claim based on contract which was what he considered the founda- tion of the right to salary to be. Piper J. said : 91 "The ratio decidendi of the cases requires us to hold that the Public Service Acts . . . make a contract between Crown and officer, a contract which, though terminable at the pleasure of the Crown, is binding on the Crown in respect of all matters in the period between the appointment and the dismissal of an officer. If the Crown desires to deprive an officer (always ready and willing to serve if allowed) of his salary in respect ofa period previous to his dismissal, the Crown must justify such deprivation either by the provisions of the Acts or by such conduct of the officer as has released the Crown (as it would have released any other employer) . from its obligation to pay salary." This case illustrates both the existence of the right and the fact that it is based on the contractual relation of the civil servant with the Crown. To say that the plaintiff was appointed under a statute which provided for the payment of salary is beside the point and it is necessary only to compare the statute with statutes relating to the armed forces of the' Crown to realize this. It is not clear 89 lbid., at p. ,137. Admittedly the choice of Williams v. Howarth, [1905] A.C. 551, as the authority to cite in support was unfortunate, for in that case, which related to a,soldier's pay for military services in South Africa, no question arose over the right ,of the soldier to enforce payment against the Crown in a court of law, but fundamentally the approach of Higgins J. was the correct one. 11 Supra footnote 58. 11 [1934] S.R.S.A. 347, at p. 362 . ,

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from the facts given in the reports what classification the plaintiff's office was in, but, in any case, the sections of the Public Service Act, 1916, did not say more than that officers "shall receive" certain salaries or "shall be entitled to receive" annual or other increases.92 In order to give military servants of the Crown the right to recover their pay, the statute must also provide specifically, as is now the case in Australia," for the recovery of arrears. On the other hand, other persons, in order to take advantage of the statutory provisions relating to the civil service, simply bring themselves within the prescribed class of beneficiaries by entering into the employment of the Crown, whereby the statutory provisions as to salary become terms of their contracts with the Crown. In other words, it may be said that statutory provisions provide for payment of salary but, whereas they are enforceable by the civil servant because of his contract with the Crown, they are not, in the absence of a further statutory provision, enforceable by the military servant because his relationship with the Crown is not one of contract -he enters into an engagement creating a "status" relationship, not an agreement creating a contractual relationship. Furthermore, it is suggested that the right of the civil servant to recover his pay depends upon the express terms of the contract of service. In the first place, he cannot claim simply on moral grounds for services rendered because English law probably does not recognize any doctrine ofunjust enrichment sa and, in the second place, the basis for his claim is not quantum meruit, because that arises, in such circumstances, only where there is an implied contract, which of course cannot exist where there is an express con-

'2 In several other Australian cases (e.g., Browne v. Commissioners of Railways, supra footnote 60; Commissioner for Railways (N.S.W.) v. Cavanough (1935), 53 C.L.R. 220 ; Carey v. The Commonwealth, supra footnote 88), where civil servants recovered arrears of pay, the statutes were couched in similar terms. The Imperial statutes relating to the armed forces are, if anything, expressed in stronger language . Thus section 136 of the Army Act provides : "The pay of an officer or soldier of the re- gular forces shall be paid without any deduction other than the deductions authorised by this or any other Act or by any Royal Warrant for the time being". ea Section 12, Defence Act (Aust.), 1907-1950 . It is interesting to note that there is no right to recover arrears of pay or other moneys due until after the claimant has left the defence forces-see Commonwealth v. Welsh (1947), 74 C.L.R. 245. s' A recent dictum on the vexed subject of quasi contract and restitu- tion is that of Lord Porter in Reading v. Attorney-General, [1951] A.C. 507, at pp. 513-4. But, see contra, Fibroas Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd., [1943] A.C. 32, per Lord Wright at pp. 61 ff., and see generally Cheshire and Fifoot, supra footnote 24, part ix, particularly pp. 544-5.

1955] Incidents of the Crown-Servant Relationship 45 1

tract in which the question, is provided for. Admittedly, some of the terms of almost all contracts are implied, but it seems more correct to consider the civil servant's rights as arising under the contract of service itself than, under an implied agreement to pay for services received and this view is supported by the fact that the claim in all these cases was'for the actual salary prescribed rather than for the value of the services rendered . Again, in the Canadian case of Reilly v. The King, Orde J. said in the Supreme Court : 11 "There is, of course, in every appointment to public office a contractual element in that the Crown, in effect, promises to pay the salary or other emoluments fixed by law for services performed", and Lord Atkin, in delivering thejudgment of the Judicial Committee affirming the decision of the Supreme Court (though on different grounds), said : 11 "In this particular case their Lordships do not find it necessary to express a final opinion on the theory accepted in the Exchequer Court that relations between the Crown and the holder of a public office are in no degree constituted by contract. They content themselves with remarking that in some offices at least it is difficult to negative some contractual relations, whether it be as to salary or terms of employment on the one hand, and duty to serve faithfully and with reasonable skill on the other. And in this connection it will be important to bear in mind that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined ." Lord Atkin, though cautious in expressing his views, clearly thought that the Crown does contract to pay a civil servant his salary. In view of this weight of authority, it is surprising to find the court in Lucas v. Lucas and High Commissionerfor India", holding that a civil servant has no right to his pay. In that case the first defendant, an Indian civil servant, had fallen into arrears with payments of alimony and the plaintiff sought to attach his "sterling overseas pay" under R.S.C.'' Order xlv, rule 1 . Pilcher J. summed up the issue as being," "If for any reason Mr. Lucas, while contin- uing to hold his appointment in the Indian civil service and to discharge his duties, failed to receive the salary appropriate to his rank, or any salary, could he maintain an action in respect of the salary so unpaid against the Crown, through its appropriate officer? If no, such action could be successfully maintained by Mr. Lucas, it cannot be successfully argued by, his wifel,that this is, even in the words

95 [19321 S.C.R.,597, at p. 600. 95 Supra footnote 3, at pp. 179-180 . 97 Supra footnote 16. 98 Ibid., at pp. 73-74.

452 THE CANADIAN BAR REVIEW [VOL . XXXIII of Or. XLV., r. l, a debt owing or accruing from the Crown through the appropriate officer to Mr. Lucas in respect ofsalary unpaid." His lordship rightly concluded, on the authority of Gidley v. Lord Palmerston, that no action would lie against a departmental head or other officer in respect of arrears of salary, but he went a step further and held that a civil servant would be just as unsuccess- ful in petition-of-right proceedings against the Crown. In doing so he followed the decision in the Scottish case of Mulvenna v. The Admiralty," where it was held that the wages of a telephone atten- dant in the Royal Dockyard were not subject to arrestment by his wife to satisfy a decree of alimony. Two of the judges based their decisions on other grounds, but Lord Blackburn said : "I "the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong, whether it be naval, military, or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based demands the qualification. . . . it would seem to follow that the rule based upon public policy which has been enforced against military servants ofthe Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant". Admittedly, as we have already seen, certain terms are implied in contracts of service on the grounds of public policy, but it does not follow that what applies to military servants ofthe Crown likewise applies, to civil servants. Contrary to what Lord Blackburn said, it is not public policy, but rather the prerogative rights of the Crown, which prevent military servants from recovering arrears of pay, and, because of the basic dissimilarity of their respective relationships with the Crown, it is only confusing to analogise from the legal position of military servants to that of civil servants of the Crown and vice versa. It seems that Lord Blackburn almost rea- lized the inadequacy of his argument for the later said: log "if this conception of the effect of public policy on the contract itself had been developed earlier, it would have led to the same conclusions in the numerous cases to which the Lord Ordinary has referred as were reached on different and, in some cases, on somewhat unsatis- factory grounds . It would also have avoided the necessity for several statutory provisions applicable to the pay of particular services which must now be regarded as merely declaratory of the common

99 Supra footnote 87. 100 Ibid., at p. 859. 1 01 Ibid., at p. 860.

1955] Incidents of the Crown-Servant Relationship 453

law." Furthermore, in the recent Scottish case of Cameron v. Lord Advocate,"' the Court of Session trenchantly criticized the judgment of Blackburn J., Lord Mackay, who delivered the judgment of the court, considering his conclusions to .be unjustified by the English cases . Not much weight, then, should be attached to Lord Blackburn's judgment in Mulvenna's case and, for the following reasons, it is submitted that Lucas's case should not be regarded as an authority binding the English courts to deny a civil servant the right to recover arrears .of salary: (i) the case mainly relied on was a Scottish case not binding on the English courts and no more persuasive than decisions of the Commonwealth courts ; furthermore, it was not even the grounds ofthe decision of the majority of thejudges in the Scottish case, which has, itself, since been disapproved in that particular by the Court of Session ; (ii) a false analogy was drawn in the Scottish case between military and civil servants of the Crown; (iii) Order XLV; rule 1, under which the proceedings were taken, did not bind the Crown and the same result could have been reached simply on that ground; 101 (iw) earlier authority and dicta were not brought to the attention of the court and the decision was reached after an inadequate consideration of the law on the subject. Admit- tedly the textbooks 1°' generally supported the rule, but the writers' authorities were all cases involving military servants. The only case subsequent to Lucas v. Lucas and High Com- missionerfor India, where the right of a civil servant to his pay was directly in issue, was Bertrand v. The King."' In that case the Su- preme Court of Victoria, following Power v. The Queen,"' held that the Crown was under an obligation enforceable by petition of right to pay police officers';arrears of salary. It was not necessary in the circumstances for the 'court to consider cases subsequent to 1853 and Herring C.J. had no difficulty in concluding that, at that time, civil servants had a right to their salary, and that a police officer had the same right despite the rather peculiar and unilateral 102 [19521 S.C. 165. 103 This is on the basis of the well-known rule that the Crown is not bound by a statute unless the statute is specifically declared applicable to it-Robertson, supra footnote 83, at p. 611, reference is made to three cases in which the particular order was held not to bind the 104 Crown. See, for example, 9 Halsbury's Laws of England (2nd ed.) p. 692 ; 34 Halsbury, op. cit., p. 458 ; Anson, Law and Custom of the Constitu- tion (4th ed., 1922), Vol . 2, Part 1, p. 241, and Part 2, pp. 335-6; Mustoe, Law and Organisation of the British Civil Service (1932) p. 41 ; Stephen's Commentaries on the Laws of England (18th ed.), Vol. 3, p. 250 (cited by Pilcher J. in Lucas's case) ; Wade and Phillips, Constitutional Law (2nd ed., 1936) p. 94. lOS Supra footnote 72. 101 Supra footnote 78.

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nature of his contract with the Crown. As a result of that finding, he considered himself bound by the decision in Power v. Tlae Queen, without having to decide the present legal situation. But, in the same case, Martin J. said that he would have decided the other way had he not considered himself bound by the decision in Power v. The Queen, and two judges of the High Court of Austra- lia "I have denied (though obiter) the right of civil servants of the Crown to recover their pay on the ground that there is no contractual debt. On the other hand, in a recent English case"' Lord Goddard L.C.J. clearly indicated he thought civil servants could recover arrears of salary. It is submitted, then, that a civil servant has the right to recover his pay, that this right is based on the contract of service with the Crown, whether or not a statute provides for payment of his salary, and that the courts of the United Kingdom have ample justification for refusing to follow the decision in Lucas's case.

Pension Rights The matter of pension allowances is the one aspect of the relation between the civil servant in the United Kingdom and the Crown which is regulated by statute. In the Superannuation Acts, 1834- 1950, elaborate provisions are made for retiring allowances, compensation for injuries and gratuities for civil servants. ios But, al- "'Williams J. in Attorney-General for N.S. W. v. Perpetua l Trustee Company Limited (1952), 85 C.L.R. 237, at p. 269 ; Commonwealth v. Welsh, supra footnote 93, at p. 274 ; and Commonwealth v. Quince (1944), 68 C.L.R. 227, at p. 253 ; and Rich J. in the second and third-cited cases at pp. 262 and 242, respectively . 108 Terrell v. Secretary of State for the Colonies, supra footnote 16, at p. 499. me Under the Superannuation Act, 1949 (12, 13 and 14 Geo. 6, c. 44) s. 41, the Treasury may pay gratuities and allowances to civil servants and other Crown servants employed in a civil capacity who are injured or who contract diseases in the discharge of their duties . The pension schemes for Crown servants are non-contributory, but parts 1 and 2 of the 1949 act established a contributory scheme and empowered the Treasury to pay benefits to widows, children and other dependents of civil servants . But there is no "right" to any of the benefits and, furthermore, it seems that, in the event of the Treasury refusing to grant a benefit, it does not have to refund the contribution to the civil servant's personal representatives. Again, the provisions of the National Insurance Act, 1946 (9 and 10 Geo. 6, c. 67), relating (inter alia) to sickness and unemployment insurance and of the National Insurance (Industrial Injuries) Act, 1946 (9 and 10 Geo. 6, c. 62), relating to insurance in respect of industrial injuries and diseases, apply to Crown servants in like manner as to employees of private persons, subject however to any modifications which may be made by order (ss. 56 and 76 in the respective acts). The latter statute does not apply to military servants of the Crown (s. 76) but, with certain modifications, the former does (s. 57) . Furthermore, the Crown as "employer" is liable for the contributions payable by the employers under both acts.

1955] Incidents of the Crown-Servant Relationship 455 though the statutes frequently speak of the "rights" to such allowances and of civil servants being "entitled", there is no recognition of a legal right. In addition, section 30 of the 1834 .act expressly states that "nothing in this ';Act shall . . : be construed to give any person an absolute right to;' compensation for past services, or to any superannuation or retiring allowance under this Act, or to deprive the Treasury, and ',the heads or principal officers of the respective departments, of 'their power and authority to dismiss any person from the publié service without compensation", and the proviso to section 2 of the 1859 act states that "if any question should arise in any department of the public service as to the claim of any person or class of persons for superannuation under this clause, it shall be referred to the Treasury whose decision shall be final" . Under the earlier statutes superannuation allowances could be paid only to those civil servants who were appointed directly by the Crown, or who were holding certificates from the Civil Service Commissioners, and whose salary or remuneration was paid out of the Consolidated Fund qr out of moneys voted by Parliament. This created the distinction':between the "established civil servant" and the temporary or unestablished civil servant. However, com- passionate gratuities for unestablished civil servants (provided they were employed full time and paid out of moneys provided by Parliament) on their retirement or removal from the service were introduced by the 1887 statute, and nowadays the Superannua- tion Acts are also applied; with modifications, to (i) classes of non-military servants of, the Crown formerly excluded-for example, governors of the Dominions n° and members of the diplomatic service; ... (ii) persons not in the civil service proper-for example, chairmen of traffic commissioners; "2 (iii) other groups of public officers by enabling' public or quasi-public bodies, under the provisions of the Superannuation (Various Services) Act, 1938, to make similar provisions for their employees. The courts have had no difficulty in holding that there is no legal right under the superannuation acts to retiring allowances 113 and that, at the most, a civil servant has an expectation"-' that he 111 Pensions (Governors of Dominions etc.) Acts,. 1929-1947 . 111 Superannuation (Diplomatic Service) Act, 1929 (19 and 20 Geo. 5, c. 11) . ns Chairmen of Traffic Commissioners etc . (Tenure of Office) Act, 1937 (1 Ed. 8 and 1 Geo. 6, c. 52) . ua See, for example, Edmunds v. Attorney-General (1878), 47 L.J. Ch. 345 ; Cooper v. R. (1880), 14 Ch.D. 311 ; Yorke v. R., [1915] 1 K.B . 852 ; Walsh v. The Crown, [1927] A.C. 337. 114 Per Lord Buckmaster L.Ç. in Considine v. McInerney, [1916] 2 A.C. 162, at p. 170.

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will, in due time, receive an annual allowance at a particular rate. This is not the only question, for what is the legal position if an allowance has been awarded by the Treasury, but the amount of the allowance is not in accord with the scale prescribed by the Superannuation Acts? There were strong dicta in one caselis favouring the beneficiary's right to an allowance at the statutory rate in such circumstances, but this view is now generally dis- credited."' In addition to saying that the Treasury minute which the appellants claimed was the basis of their contracts with the Crown did not constitute an offer, the House of Lords in Nixon v. Attorney General"' rightly pointed out that the power of the Lords Commissioners of the Treasury to pay pensions conferred on them by statute is a discretionary power and that they had no authority to contract themselves out of the exercise of it. The reason why civil servants of the Crown coming within the scope of the Superannuation Acts have no rights to pension and similar allowances under their contracts of service with the Crown is that the statutes themselves prohibit the creation of contractual rights in such circumstances. Whether or not a non-military servant of the Crown to whom the Superannuation Acts do not apply may, by his contract of service, obtain a legally enforceable right to a retiring allowance is a difficult question. In essence the answer depends on whether such a payment should be regarded as an act of bounty on the part of the Crown or whether it should be considered as a reward for past services or, perhaps more accurately, as an additional payment due under the contract of service for services rendered. If the latter is the correct view, and it is submitted that it is,"' then the Crown servant clearly has a legal right to the allowance (although the payment is subject to parliamentary appropriation of

"'In re Lupton, Ex parte the Official Receiver, [1912] 1 K.B. 107, per Cozens Hardy M.R. at p. 114, Fletcher Moulton L.J. at p. 115 and Philli- more J. at p. 109. its Nixon v. Attorney-General, [1930] 1 Ch. 566; affirmed on appeal to the House of Lords, [1931] A.C. 184. 317 Ibid. ns It is fair to say that in practice the government takes into consideration the value (or rather the anticipated value) of retirement allowances when determining the salaries to be attached to positions . Likewise, employees are attracted by the general conditions of service, including retirement provisions, as well as by the actual salaries paid, and retirement benefits will compensate for higher pay scales in positions where no such benefits are offered. So it is reasonable to say that these allowances are part of the servant's compensation for services rendered and that in the long run, and whether the scheme is contributory or non-contributory, the real incidence of the cost of a superannuation programme is placed on the employee .

1955] Incidents of the; Crown-Servant Relationship 457

the necessary funds year by year 111), as the Crown's future execir- tive action is not fettered in such a case merely by the obligation to make annual payments ôf money."' Probably because so many of the Crown's employees come. within the scope of the S I erannuation Acts; there is only one English case on this point ;and ,it was decided over a century and a half ago, but some assistance is afforded by decisions of the Australian, Canadian and, Irish courts. The sole English decision, Oldham v. Lords of the Treasury, is not separately reported but is cited in Ellis v. Earl Grey.121 The King had granted a pension which had later been revoked and a new pension granted, but in the meantime it had been assigned to the plaintiff, who filed a bill against the Lords of the Treasury to compel them to pay the new pension to him. The Court of Exchequer dismissed the bill on the grounds that the Lords of the Treasury was not the proper party to the proceedings, but in doing so said that a petition of right would have lain. Although this is an old case, and at best an indirect authority, it does indicate that, in the absence of such enactments as the Superannuation Acts, 1834-1950, which specifically deny the "right" to pension and other allowances, a non- military servant of the Crown will have an enforceable right to the allowance provided for under his contract of service with the Crown. In Balderson v. The Qüeen122 and Miller v. The King 123 the Canadian courts held that a civil servant retired or removed from office had no right of action to recover any allowance under the Superannuation Act, such allowance being entirely in the discretion of the executive authority, and Audette J., in the latter case, said 124 that"no'!contractual relation arises between the Crown and its servants with respect to superannuation allowances, unless some statute expressly creates such 'a relationship". Again, in Kidd v. The King, 125 where a petition of right to recover an annual military pension and interest on alleged overdue instalments thereof under certain provisions of the Militia Pension Act,. 1906, was dismissed, the same judge said : "I "the Crown's right to dismiss or to superannuate or pension a civil servant or a militiaman may be entirely regulated by statute, cutting out the prerogative rights. . . . the Crown's prerogative may be taken away by Parlia-

11s See New South Wales v. Bardolph, supra footnote 11 . 126 Ibid. 12 (1833), 6 Simon 214, at p. 220. 122 (1897), 28 S.C.R. 261 . 123 [1931] Ex. C.R. 22. 124 Ibid., at p. 23. -121 [1924] Ex. C.R . 29. 126 Ibid., at p. 31.

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ment in respect of any such matter, but, that the prerogative should be taken away beyond all manner of doubt by the Statute, is in- sisted upon in all cases, and when there is a doubt upon the face of the Act it is the duty of the Court to hold that the prerogative is maintained". Neither of these dicta are binding, even on the Canadian courts, as to the possibility of obtaining by contract a right to a retiring allowance. This is because in Kidd's case the . pension rights of civil servants were not in issue, and because the true rationale of the other cases was that the statute in question expressly stated that it did not confer "any absolute right to superannuation allowance, or impose any statutory obligation on the Crown to grant it", and, therefore, the Canadian government could not exclude or renounce its discretionary power except with statutory authority since the power itself was given by statute. On the other hand, in Smyth v. Regina,"' the Judicial Committee held that the appellant was entitled under section 107 of the Pub- lic Service Act of Victoria, 1890, to a superannuation allowance by virtue of having held the office of Prosecutor for the Queen, notwithstanding that he held office during pleasure, and in other Australian and Irish cases, 128 where statutes contained no express provisions denying the right to the allowance, claims by civil servants to retiring allowances were upheld. Those pension rights were created by the relevant statute in a sense, but they were legally enforceable only when the claimant had brought himself within the statute by entering into a contract of service with the Crown, and the enforceability of the rights flowed from the contract. In the same way, then, as the right of non-military servants of the Crown to pay arises from the contract of service rather than from a statutory enactment, so it may be argued that pension rights under statutes or otherwise arise in the same way. The matter is not free from difficulty but, if the view of the source of the rights to pay and pensions (whether or not there are statutes providing for their payment) expressed here is correct, then it follows that, in the absence of such statutory provisions as those contained in the Superannuation Acts, 1834-1950, prohibit- ing the creation of such a legal right, non-military servants of the Crown may, under their contracts of service, obtain legally enforceable rights to retiring allowances and compensation.

127 118981 A.C. 782. 1211 See, for example, Wigg v. Attorney-General for Irish Free State, [1927] A.C. 674; Williams v. Delohery, [1913] A.C. 172 ; Ex parte Gibbon, [1929] S.R.N.S.W. 182.

1955] Incidents of the' Crown-Servant Relationship 459

Conclusion The military servant is virtually rightless as against the Crown because the relationship is not in any any way contractual, but the civil employee has certain rights arising from the contract of service. But the contract of service between the Crown and its non- military servants differs in certain important features from the contract of service between private persons. This is due to the pervading effect of the rule, of public policy which, as an implied term of the contract of service, seeks to prevent the Crown from fettering its executive freedom. But, in the first place, this implied term cannot affect vested rights arising under the contract in respect of completed service ;', and, in the second place, as it is only an implied term and not a ;limitation on the Crown's capacity to contract, where it is in the, public interest to do so,129 it will be excluded by an express term to the contrary. This doctrine of the implied term accounts for the fact that many of the civil-service regulations are regarded as !directory and not as binding terms of the contract. Another way! of considering such regulations is to say that the "directory" regulations are not intended by the parties to the contract to create legal rights, but basically the two ap- proaches are just opposite sides of the same coin.

The Fusion mf the Legal Profession This brings me to my last word 'on this subject. England, like South Africa, is one of the few countries where the legal profession is divided into two branches : barristers to present lthe case to the court ; solicitors to do the work of preparing it beforehand. It is often suggested that these two branches should be merged into one single profession as in the United States and many of the countries of the Commonwealth. There may be some advantages in fusion, but I cannot help thinking that one of the reasons why justice is, as we think, so well administered in England is because there is a comparatively (small number of barristers who maintain the very high standards and traditions of which I have told you. High standards can be maintained among a small number of men-because each one is jealous to notice divergence from principle and no one of them would willingly forfeit the good opinion of his fellows. But it could not be done among a large number. (Rt. Hon. Lord Justice Denning The Traditions of the Bar (1955), 72 So'Afr. L.J. 43, at p. 57) 129 Nevertheless, it must be 'remembered that, although the fact that the Crown has by contract agreed to limit, its future executive freedom in a particular respect will normally be considered determinative, of the public interest in the circumstances of the case, it, is for the courts to decide whether or not a contract of service with the Crown violaies public policy See pp. 429-430 supra. ,