HC Deb 27 July 1858 vol 151 cc2192-205

Amendment to Clause 31 read a second time.


said, that he entertained great objections to this Amendment. The clause provided for the competitive examination of the civil service and the medical service. By the Amendment the latter was passed over, and the medical service became nominative. At present, although theoretically there was a system of competitive examination in the medical service, practically there was none at all. Thus, in the May examination, though there had been twenty-five appointments to fill up, there were only seventeen candidates, and of these only ten passed. In the last month there were forty medical appointments, but only thirty-seven candidates, of whom thirty-one had passed the minimum examination. In reality, therefore, there was not a competitive examination; the candidates only passed a minimum examination, as was done previously under the system of nomination. What led to the small number of applications for these appointments he did not know; perhaps the remuneration was considered inadequate, or perhaps this particular service was unpopular. At the same time, he presumed that the House would wish the system of competitive examination to be maintained in the medical as well as in the civil service, and he himself was quite in favour of that system.


said, with regard to the system of competitive examination generally, he had not the least desire to avoid discussion upon that subject, and he should be prepared at the proper time with an explanation respecting it, as he thought what had passed elsewhere had been greatly misunderstood.

Lords' Amendment agreed to.

Amendment in Clause 32, by which were struck out the words:— And the candidates who may be certified by the said Commissioners or other persons as aforesaid, to be entitled under such regulations shall be recommended for appointment according to the order of the proficiency, as shown by such examination, and such persons only as shall have been so certified as aforesaid, shall be appointed or admitted to the civil service of India by the Secretary of State in Council.

Read a second time.


I trust the noble Lord the President of the Board of Control will, before the House disposes of this Amendment, give us that explanation which he has just been good enough to promise. It was my wish, as well as the wish of many other Members of this House, that the principle of competitive examinations should be more generally sanctioned in this Bill, and that it should be extended beyond appointments in the Civil Service and in the scientific branches of the army. The noble Lord the President of the Board of Control has frequently declared himself to be in favour of that principle, and has assented to the insertion in this Bill of a provision sanctioning its adoption. He has, however, at the same time stated it to be his opinion that to introduce such a principle in the case of all appointments in the army in India would be premature; that such a proceeding would be open to the charge of being precipitate legislation; and that it was, therefore, expedient to confine the system of competitive examination to admission into the Civil Service and into the scientific branches of the army,—namely, into the artillery and engineers. Now, I confess it appears to me that that was a very fair view of the question to take, although the proposal of the noble Lord does not quite go to the extent which I should desire. That proposal, however, affords, I think, some earnest that her Majesty's Government would not be found averse hereafter, should experience be found to establish the success of the competitive system, to its further extension. But while in this Bill the other House of Parliament have left in the clause all the words which relate to the maintenance of the principle of competition in certain cases, they have struck out all those words under the operation of which persons undergoing an examination of this description should, as a matter of course, receive the reward which they might be entitled to expect; the result being that the power will be practically vested in the Minister of the day to put an end to those examinations altogether or not as he may deem expedient. Now it is obviously of no value that it should be enacted that a certain system of examinations should be established unless the young men who may happen to compete at those examinations obtain those rewards, which, if successful, they were led to suppose they would receive. Under these circumstances it is, I think, absolutely necessary that we should restore the words which have been omitted from this clause in the other House of Parliament, inasmuch as it would be, in my opinion, most objectionable that the discretion to which I have adverted should be left altogether in the Minister of the Crown. The noble Lord at present at the head of our Indian Administration is, it is true, favourable to the principle for which I contend, and would, I have no doubt, carry into effect the clause as it stands in a fair and liberal spirit. Another Secretary of State for India might, however, entertain entirely different views upon the subject of competitive examinations. He might say that he required practical men for the public service in that country, and that he would not adhere to a system under which young men had merely shown themselves to be proficient in certain departments of learning. To prevent the possibility of such a state of things as that hereafter arising, it is, I think, our duty to disagree with the Lords, Amendment.


Sir, I hope the noble Lord has done me no more than simple justice in the observations which be made in reference to myself personally—observations which are equally applicable to the other Members of the Government, when he said that he believed me to be favourable to the principle of unrestricted competition. I supported that principle five years ago, at a time when it was far less popular than I am happy to say it is at present, and when a strong feeling in opposition to it prevailed in more than one quarter. I have not since altered with respect to it the views which I then entertained; and nothing, I may add, during the progress of this measure through Parliament, afforded me greater pleasure than the circumstance that I was placed in the position of one whose duty and privilege it was to extend that principle of which the noble Lord is to-night the advocate to the scientific branches of the army in India. I therefore can assure the noble Lord that if the alteration which has been introduced into the clause under our notice were in my mind calculated to have the effect of destroying or impairing that right of free competition which we in this House have asserted, I would rather resign the office which I have the honour to hold than give to that alteration my assent. I do not, however. believe that the Amendment will have any such operation, and I may, perhaps, be permitted to state to the House in a few words the circumstances under which it was introduced. In the first place, the clause as it now stands, or rather as it will stand, if this alteration be agreed to, will leave the question of competition for the civil service upon the same footing as that upon which it has stood ever since 1853, when the right hon. Gentleman, who was then President of the Board of Control, introduced a Bill which was understood, and rightly understood, to sanction the adoption of the principle of competition in the case of appointments for the civil service; but which still does nothing more than give to the Crown the power to establish the system of competitive examinations by means of an Order in Council. If, therefore, the Amendment under our consideration should be agreed to, no existing right would be impaired under the operation of this clause. The change which, during the progress of this measure, I proposed to introduce with respect to the principle of unrestricted competition was simply to recognise in an Act of Parliament instead of in an Order in Council the right to admission into the public service which might be thus acquired. When that change was proposed, we were told that it would be quite opposed to constitutional practice, inasmuch as its effect would be to give to administrative and executive appointments the sanction of a Parliamentary title. There is, as far as I can ascertain, no precedent for adopting such a course. We therefore felt ourselves obliged to admit that the objection was a valid one. Then arose the question by what other provision could we secure the adoption of this competitive principle? The clause under consideration was passed as affording the best means of attaining that object. The noble Lord, however, says that if this alteration which has been introduced into it in the other House of Parliament be assented to, it will altogether depend upon the discretion of the Minister of the day whether the system of competitive examinations is or is not carried into effect. Now, I do not think that the matter stands precisely upon the footing which the noble Lord seems to suppose. It must be borne in mind that the regulations under which those examinations are to be conducted must be laid down by means of an Order in Council. That Order in Council may, it is true, be subsequently altered or modified by another, but then you will always have this check upon the action of the Minister, that that subsequent Order in Council must, within the shortest possible time, be laid before this House, which will thus be challenged to express its opinion with respect to it. Now, knowing as we do that the great majority of the Members of this assembly—as will, I have no doubt, be the case in every successive Parliament—is favourable to the principle of unrestricted competition, we may, I think, confidently trust that the feeling which pervades the present will animate every future House of Commons, and take that feeling as a sufficient guarantee that no Order in Council will be sanctioned, the object of which may be to modify or repeal the principle of unrestricted competition. Let me suppose, for instance, that the Minister should, by means of a new Order in Council, attempt to sweep away that principle, and to return to the old system of nomination, without or without an examination test. What, I ask, would be the result? The Order in Council would be laid upon the table of this House. The propriety of issuing it would be discussed. A Motion would be made expressing the views of the House on the subject, and a division would be taken upon the question; and how, I should like to know, could it be possible that any Minister would have the power to carry his own views in favour of the principle of nomination in opposition to the feelings and wishes of the House of Commons? If, by any possibility, any future Minister should possess such a power, how, I ask you, will the rejection of this Amendment afford any additional security against its exercise? You have now, it is said, the security of an Act of Parliament. But such an Act can always be repealed, if Parliament should change its mind. The practical guarantee for the maintenance of the principle of free competition rests now, as it has done hitherto, in the known feelings and opinions of the House of Commons upon the subject. I may also be permitted to remind the House that when a system of this kind is once established it cannot be swept away at a moment's notice by any Minister, however desirous he may be to dispense with it. When you have the system in operation, and men are undergoing a process of training with the view of availing themselves of the advantages which it presents, no change subversive of it could be introduced without a notice of at least twelve months, or more probably two years. A challenge would thus, as it were, be thrown out to this House which would be thus afforded an ample opportunity of asserting their opinion in respect to the question which it may happen to entertain. The House will have that opportunity, and whether its opinion be expressed in one form or another appears to me to be quite immaterial. The clause was drawn to meet the difficulty of constitutional law, and it is a great difficulty. But I must state my firm belief that whether these words be omitted or retained, the principle of unrestricted competition is equally safe, and equally certain to be maintained. Upon no other understanding could I be induced to consent to the Amendment that has been made in the clause.


said, that in his opinion the House ought to insist on some further safeguard for the continuance of unrestricted competitive examinations than a mere Order in Council. No doubt if they could have the assurance that the noble Lord would always be at the head of the Indian Government, they might trust to his support of the principle of unrestricted competition. But suppose the noble predecessor of the noble Lord who had so recently attacked that system in so strong a manner, were restored to office, what would be the value of such assurances in that case? He should, therefore, vote for the retention of the clause.


If the noble Lord the Member for London divides the House upon this point, I shall feel it my duty to divide with him. I have the utmost confidence in the assurance of the noble Lord the President of the Board of Control, for I well remember the vote which he gave in 1853, when I had the honour of voting with him when this principle of open competition was not, as he has truly said, nearly so popular as it is at present. I ventured last night, on another question, to say, that this was the age of progress, and I was told by the hon. and learned Member for Sheffield (Mr. Roebuck) that I should have said an age of change. Now, this Amendment of the Lords is certainly not progress, but it is change. It is really and substantially a reversal of the decision which this House, after full discussion, has adopted. The noble Lord (Lord Stanley) had very correctly described what took place in 1853. It was considered by the Government of that day that the civil service of India should be opened to direct competition; but no such provision was inserted in the Bill itself. It was given effect to by an Order in Council issued in the following year. But after full deliberation on this question, it was thought expedient to give a statutory recognition to the principle, which did not before rest on statute. The noble Lord, however, says he can see no difference as concerns civil appointments, of which alone we are talking at present, between an Order in Council to be laid upon the table of this House and a statutable recognition such as was contained in this Bill when we sent it to the House of Lords. I must differ with the noble Lord upon that point. To repeal an Act of Parliament which confers a statutable recognition is a long and serious operation; but by a single vote depending upon the presence of hon. Members and a variety of accidents a decision may be given upon an Order in Council. I believe the principle of unrestricted competition embodied in the Bill as we sent it to the other House, at all events as regards civil appointments, was a sound principle. I do not think it would be safe to depart from that principle; but it would be an act of retrogression upon a most important point—the management of the civil patronage of India. I have the highest confidence in the success of the competitive system. We have the opinion of Sir John Lawrence, the highest authority in India, whose recent experience of these civil appointments, which have taken place under a system of open competition, has been, I am told, so favourable, that he earnestly desires, in conformity with the gallant General below me (Sir De Lacy Evans) that that principle may be extended to the scientific branches of the army. Thus we have experience, authority, and the decision of this House in favour of the system, and I can see no reason for the alteration that has been made by the other House, for I cannot conceive the reason that has been suggested—that it was supposed the sons of the middle classes were not so well fitted for the appointments as the sons of the nobility and gentry. Upon these grounds, therefore, I shall certainly give my vote with the noble Member for London.


said, he thought there would be no controversy between his right hon. Friend (Sir J. Graham) and the Government on one or two points; especially would there be no controversy between him and them as to the last point he mentioned—that the sons of the middle classes were fully as much entitled, if they were found equally qualified, to these appointments as the sons of the nobility and gentry. That was a point on which there could be no controversy whatever. Another point on which there would be no controversy between them was that the competitive system, which was first introduced by regulations prescribed under the Act of 1853, though not by the Act itself, was intended by the Government to be as fully and fairly acted upon for the future as it was at the present moment. The question that was raised between them was this, whether they were to tie up the operation of that system within the four corners of an Act of Parliament, or whether they were to allow the Government a liberty, under certain circumstances, of subjecting that system to alterations and modifications. The danger of inserting a clause of that kind in the Act was, that it tied up the matter altogether and left no latitude to the Government, however important or necessary it might be, to effect any modifications in the system or in the mode of carrying the principle into effect. He took leave to say that such a power had never been taken in any Act of Parliament yet. But the security they had already for the continuance of the competitive system was as great as it well could be short of the objectionable system of inserting it in the Act; for by the words of the clause itself the regulations made upon that question by the Secretary of State in Council must be laid upon the table of the House within a month, so that the House had the most complete power to pronounce an opinion on the alterations that might be made, while they retained to the Government the additional power of considering whether under certain circumstances it might not be expedient to alter or modify the system. His right hon. Friend said this was an age of progress, while the hon. and learned Member for Sheffield called it an age of change. Well, his right hon. Friend was a great constitutional authority; and if he were sitting on that (the Ministerial) bench—as he heartily wished he was—he would say that nothing could be so unadvisable as that the Crown appointments should be made in such a way as to deprive Ministers of the responsibility in making those appointments. But if they restored the words which the Lords had removed, that responsibility would be, to some extent, taken away; and, therefore, in his judgment the omission of these words was better than their insertion, not because the omission did away with the principle of competitive examination, but because the insertion deprived them of the power of regulating it afterwards.


said, the argument of the right hon. Gentleman necessarily led to the conclusion that the principle of competitive examination was to be given up altogether. It reserved a discretion to the Crown, leaving that discretion as wide as any Minister chose to make it, and the whole object of the clause would be lost. He could understand that the Government should wish to abandon the principle of competitive examination, but he could not understand why the whole world should be invited to compete, as they were in the opening of the clause, if there was to be no security that the successful candidates should be appointed. But if any person were not appointed after being successful in the competition, it would give rise to a charge of unfairness and partiality against the Government, which ought, above all things, to be avoided. He would, therefore, give his vote for restoring the clause to the shape in which it had left that House.


said, he thought the hon. Member for Devonport (Mr. Wilson) hardly appreciated the measure which the Government had presented to the House. His objection was, that if the clause as amended by the Lords were passed in this House, the result would be, that there would be no security that those who were successful in the examination would be appointed. Now, they had this security, as his right hon. Friend had explained; they had the security of the existing Order in Council, until that order were revoked or modified. But it could not be revoked or modified without the modification being laid on the table of this House, so as to invite the opinion of the House upon it. Therefore, any person who was successful in open competition had this double security for his appointment—first, the Order in Council; and second, the veto of the House of Commons upon any change in that Order; and he ventured to think that that was a security which all the candidates for examination would consider perfectly satisfactory for the future, as it had been considered satisfactory in the past. The House was quite agreed about the principle of competitive examination; and, as he believed, quite satisfied with the declaration of his noble Friend that he was prepared to carry out that principle to the utmost. But then there stepped in this objection to the Bill as it left that House, that they first declared in the Bill that all appointments were vested in the Crown, and then they had a Parliamentary declaration that such persons only should be appointed as fulfilled certain conditions. It was a mockery first to give the appointments to the Crown, and then to say that those appointments should be conferred solely by a Parliamentary title altogether independent of the Crown. That was a constitutional objection, of which he thought hon. Members opposite would feel the force; and it was on that ground that his noble Friend had proposed that the Amendment of the Lords should be assented to.


said, he wished to remind the House that the question was in a very different position now from what it was in 1853. They had now changed the Government of India, and one of the chief dangers that had always been apprehended by those who had seriously considered that question was, that which might arise from placing of the Indian patronage wholly in the hands of the Crown. Now, in 1853, if the competitive system had been abolished, the patronage would have fallen back into the hands of the Directors of the Company, where it had always been; but if it were abolished now, it would fall into the hands of the Crown. He did not feel much confidence in the duration of the Council which was about to be established, and it was against the abuses of future Parliaments that they had to guard. If in future times Parliament should relax its vigilance—and he had no great confidence in their watchfulness—the same danger would arise which had for so many years made successive Governments shrink from abolishing the system of double Government which had hitherto existed.


said, he had never been a great enthusiast for the competitive principle, but having had some experience of the competition in the civil service, he was bound to say the young men who had been selected for offices in that service were admirable specimens. He thought that, having agreed on that principle, no one could hesitate to say that an Act of Parliament would afford the strongest security for carrying it out, now that an issue had been raised as to whether its operation could be best secured by that means or by an Order in Council. An Order of Council might be overlooked or be left to sleep on the table of the House; but once having got the principle within the four corners of an Act of Parliament, it could only be set aside by an Act of the Legislature; and there would be then no risk of the system of competition being destroyed without such an examination of its merits as would show that its destruction was due to a manifest change in public opinion. He would, therefore, urge the House to adhere to the Bill in this respect as it was sent up to the Lords.

Question put, "That this House doth agree with the Lords in the said Amendment."

The House divided:—Ayes 60; Noes 73: Majority 13.

Amendment in Clause 34 read a second time.


said, that the system of competitive examination was as good for the scientific branches of the army as for the civil service; and he had a Motion to submit with regard to the scientific arrangements of the army. He therefore proposed to reinsert the words omitted by the other House after the word" examination," as follows:— And the candidates who may be found entitled under such regulation shall be recommended for such cadetships according to the order of their proficiency, as shown by such examination.


said, it was clear that the principle involved in the former discussion was equally applicable here, and after the expression of the opinion of the House in the recent division he would not contest it further. In taking leave of this subject, he could only express his hope that, though the House had preferred one mode of establishing this principle to another, they would not believe—what, certainly, was not the case—that it was the intention of the Government to abandon a principle that had been so frequently and so distinctly affirmed.

Amendment disagreed with

Amendment in Clause 35 read a second time.


said, he was extremely unwilling to raise slight objections to any portion of this Bill, which he was ready to acknowledge had been conducted through the House by the noble Lord (Lord Stanley) and the Government with remarkable fairness and candour; but it appeared to him that the insertion in this clause of the words "preventing or" would constitute a very great difference in its meaning. He approved the spirit and object of the clause as it left that House, because, as it then stood, it gave no encouragement to unnecessary wars. All the aggressive wars that had taken place in the history of India had been carried on under the pretext of repelling threatened invasion. He need only allude to the, Affghan war in illustration of this statement. He was quite confident that if these words, "preventing or" were allowed to remain, the clause would be rendered altogether nugatory. Take the case of Nepaul. The Governor General might raise the question that in his opinion invasion was intended on the part of that State, and with the view of preventing such threatened invasion hostile proceedings might be undertaken at a great cost to the revenues of India. It had been said, however, that these words were a solecism, as if it was absurd to send troops out of the country to repel an invasion when the enemy must be actually in the country. He had to state that the clause was drawn by a skilful dialectician, and one too that had no mean skill in logomachy, and these were the terms that occurred to him to use. He did not say that in repelling invasion they ought not to take troops beyond the external frontier. This was done on the very last occasion on which their Indian provinces were invaded. The Sikhs crossed the Sutlej, thereby invading our territory. Lord Hardinge repelled the invasion, and drove them across the Sutlej and carried the troops beyond the external frontier. This was a sort of operation which it would not be desirable to prevent, for to meet invasion by going beyond the frontier was a legitimate mode of carrying on hostile measures. On the other hand, taking hostile measures to meet threatened invasion was precisely the course of proceeding which had led during the last century to the most offensive, profligate, and aggressive wars, and it was most de. sirable that every precaution should be taken, as far as enactment could do so to prevent recourse being had to such a policy. On these grounds he objected to the introduction of the words "preventing or" by the Lords.


said, he thought that when the Governor General had reason to believe that preparations for the invasion of our Indian territory were being made near the frontier, he ought to have the power of sending beyond the frontier a force sufficient to frustrate the designs of the enemy, because by so doing he might, by a speedy blow, prevent that expenditure of blood and treasure which would be occasioned by an actual invasion. Every man at all acquainted with the art of war must know perfectly well that nothing could be more foolish than to wait until an enemy who contemplated invasion had completed his preparations before you attacked him. The hands of the Governor General ought not to be tied up in such matters by an Act of Parliament. Lord Hardinge was disinclined to believe that the Sikhs intended to invade the empire, but had he been certain of that he would have crossed the Sutlej, and brought that war to a much speedier end.


said, there could be no doubt that our Indian army would be placed at a great disadvantage if it were not permitted to cross a river for the purpose of attacking an army that was making preparations to invade our territory. An attack of that nature might be the best mode of defending our territory.


said, that with all deference to his right hon. Friend, he did not think that the words "preventing or repelling actual invasion" would have covered such a case as that of the Affghan war, because that war was carried on at a great distance from our then frontier in India for the purpose of establishing a safeguard, not against actual invasion, but against a nation that at some future time might have attempted to invade our territory. He had reason to believe that the intention of inserting the words objected to was to remove the objection of some persons who said that there was a contradiction of terms in saying that you were not to cross the frontier except for the purpose of repelling invasion. Speaking strictly, there could be no invasion to repel until the enemy had crossed the frontier. But the truth was, that the clause was more a declaration of the intention and opinion of Parliament than anything else. The words "except in case of urgent necessity or actual invasion" were, in fact, so wide that a court of law would construe them so as to make them cover everything which could possibly be imagined. He believed that if the Governor General could establish the fact that in directing the Indian army to cross the frontier his object was bona fide to prevent invasion a court of law would hold that he was justified in acting upon his own judgment. It would be impossible to hold him guilty of a breach of the clause if he could establish the honesty of his intention. He thought the first part of the clause was such as to render it superfluous for the House to criticise minutely the legal effect of the other part, and therefore he should recommend the House to adhere to the clause as it stood.


said, he agreed with the right hon. Member for Carlisle that the word "preventing" would cover almost any military operation in India. The words "urgent necessity" would meet the case of an army assembled on the frontier for the purpose of invasion. He was in favour of adhering to the original words, as he thought it desirable to impose every restraint on a Governor General, in resorting to the dreadful alternative of war.


observed that he was afraid that the phraseology of the words of an Act of Parliament was not likely to prevent wars in India. Past history told them that every Governor General somehow or other found himself engaged in a war, and the Home Government always felt themselves compelled to support him.

Question put, "That this House doth agree with the Lords in the said Amendment."

The House divided:—Ayes 95; Noes 28: Majority 67.

Committee appointed,To draw up Reasons to be assigned to the Lords for disagreeing to the Amendments to which this House hath disagreed:"—Lord STANLEY, Mr. CHANCELLOR of the EXCHEQUER, Mr. SOLICITOR GENERAL, Lord JOHN RUSSELL, Sir JAMES GRAHAM, and Mr. VERNON SMITH. To withdraw immediately; three to be the quorum.

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