§ SIR JOHN HAYsaid, he rose to ask the Secretary to the Admiralty whether it was intended to continue to withhold from the Captains on the Reserved List the pay to which they were entitled under the Order in Council of 1851, and to move for an Address to Her Majesty to take into con- 1917 sideration the case of those officers. The question turned on the legal construction of an Order in Council, by which certain officers of Her Majesty's navy had consented to accept a position which, according to the strict terms of the order, would have been a boon to them. A breach of faith had, however, been committed by the Board of Admiralty towards them, by which the position accepted by those officers had become to them a serious detriment instead of a boon. The facts were these:—In 1851 the right hon. Gentleman the Member for Portsmouth (Sir Francis Baring;), then First Lord of the Admiralty, found himself in a difficulty how to give promotion to a number of deserving officers whose advanced years rendered it impossible that they could be as efficient in the higher ranks as was to be desired. There were then a variety of retired lists, all in inextricable confusion. These officers objected to being made to retire, because they all felt that they had some work left in them, and each man preferred to stand on his own merits. In consequence of that the right hon. Baronet the Member for Portsmouth drew up a reserve list, and these fifty captains were persuaded to go on it as a sort of post of honour. They were told that, according to the terms of the document put before them, with the exception of active employment, they were to receive the same benefits, promotion, and rewards as their brethren of the active list. The House was probably aware that when a captain on the active list rising gradually had arrived within 170 of the top, he received an increase of pay to the amount of 2 s. per day, but when Captain Gordon, who was put at the top of this reserved list, arrived within 170 of the top of the active list, he applied for the increase of 2 s. per day, but it was refused to him. That occurred in 1859, and all the others who had applied since at the Admiralty had been in like manner refused. They contended that they had a legal right, and they had obtained an opinion from an eminent Queen's Counsel (Mr. Lush), that if the bargain had been one between private parties, they could have enforced it in a court of law; but, of course, they had no such remedy against the Admiralty, The claim of those officers was also supported by opinions which had been expressed by Lord Chelmsford and Sir John Pakington in favour of the construction put on the arrangement by them. The 1918 right hon. Member for Portsmouth (Sir Francis Baring) had also stated that in drawing up the order it was not his intention that it should bear the construction which those officers put upon it. That, however, did not affect the legal meaning of it—it only showed that the right hon. Gentleman had made a mistake in drawing up the order, and it was hardly fair that those Gentlemen, who had been cajoled into accepting the offer, should be the sufferers by the mistake. By an Order in Council, captains who had been ten years on the list of captains, and had not been employed, if they had passed the age of fifty-five years, had the option of accepting, in place of all further promotion, the sum of 18s. a day, and he had no doubt that a great number of these officers would be glad to accept the benefit of this order, which they contended ought to be common to them with their brethren of the Active List. He had calculated that the charge to the country of the concession of their claim would be equal to an annuity, on lives over sixty-five years, of £6 16s. 1d. per day.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "an humble Address be presented to Her Majesty, praying Her to take into Her most gracious consideration the case of the Reserved Captains of Her Majesty's Navy,"—instead thereof.
§ ADMIRAL WALCOTTI have much satisfaction in giving my support to the Motion before the House, convinced as I am, from the inquiries I have not failed to make, that the officers, at the time they accepted the captain's rank on the Reserved List, did so on the clear understanding that the construction they put on the order was the correct one, though I dissent from the opinion expressed by the hon. and gallant Officer that they had been cajoled into accepting it; because every one acquainted with the public and private character of the right hon. Member for Portsmouth must know that he was incapable of any act not strictly consistent with truth and honour. Believing then, as I conscientiously do, that both in reason and in justice these officers are entitled to their demands, I with all my heart, beg to second this Motion, and I will hope my noble and gallant Friend the Secretary of the Admiralty, will have the grace and wisdom to accede to it.
§ LORD CLARENCE PAGETsaid, he quite agreed with his hon. and gallant 1919 Friend (Admiral Walcott), that Whatever Was thought of the order in Council, it would have been better to abstain from accusing so distinguished a statesman as the right hon. Member for Portsmouth of cajoling those officers into the acceptance of their present position. His right hon. Friend had carried away with him from the Admiralty the high opinion of the whole navy for his fairness and ability; and cajolery was a thing which no First Lord of the Admiralty at the present day was ever guilty of. With regard to the reserve captains, he had often stated that a great many of those gallant officers believed that they had been wronged. But he was positive that neither the form of their commission nor the circumstances under which they received these appointments gave them any fair reason to suppose that they were to remain in the same position as the active officers of the navy. Two categories of officers were comprised in the Order in Council of 1851: first, a certain number of commanders, who would not have been entitled to promotion to the captain's list until they had arrived at the head of the list of commanders, were promoted to the reserve list of captains; and, secondly, a number of commanders and lieutenants were removed compulsorily from the active list on to the reserve list of commanders and lieutenants, but without promotion, being told that this change should not damage their prospects. The officers, however, who were promoted from the active list of commanders to the reserve list of captains never had the hopes of further advancement held out to them at all. They were old officers, who might have remained for years in the commanders' list; and his right hon. Friend offered to promote them at once to the rank of captain upon the reserve list, giving them distinctly to understand that they were no longer liable to serve. But, he should be asked in that case what was the distinction between promoting them on the reserved list and the retired list. Well, the distinction was that the officers put on the retired list came upon it by seniority, but these officers were put upon the reserve list out of their turn, so that the position of the two classes was quite distinct. The Admiralty were not entitled to promote officers to the retired list of captains until they obtained their promotion by seniority; and therefore his right hon. Friend, in order to lighten the active list, chose from among the commanders a certain number and 1920 made them reserve captains, upon the distinct understanding, he believed, that they were not to serve nor to rise pari passu with the officers of the active list. Any departure from that understanding would, he contended, be unjust towards the officers of the active list; for why should a body of men be put upon the reserved list; to rise pari passu with them, and yet not be liable to serve? But more than that, his hon. and gallant Friend was asking the House to inflict a great hardship upon these officers themselves. It was perfectly true that the Order in Council was not worded so distinctly as he wished it had been. But what had the Admiralty done in consequence of that supposed ambiguity? They took the case of the officers into consideration two years ago, and he had proposed, not to make their position the same as that of officers on the active list, but that those who had served a certain number of years should be allowed at once a considerable increase of pay. There were 90 officers on the reserve list, and upwards of 70 had benefited by the arrangement to which he referred, some of them receiving 6s. a day more than they would have received if they had been On the active list. Thus, three-fourths of those 90 officers were at that moment getting higher pay than their brethren on the active list, because it was said that there might have been in their minds a doubt of what their position was to be under the order in Council. If, therefore, they were now allowed to rise only as the officers on the active list rose with regard to pay, their extra allowance must be taken away, and the position of three-fourths of them would be damaged by the Concession which was now asked for in their name. Under those circumstances, while their position was positively better than that of their brethren on the active list, to allow of their also rising to the higher grade of admiral with the officers of the active list would be unjust and unfair to the navy generally, and would produce great discontent and dissatisfaction. He therefore trusted that the Motion would not be pressed to a division.
§ SIR JOHN HAYexplained, that he had not intended to say that the right hon. Member for Portsmouth, for whom he entertained the greatest respect, had cajoled these officers, but that they had been cajoled by the wording of the Order in Council.
§ SIR JOHN PAKINGTONsaid, he was glad to hear the explanation just given by 1921 the hon. and gallant Member, as he agreed with his noble Friend that no First Lord of the present day would attempt to cajole the officers of the navy. As, however, he formerly had the honour of filling the office, he was anxious to know what construction the noble Lord put upon the words "of the present day."
§ LORD CLARENCE PAGETI wish my right hon. Friend to think that I included him amongst the number.
§ SIR JOHN PAKINGTONsaid, in that case he fully agreed with his noble Friend. He repeated he believed that the right hon. Gentleman (Sir F. Baring) was incapable of cajoling the officers of the navy, and it was satisfactory to find that the hon. and gallant Gentleman did not intend to make the imputation which his words seemed to convey. The question was as to the construction of an Order in Council which was ambiguous and badly worded. On the last occasion when it was brought forward the right hon. Gentleman declared that it was not his intention that these officers should have the benefits which they sought; but in a spirit of great generosity he distinctly stated that he should be glad if the Admiralty could see their way to make the concession. As to what the intentions of the right hon. Gentleman might have been, it was most dangerous to construe any public document by considering what were the intentions of the Minister who proposed it. The right hon. Gentleman might have lost his seat for Portsmouth, in which case he would have been unable to tell the House what he intended. The only safe rule was to consider what the Order in Council itself expressed. Having studied the Order in Council, he not only found it ambiguous, but he was supported by high legal authority in stating that its fair construction was favourable to the officers who were now seeking this benefit. That being so, it was with great regret that he heard his noble Friend, who was himself a distinguished sailor, opposing the claims of these officers. In point of amount the concession would involve but a small matter. The officers asked for that concession, and he doubted whether it was worth while to go on year after year contending against a claim that had a legal opinion in its favour. He should be glad to hear, if there was any doubt on the subject, that the Government would give the officers the benefit of it.
§ MR. BAILLIE COCHRANEsaid, be thought if the concession were made a financial question, as the noble Lord the 1922 Secretary of the Admiralty appeared to put it, the amount was very trifling; but the officers looked on the matter as a recognition of their position in the service. The noble Lord himself said the Order in Council was ambiguously worded, and he hoped the House would consider the question as one of justice and right.
§ LORD CLARENCE PAGETexplained, that he had not said the order was ambiguously worded, but that the officers considered it was so. He thought himself that the order was clear; he could not assent to the opinion that it was ambiguous.
§ SIR FRANCIS BARINGsaid he could not allow the discussion to close without giving some information to the House that might assist it in coming to a decision. The right hon. baronet (Sir J. Pakington) assumed that he (Sir F. Baring) had not intended by the order to interfere with the just rights of any officers. With that he quite concurred; but, at the same time, when the meaning of a public document was to be ascertained, it was not unusually thought worth while to refer to those who framed it. He quite admitted, that if a promise had been made by the order, though against his intention, such a promise ought to be performed; but he denied entirely that by the wording of the document a promise was conveyed in any shape whatever. As to the legal opinion of its construction, unless a lawyer knew all the facts of the case, and all the details and circumstances that might affect the warrant, it was impossible for him to give a fair account of its meaning. He must state to the House that by the Order in Council he intended to deal with two classes of captains. A certain number of old captains he promoted, but with no intention of giving them any further advantage than the promotion they so received, and at the time very gladly received, without any condition or persuasion on his part. The other class of officers were commanders promoted to the rank of captain, and removed from the active to the reserved list. To these officers it was his intention to retain all the advantages they had before they were so transferred. All that was done for them was to remove them from one list to the other. The plan was fully stated in the Navy List, in these terms—
While my Lords have recommended the abandonment of the system of brevet promotion in future, they are nevertheless desirous of meet- 1923 ing the claims of old officers when hare served long and well, and who seek their promotion rather as a reward for past services than in the expectation of further employment. To meet these claims equitably, and, at the same time not to fill the active list with officers who cannot long continue fit for service, their Lordships will promote by selection fifty commanders to the rank of captain. These officers will be placed on reserved half-pay.With respect to one class of officers, there was no promise of any advantage beyond the promotion. But the other class, who were placed an reserved half-pay, were allowed to retain all the advantages of rising to higher rank and receiving pensions. As to any question of law, it was rather for the law officers of the Crown than the House; but he doubted whether the opinion of a lawyer on the subject was of very great value. He had no hostility to these officers; far from it. He was the first to recommend the arrangement, from which he believed the service had derived considerable advantage. When he was asked to state his opinion on the case of the officers in the House, he had gone through the papers fully, and he was obliged to tell them he was sorry he could not support their case; he was satisfied they had no claim.
§ SIR FITZROY KELLYsaid, he had no doubt the right hon. Gentleman had correctly stated what bad been his intention); but the real question was this—what was the natural, fair, and ordinary interpretation of the Order in Council, and in what sense was it accepted by those it affected? Now, they had the opinion of one of Her Majesty's counsel that if the order could be submitted to a court of law, its decision would be in favour of the officers; that such would be the decision on a contract between man and man drawn in the language of the order. They also had for that the high authority of a noble and learned Lord in another place to the same effect. The noble Lord admitted that the order in Council, if not ambiguous, was not as clear as could be desired, and if there were a doubt likely to lead to injustice, it was easy to modify the order in Council, or to issue a new order. Common justice and equity required that the construction should he put upon it which was contended for by these officers.
§ SIR MICHAEL SEYMOURsaid, that as a naval officer, sympathizing with men who believed that their claims were founded in justice, be should support the hon. and gallant Officer if be went to a division.
1924 At the same time, there was a still larger question remaining for determination—namely, the whole scheme of retiring allowances in the navy. The present scheme (that of 1860) was partial in its character, utterly excluding from its operation the higher class of officers; and it was impossible it could become permanent.
§ SIR HENRY LEEKEsaid, he thought the time had arrived when justice should be done these officers if they had right on their side. They asked to be put on the same footing of equality with brethren by whose side they had stood for many years. The sum required to effect that object was not more than £2,000 a year, and he would recommend that a mixed Committee, consisting of two generals, two admirals, and two civilians, all Members of the House, be appointed to settle the matter in dispute.
§ MR. WHITBREADsaid, that there were three points which required to be borne in mind by the House in dealing with the subject. The first was, that in 1851, when these officers were placed upon the Reserved List, they got a step in rank and a large increase over what would be their normal half-pay for the next eight or ten years if they had gone on in their ordinary course. The next point was, he could not understand how they could expect to rise on that list of half-pay pari passu with other officers, when staring them in the face in every Navy List which had been published from that time was the announcement that the increase of half-pay which they claimed was only given to the first seventy and the next hundred on the active list. In the third place, these officers must either be treated as on the half-pay or the retired list. The Admiralty, taking the latter view, had extended to them the benefits which were given to other retired officers under the Order in Council of last year. He wished the House to bear that in mind in considering the claims of these officers. They could not be treated at once as officers on the active list and on the retired list. If they were treated as officers on half-pay, and allowed to rise in the same ratio as other officers, there would be taken away from the large majority of them those emoluments and advantages which the Admiralty had given to them, in common with other officers, on retirement for length of service. They could not have the advantages of half-pay and those of the retired list at the same time.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided: —Ayes 72; Noes 66: Majority 6.