THE CASE OF MR. BOURKE. (Hansard, 25 February 1895)

§ *THE EARL OF ERNE
asked the First Lord of the Admiralty whether, having regard to his statement on Lord Ashbourne's Motion, that Mr. Charles Bourke, Chairman of the Irish Prisons Board, was removed from his office because the Government thought he was not the man to carry out certain changes which they thought desirable; and also to the fact that Mr. Bourke had been denied the power of testing in Court their contention that he was not the head of the Prisons Department; the Government would take care that he did not suffer injustice in pension by premature dismissal before attaining 65 years of age; and that, if necessary, for the purpose, Mr. Bourke's service before his appointment in 1868 be taken into account, or that he be afforded an opportunity of serving in some adequate capacity up to that age, or be afforded some other equivalent. He reminded their Lordships that Mr. Bourke's and a similar case were brought before them a fortnight ago and were discussed at considerable length. On that occasion not a single unofficial Peer defended the action of Her Majesty's Government, and he thought the impression was very general that, to say the least, a somewhat hard measure of justice had been meted out to a very deserving public servant. He had no intention of raising the discussion again, but he wished simply 1442 to ask the Government, having regard to all the circumstances of the case, and to the fact that no inefficiency or misconduct had been alleged against Mr. Bourke, whether they would find him an equivalent in another office, or in considering the pension to be granted to him would allow him some compensation for having been forced to retire before his time. There were two precedents for the first course, the first being the case of Sir Robert Hamilton. When Lord Salisbury's Government came into Office in 1886 they found Sir Robert Hamilton in the position of Under Secretary, and, presumably, owing to their belief that he was not the man to carry out certain desirable changes, they dispensed with his services; but they placed him in another important post as Governor of an Australian Colony, where he discharged his duties with ability and to the satisfaction of all. When the present Government succeeded to Office in 1892 Sir West Ridgeway occupied the same post. He was not a persona grata to the present Government, and was given an opportunity in the Isle of Man of exhibiting his very considerable administrative qualities. If it were not possible to provide for Mr. Bourke in the same way, he submitted an alternative to Her Majesty's Government. He had looked up the case of Sir Thomas Brady, which arose under the Order in Council of August 1890. He was 69 years of age, seven years older than Mr. Bourke, he had 45 years of service, and was consequently entitled to the maximum pension; but he was given a gratuity of £1,000. He believed that he was removed in precisely analogous circumstances. There was a third alternative he wished to submit, and that was that Mr. Bourke should be allowed to count his service as Secretary to the Chief Secretary from 1866 to 1868. There was a point which he believed was not brought before the House a fortnight ago, but he brought it forward now to show how efficiently Mr. Bourke had discharged his duties. In the year 1887 the total cost of the Prison Department in Ireland was £141,751. This last year it was £100,377, a diminution, as compared with 1877, of £41,374. On all these grounds, and seeing that Mr. Bourke had not been removed in consequence of any charge of 1443 misconduct or inefficiency, he submitted to the Government that they should give favourable consideration to his claims.

*THE FIRST LORD OF THE ADMIRALTY (Earl SPENCER)
said he would reply quite shortly. He would take one point the noble Earl had made with regard to the desirability that Mr. Bourke should be allowed to count his service as private secretary towards his pension. With regard to that, he had to state that, as a rule, in the public service, the service of a private secretary, who might afterwards become a permanent Civil servant, had never been allowed to count towards pension. But that point was not material, because in certain offices in the Civil Service 10 years was allowed in addition to actual service, and that rule applied to this particular case of Mr. Bourke, in which the 10 years to be allowed would be from 1858 to 1868, and it was during part of that time that he acted as private secretary. He had really nothing to add to what he said the other day; but he would like to say, with regard to the question of the noble Earl, that no removal from office was premature if the officer removed was above 60 years of age; and, therefore, Mr. Bourke suffered no injustice and received treatment identical with all officers so removed. It would be grossly unfair to other officers if an exception were made in his favour. He wished merely to say in addition that this was not a solitary case of an officer being removed after attaining the age of 60. There had been innumerable cases in which that had been done. The noble Earl had quoted three cases as parallel to this. He denied altogether that they were precedents. Both the case of Sir Robert Hamilton and of Sir West Ridgeway were totally different. They were both cases of younger men who had by no means completed their term of service, and in other respects the cases were not parallel. With regard to the case of Sir Thomas Brady, his case came under a different part of the Order in Council, and he had attained the age of 65. Mr. Bourke was retired at the age of 62, because, in the estimation of the head of his office, it was in the interest of the public service that he should retire. He did not wish to say any more on the 1444 subject, but that he was afraid Her Majesty's Government were not in a position to grant the request made by noble Earl.

§ LORD ASHBOURNE
was very sorry that the noble Earl had not held out any expectation of meeting the suggestions made by his noble Friend to treat with some consideration this servant of the State, who had served so many years with such ability. The case was plainly a hard one, and doubly so because it was not covered by any precedent. It was only owing to the accident of Mr. Morley being Chief Secretary that Mr. Bourke's career had been cut short, that at the age of 62 he was summarily dismissed and prevented from obtaining the pension to which he would have been entitled. He would ask their Lordships to remember that Mr. Bourke was dismissed by letter which stated that the ground of the dismissal was that the Lord Lieutenant was head of the Department, and that letter contained an indication of the opinion which the Executive entertained of the character of Mr. Bourke's services, for the following passage occurred in it— I need hardly say that I should be glad to recommend the Treasury to award the full pension to which you are entitled by length of service. That showed that the Lord Lieutenant did not feel in a position to challenge the perfect efficiency and loyalty of Mr. Bourke's services. Mr. Bourke at once challenged the ground taken in that letter, and then a new ground was put forward—namely, that the Lord Lieutenant had power to terminate his services at pleasure, and a fortnight ago the noble Earl opposite took the further ground that certain changes in the Prison Department were in contemplation, and that Mr. Bourke was not the man to carry them out. There was not, however, any hint in the whole correspondence or any suggestion that Mr. Bourke had expressed unwillingness or want of zeal in respect of the carrying out of any changes or reforms that were seemed to be desirable. The noble Earl's argument as to the perpetration of injustice towards other Civil servants could not stand the test of examination, because Mr. Bourke's contention throughout—and it was supported by powerful legal opinions—was 1445 that he was the head of a department, and he had asked leave to litigate that question and the opportunity had been denied him. There was no precedent for the summary dismissal of Mr. Bourke, who had been treated with scant consideration.

§ THE LORD CHANCELLOR (Lord HERSCHELL)
said, that he must utter a most earnest protest against the course that had been taken and against the observations of his noble and learned Friend. As he had explained on a former occasion, an Order in Council was passed two or three years ago—not by the present Government—which provided for the removal of officers in the Civil Service who had passed a certain age. That Order was enforced by the late Government in the cases of many men who had passed the age of 60, but had not reached the age of 65. Those officers were just as much heads of departments as Mr. Bourke was. Perhaps they were not so highly placed, and had not so many friends as he had in their Lordships' House. If every public servant, removed under this Order in Council, who had friends in that House, was to have his case brought before their Lordships—if the Government were to be challenged in every such case, the only object of those who passed the Order would be defeated; that object being that when a public servant had passed the age of 60 it should be open to the heads of his department to consider whether it was or was not to the interest of the public service that he should remain in it, and to retire him on a pension without assigning reasons for their action. The object of the Order in Council was to make it possible to call upon an official to retire without going into the question of his efficiency. They must not be unfair to men who had fulfilled functions just as important as those discharged by Mr. Bourke. There were such men who had been removed in precisely the same way. How unfair it would be to them if Mr. Bourkes case were treated differently from theirs! They were English officials. Were Irish officials to enjoy exceptional treatment? 1446 It surely was not expedient that their Lordships' House should be made a kind of tribunal of appeal in these cases. Nothing could be more mischievous, more contrary to the public interest. His noble and learned Friend suggested that Mr. Bourke had suffered in consequence of Mr. Morley's being Chief Secretary. But it had been stated clearly that Mr. Morley had removed him in the public interest, and if Mr. Morley was right in his judgment Mr. Bourke ought to have been removed in any case, no matter who might be at the head of the Irish Executive. He protested strongly against this plan of bringing before that House by way of appeal the cases of individual Civil servants who had been dealt with in the ordinary administrative manner.

§ THE MARQUESS OF LONDONDERRY
asked, what was the ground of the Chief Secretary's change of tone in regard to Mr. Bourke's dismissal, if, as the noble and learned Lord seemed to think, the Chairman of the Prisons Board was not the head of his department? Their Lordships would remember that in the first letter dismissing Mr. Bourke, Mr. Morley relied on the Order in Council, but subsequently shifted his ground entirely, and relied upon the prerogative of the Lord Lieutenant. This change of view, he maintained, proved that Mr. Morley had realised that Mr. Bourke was the head of his department, and that he therefore could not be dismissed under the Order in Council?

§ THE LORD CHANCELLOR
explained that, when a Civil servant was removed under an Order in Council, he was really removed by an exercise of the prerogative of the Crown. The Order in Council itself did not put an end to his employment; it was the Crown's prerogative that ended it. This ending of a man's employment by the exercise of the prerogative did not indicate in any way that his case was not within the Order in Council, for whether his case came within it or not his service could only be determined in that way.