Judge (Retirement) (Hansard, 21 June 1950)

§ 21. Mr. Marlowe
asked the Secretary of State for the Colonies upon what grounds it is stated in the memorandum of February, 1947, sent from his Department's legal adviser to the General Council of the Bar relating to the removal from office of a Judge of Appeal in 1276 Malaya whose name is known to him, that the normal and prescribed retiring age is 55; where and in what document it is so prescribed; and when, how and in what form this condition of employment was brought to the notice of the judge in question at the time of his appointment.

Mr. Dugdale
The memorandum in question stated that it was customary for judges to continue in office, in most cases, until they attain the age of 62, but that the normal and prescribed retiring age is 55. This provision has been contained in the Malayan Pension law since before the appointment of the judge in question in 1930, and a copy of the law then in force was sent to him at that time.

§ Mr. Marlowe
Does the right hon. Gentleman appreciate that this unpublished law gives the Colonial Office the power during seven years, from "the age of 55 to 62," to dismiss a judge without any reason given, which is exactly contrary to the statement of the Lord Chancellor in another place that Colonial judges are to enjoy the same independence as judges in this country?

Mr. Dugdale
I think that a Question of the hon. and learned Gentleman I shall be answering a little later will deal further with that point.

§ 22. Mr. Marlowe
asked the Secretary of State for the Colonies whether he is aware that High Court judges in this country are by virtue of the Act of Settlement irremovable while of good behaviour; whether he is aware that the Lord Chancellor in a statement of 1st November, 1949, confirmed that judges in British Colonies have the same independent status as High Court judges at home; and whether these principles were taken into consideration when, by letter dated 7th April, 1942, his predecessor removed from office a judge of appeal in Malaya whose name is known to him although there was no suggestion that he was not of good behaviour or otherwise unfitted to hold office.

Mr. Dugdale
I am aware of the position of High Court judges in this country. The Lord Chancellor's statement confirmed that judges in British Colonies in discharging their judicial duties and in reaching conclusions of fact on the issues before them are just as independent of 1277 the Executive as are judges in this country. He did not refer to security of tenure though it is the case that the tenure of office of Colonial judges is as secure as that of judges in this country. Owing to the occupation of Malaya by the enemy it was not possible for this judge to continue performing the duties of his office, and as no other appropriate post was available he was necessarily treated as having retired upon abolition of office.

§ Mr. Marlowe
How does the right hon. Gentleman reconcile that statement with that of the Lord Chancellor, in view of the fact that this judge was removed without any suggestion of misconduct or being unfitted to hold his office? If the position is as the right hon. Gentleman suggests, the Colonial Office have the power to dismiss a judge and, therefore, to detract from his independence. It is impossible for a judge to carry on his work in that situation.

Mr. Dugdale
It is not a question of dismissal. Dismissal applies some censure. There was no question of that at all. It is simply the case that there was no work for him. No doubt if Britain had been occupied by an enemy there would be no work for the judges in Britain.

§ Mr. Marlowe
How does the right hon. Gentleman explain that this was the only judge to be treated in this way, and that every other Malayan judge was given another appointment and retained on pay until reaching pension age? How does he square that with the removal of this particular judge?

Mr. Dugdale
There was a general disturbance in Malaya at that time and this judge, in common with the other judges, was, naturally, unable to perform his functions.

§ Mr. Walter Fletcher
Would the right hon. Gentleman agree that there was, in fact, a very great deal of work for judges immediately after the occupation?

Mr. Dugdale
There was later, but not at the time of the occupation.