HC Deb 01 July 1953 vol 517 cc382-5
27. Sir H. Williams

asked the Secretary of State for the Colonies whether his attention has been drawn to the decision of the Lord Chief Justice in the case of Mr. A. Terrell to the effect that colonial judges are not protected against the Executive; and, in view of this, if he will consider introducing legislation to give colonial judges the same protection as the judges in the United Kingdom.

29. Mr. Marlowe

asked the Secretary of State for the Colonies whether he is aware that the High Court of Justice has now negatived the ruling of his Department given to this House on 21st June, 1950, with regard to the security of tenure of colonial judges; and whether he proposes to introduce legislation to give these judges the security which his predecessor claimed they enjoyed but which the High Court says they do not.

The Secretary of State for the Colonies (Mr. Oliver Lyttelton)

I do not agree that the judgment in question has the effect that colonial judges are not protected against the Executive or that it negatives the statement made on 21st June, 1950. I consider that colonial judges are amply protected and secure in their offices and that legislation for this purpose is unnecessary. I also doubt whether legislation would be practicable.

Sir H. Williams

In view of the decision of the Lord Chief Justice, is not it rather difficult to justify the statement my right hon. Friend has made? This man was dismissed; in effect he was deprived of his rights; the High Court in this country is deciding that he has been properly dismissed by the Executive. Should not judges be properly protected?

Mr. Lyttelton

I think that the hon. Baronet is mistaken. It is very difficult to deal with this tangled matter by question and answer. In the first place, the judge was not dismissed. In the second place, I think that the Lord Chief Justice used a phrase to the effect that the judges hold their offices in Colonial territories at the Queen's pleasure. I must point out to the hon. Baronet that the Queen's pleasure can be exercised only upon the advice of Her Ministers—in this case myself. Since 1870 it has been an established practice which is de facto and not de jure that no Colonial judge can be dismissed by the Executive without reference to the Secretary of State for the Colonies and to the Judicial Committee of the Privy Council.

Mr. Marlowe

Is my right hon. Friend aware that his answer is really not in accordance with the facts? The simple fact, as is the position of judges in this country, is that they cannot be dismissed while of good behaviour; but this judge while of good behaviour had his office terminated. Therefore, it is not true to say that they are in the same position. Will my right hon. Friend investigate why it was when I raised the matter on 21st June, 1950, with his predecessor—and I make no reflection on his predecessor because obviously this was on the advice of his legal advisers—he said that: … it is the case that the tenure of office of Colonial judges is as secure as that of judges in this country."—[OFFICIAL REPORT, 21st June, 1950; Vol. 476, c. 1277.] Yet when this matter came to the courts the assertion was made to the contrary. How does it come about that misleading information was given to this House?

Mr. Lyttelton

The information is not misleading, because, as I have said, colonial judges hold their offices at Her Majesty's pleasure, and Her Majesty can only exercise her pleasure on the advice of her Ministers. In fact, the de facto safeguards which colonial judges have are at least as good as any which could be laid down by legislation. Other questions were raised whether it would be appropriate that this House or the Colonial Territories should legislate in this matter, but, if left to the Colonial Territories, other considerations would arise. I am very willing to discuss the matter, but I am in some difficulty in dealing with a matter so complicated by Question and answer.

Mr. Hector Hughes

Is the right hon. Gentleman aware that the questions raised are very grave and far transcend the question of the dismissal or otherwise of a particular judge? Will he therefore consult with the learned Attorney-General as to the desirability and possibility of the same juridical principles being applied in these matters throughout the British Empire?

Mr. Lyttelton

The hon. and learned Gentleman has referred to the dismissal of a judge. This is merely a question of the relationship between the date of his retirement and what pension he is to enjoy. I am fully aware that this is a most important matter, and I am quite willing to continue my researches, but it would be only fair to the House to say that the further I look into it the more I am satisfied that the present system, which has been in force since 1870, gives more effective protection to colonial judges than any legislation.

Mr. Dugdale

As I was definitely referred to by the hon. and learned Member for Hove (Mr. Marlowe) as having given the answer to his question in 1950 dealing with this subject, would I be entitled to ask a question which might throw further light on the matter?

Mr. Speaker

I did not hear any reference to the right hon. Gentleman, but he may ask his question.

Mr. Dugdale

Is it not a fact that, if this country were to be overrun by the enemy, judges in this country would be in exactly the same position as Mr. Terrell, and that that is what caused the difficulty?

Mr. Speaker

That seems to me to be somewhat hypothetical.

Mr. Marlowe

On a point of order. In view of the fact that my right hon. Friend has said that this is not a matter which can be dealt with satisfactorily by Question and answer, would you, Mr. Speaker, think that it might be a suitable subject for debate on the Motion for the Adjournment for the Summer Recess?

Mr. Speaker

I will deal with that when I come to it.

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