HC Deb 08 July 1953 vol 517 cc1232-5
32. Mr. Marlowe

asked the Secretary of State for the Colonies what safeguards exist to prevent the removal from office of a colonial judge who is fit, competent and of good behaviour, at the will of the executive before he reaches his retiring age; and in what circumstances, before the pleasure of the Crown is exercised to terminate any such appointment, an address is required either from the Imperial Parliament or from the colonial legislative assembly concerned.

Mr. Lyttelton

The removal of a colonial judge, while fit and under retiring age, from an office which still existed would be regarded as dismissal and therefore require reference to the Judicial Committee of the Privy Council. I do not know of any circumstances in which an address from Parliament or a colonial legislature is required before the appointment of a colonial judge can be terminated.

Mr. Marlowe

Is my right hon. Friend aware that High Court judges in this country can only be dismissed or removed by legislation of both Houses of Parliament and that a recent High Court ruling has shown that a colonial judge can be removed at the will of the Executive at any time without any reason given? Does not that make nonsense of the statement which my right hon. Friend made last week that a colonial judge enjoyed the same security, and is he not quite wrong when he endorses the statement of his predecessor that there is no difference between the two? Does he not agree that this is a matter for investigation?

Mr. Lyttelton

I think that my hon. and learned Friend is quite right in taking a particular interest in this Question. He has, in the course of his supplementary question, attributed a number of statements to me which I did not make. In the case of a dismissal, as I have said, it would require the assent of the Secretary of State and reference to the Judicial Committee of the Privy Council. I am satisfied that de facto colonial judges enjoy the same immunity from dismissal from the Executive as High Court judges in this country. If that position can be improved upon by any practical methods. I will examine them.

Mr. Marlowe

My right hon. Friend is misinformed again, because in the particular case in which High Court proceedings were taken there was no reference to the Judicial Committee of the Privy Council at all. His Department keep maintaining that people cannot be removed without close investigation by the Judicial Committee and that they enjoy the same security as in this country, but this particular judge was removed without any such inquiry and without any cause of complaint made against him.

Mr. Lyttelton

My hon. and learned Friend keeps on referring to the dismissal of this judge. He was not dismissed.

Mr. Gordon Walker

If the right hon. Gentleman says that these colonial judges enjoy the same practical security as judges here, would it not be wise to give them the same legal security, as well?

Mr. Lyttelton

That is a question that I am quite willing to examine. It is not quite so simple as it sounds, because it would probably have to depend on local legislation and local legislation can be set aside by other local legislation. I am willing to re-examine the matter, but my present opinion, which is liable to change, is in fact—[Interruption.] Anybody's opinion can be changed on examination of the facts. It is only the obstinacy of some hon. Members opposite which leads them to take a wrong view.

33. Mr. Marlowe

asked the Secretary of State for the Colonies upon what date his Department decided that the appointment of Mr. Terrell as a judge in Malaya was an appointment held at the pleasure of the Crown; and why Mr. Terrell was not so informed, either at the time of his appointment or in the correspondence between 1942 and 1952, prior to the legal proceedings taken by him.

Mr. Lyttelton

Such apointments have always been regarded as held at the pleasure of the Crown, and there was thus no need either to decide, or to inform Mr. Terrell about the nature of his tenure of office. In a Petition to The King in May, 1946, Mr. Terrell admitted that a Malayan judgeship was held at His Majesty's pleasure.

Mr. Marlowe

Is my right hon. Friend aware that during 10 years of correspondence this defence by his Department was never raised at all? It was only when the matter came to legal proceedings and, for the first time, the opinion of Counsel was taken, that this point was put in the pleadings last year. Does he not think that the real position is that the Colonial Office do not know themselves and have never suggested otherwise until they took legal advice on the matter?

Mr. Lyttelton

I am afraid that once again my hon. and learned Friend is misinformed. In 1946 the relevant paragraph in the Petition began: Your petitioner admits that, according to ordinary law, a Malayan judgeship is held at Your Majesty's pleasure.

Mr. Marlowe

Has my right hon. Friend looked at the correspondence in this matter? Whatever the legal point of this matter may be, is he aware that this judge was appointed by letters which were addressed to him and which gave him a contract for seven years, and his office was terminated before that time was up? Does he not think that it is unworthy conduct of his Department to go back on a contract like that which was in plain writing?

Mr. Lyttelton

I am afraid that I cannot admit any of my hon. and learned Friend's premises in this case.