HC Deb 15 July 1953 vol 517 cc2031-3
24. Mr. Marlowe

asked the Secretary of State for the Colonies what were the considerations which caused his Department, following the Japanese invasion of Malaya, to terminate the appointment of Mr. A. Terrell as a judge of the High Court in Malaya, although he had not reached his retiring age, while at the same time the other High Court judges in Malaya were either retained on full pay or given alternative judicial appointments in the Colonial Legal Service.

Mr. Lyttelton

After the Japanese had occupied Malaya Mr. Terrell's appointment was terminated because it was impossible for him to discharge the functions of his office. There was no other suitable employment in the Colonial Service which my predecessor could have offered him at the time. Mr. Terrell was over 60 at the time and his age was a factor which contributed to the difficulty of finding him other employment.

Two other judges who were absent from Malaya at the time of the occupation were on leave in East Africa. One served under the War Office for over two years and was then appointed as judge in Kenya at the request of the Kenya Government. The other was reemployed as judge in Uganda at the request of the Uganda Government. The remaining judges were interned. They did not receive full pay, but after release were given arrears of salary less 10 per cent.

Mr. Marlowe

Does not that mean in effect that all the judges were in the position that they could not discharge their offices, but only this one was singled out for exceptional treatment and his appointment brought to an end while the other two who happened to be in the same position were in fact ultimately given other judicial appointments which compensated them for their loss of office? Has not this unfortunate man been given unique treatment different from the rest?

Mr. Lyttelton

I am afraid that I have nothing to add to the factual statement which I have made.

25. Mr. Marlowe

asked the Secretary of State for the Colonies whether he is aware that Mr. A. Terrell, a former High Court Judge in Malaya, was appointed by an exchange of letters with the Colonial Office which created a contract that he should remain in office until the age of 62; that the Lord Chief Justice has ruled that such contracts are unenforceable against the Crown; and whether, nevertheless, he will advise Her Majesty to waive the privilege of the Crown and treat the contract as though made between ordinary subjects.

Mr. Lyttelton

The Lord Chief Justice held that there was no contract and he regarded the correspondence as merely telling Mr. Terrell of the age of compulsory retirement and of the pension at whatever age he retired that he might expect. The last part of the Question does not therefore arise.

Mr. Marlowe

That is an answer of casuistry. In effect the Lord Chief Justice did not find that there was a contract, because it was not necessary for him to do so. What he found was that any such contract, if made, was unenforceable. Therefore, it was not necessary for him to decide whether there was a contract. Is my right hon. Friend aware that these letters would amount to a contract between ordinary subjects, and is not it discreditable that a Government Department should enforce a privilege which is not open to ordinary subjects?

Mr. Lyttelton

I have in front of me the judgment of the Lord Chief Justice. He said: … a judge holds office by Royal Appointment and not by contract. He also said: … I regard the correspondence merely as telling him of the age of compulsory retirement and of the pension at whatever age he retired that he might expect. There is no need for hon. Members opposite to cheer, because all this was done under their administration.

Mr. T. Reid

Is not it a fact that this judge was not dismissed in any sense of the word?

Mr. Lyttelton

He certainly was not dismissed, but his appointment was terminated just before the retiring age because there was no longer any opportunity for him to exercise his functions.